<<
>>

§2. Concept "terrorism" of an international law science

Definitivnaja the ambiguity in sphere of struggle against terrorism is considered one of the central and traditional problems interfering successful

To international legal struggle against terrorism.

Researchers carry concept of terrorism to the most ambiguous and multiplane, marking the big difficulties connected with development of its adequate theoretical definition, explaining it is complexity of a phenomenon of terrorism, it mnogoaspektnostju and historical variability. The modern life does not allow the world community to carry out search of the conceptual device comprehensible to all parties, counteraction mechanisms in a quiet mode. The world constantly lives in expectation of terrorist threat [200].

The international community cannot definitively adjust legal definition of concepts "terrorism", «a terrorist crime», "act of terrorism". In a question of the basic concepts we will recognise that in international law independent concepts "terrorism" and «a terrorist crime» should be fixed.

It is impossible to agree with the position stated in the scientific literature according to which definition of a phenomenon "terrorism" has no legal maintenance [201].

A.H.Abashidze writes, that «... Any model, any convention on struggle against terrorism in the absence of the uniform approach of the states on the conceptual device and the categories used in these models and conventions, turn to fiction» [202].

Being the difficult sociopolitical phenomenon, terrorism, by the nature, prestupen in all displays. Its this quality was repeatedly marked in documents of the United Nations [203]. Its antagonistic contradiction to legal bases of our society, international law principles - is a principal cause of formation of a legal definition. The accurate understanding of legal properties of terrorism is a necessary precondition of forming of complete system of measures under the prevention and counteraction to it.

So, how the concept "terrorism" of the international legal science should be formulated. Enough considerable quantity of scientific researches [204] is devoted this theme.

Terrorism signs as special phenomenon in system mezhdunarodnopravovyh relations were repeatedly established in antiterrorist conventions of the United Nations and the regional organisations, in resolutions SB the United Nations. For example, in resolution SB the United Nations 1566 (2004) it is told, that never can be justified «... Criminal certificates, including against the civilians, made with intention to cause death or a serious damage to health or to grasp hostages on purpose to cause a condition of horror in the wide public, either group of people, or separate persons, to intimidate the population or to force the government or the international organisation to make any action or to refrain from its fulfilment and representing crimes on sense of the international conventions and the reports, concerning terrorism...» [205]. In this norm has found fastening a number of signs: the violence dangerous to a life and health, creation of conditions of horror (terror) and compulsion of power structures to certain behaviour, sending to the international antiterrorist agreements. The made definition, in connection with standard character of resolutions SB the United Nations, to the devoted measures necessary for maintenance or restoration of an international peace and safety (item 39 of the Charter of the United Nations), can be regarded as the general rule, obligatory for application by the states [206].

One more definition of terrorism contains in item 2 of the International Convention on struggle against terrorism financing (1999):

«1. Any person commits a crime..., if it... Gives means or carries out their gathering... For fulfilment:

a) any act representing a crime according to sphere of application of one of contracts, listed in the appendix, and to definition containing in it;

b) any other act directed on causing death of any civilian or any other person who are not accepting active participation in military actions in a situation of a confrontation, or to cause it a heavy physical injury, when the purpose of such act owing to its character or a context consists in intimidating the population or to force the government or the international organisation to make any action or to refrain from its fulfilment ».

Owing to a wide range of participants of this Convention (187 states) [207] also it is possible to consider the made definition as the adjusted international community with a view of struggle against terrorism [208]. I.Majja who writes adheres to the Same point of view, that the uniform conventional concept "terrorism" is developed, but technically is not issued; its absence became a consequence of exclusively political costs [209]. H.Daffi on the basis of the analysis of international agreements does a conclusion, that «accurate and exact elements of definition... Have collected the international support» [210].

A.Kasseze repeatedly said, that the international community has developed the general understanding of what to understand as concept "terrorism" [211].

In favour of existence of a uniform international legal definition "terrorism" expressed So-called Moskalkova, V.N.Prokofiev, A.Volevodz, Zijad Zaher Is uniform, K.Ward, B.Sol and many other things researchers [212].

The counterterrorist committee of the United Nations (further - KTK) considers, that in political and legal practice there was the general (opinio juris) understanding of the nature of terrorism; it is quite enough of it for struggle against this phenomenon [213].

But there are the authors sceptically concerning idea of development of uniform definition. So, among domestic researchers the supporter «impossibility of creation of concrete text definition of terrorism and absence of necessity for that» is Moiseyev A.I [214]. E.S.ShChebljakov wrote about exclusive complexity, and can be, even impossibility of development obshchepriemlemogo, universal definition of terrorism [215].

R.Nobel is considered, that by right harmonisation at global level, unlike regional level where it has shown success, is not achievable from - for obstacles of political, diplomatic and legal character [216].

Really, for all years of struggle against terrorism did not stop academic, pravotvorcheskie attempts to define necessary volume of its legal signs. In 1984 by A.P.Schmidt it has been analysed more than 100 definitions of terrorism [217]. Now it is not obviously possible to make exact calculation of all existing variants of scientific definitions - their quantity is so great.

Pays attention, that the majority of international legal documents is devoted struggle against terrorism in general, and not just with its international variant. So, in universal antiterrorist conventions of the United Nations «international terrorism» it is mentioned only in the Convention on hostages of 1979, in a preamble of the Convention on physical protection of a nuclear material of 1980 (in edition of 2005), in a preamble of the Convention on struggle against the illegal certificates directed against safety of sea navigation on 1988 All criminal certificates, for struggle with which have been made United Nations conventions, have been named by "expression of the international terrorism» in the Declaration on measures

On liquidation of the international terrorism 1994г. The similar rule is in Global counterterrorist strategy of the United Nations. Thus, the majority of conventions, other documents of international law are focused on struggle against a wide spectrum of displays of terrorism. Such approach is represented true. The international law should establish the general instructions of struggle against terrorism.

The analysis doktrinalnyh researches and legal documents of system of the United Nations and regional associations allows to offer the most significant signs of terrorism which reflect politiko-legal essence of the given phenomenon.

First, the terrorism is difficult sociopolitical

The phenomenon which should admit all variants a crime.

Secondly, in its basis the political violence concerning separate persons, the states, the international organisations, all world community in whole or its separate parts lays.

Thirdly, terrorism always politically tseleobuslovlen. It

Destructive force is directed on change existing sotsialnopoliticheskogo devices, its blasting, destabilization, on destruction tsivilizatsionnyh bases. Tactics of prompting of social fear and horror which in concrete terrorist acts can constitute the independent criminal purpose is for this purpose used.

Fourthly, the terrorism uses tactics of the mediated influence on subjects of political process through criminal influence on civilians.

Fifthly, it is carried out mainly in the form of the organised activity.

The signs of terrorism listed above are necessary for development of its general concept which, first, will help to solve the major, connected with terrorism, the international, political and legal problems; secondly, will form a basis of creation of international legal system of measures on counteraction to it; thirdly, will allow to allocate intrinsic signs of separate kinds of activity of terrorist character; fourthly, will give the chance to understand an essence of the considered antilegal phenomena and to state them an estimation from a position of norms of international law; fifthly, will promote differentiation of terrorism and national-liberation movement; in - the sixth, will create a theoretical basis of successful interaction and coordination of antiterrorist activity of special services of the various states.

The revealed signs of terrorism carry definitivnyj character and basically can be correlated both with intranational, and with the international variant of terrorism. The author of dissertation earlier in work has drawn a conclusion on uniform historical roots and the general evolution of terrorism, both interstate, and international. Considering this circumstance, it is important minimalizirovat risks of conflict conflicts of norms of national legislations and norms of international law, to create at the international level the legal conditions providing package approach, focused on correct implementatsiju international legal instructions in sphere of struggle against terrorism in the internal law [218]. Under O.N.Hlestova's fair remark, rupture between mezhdunarodnopravovymi norms and the internal law, practical actions of the countries fatally influences counteraction to terrorism [219].

For harmonisation of national legislations and formation of universal rules and mechanisms of struggle against terrorism, it is represented correct to fix at United Nations level a uniform definition "terrorism", having included in it both the international and national version of this phenomenon. Global counterterrorist strategy of the United Nations as the universal international legal basis, called to harden national, regional and international efforts on struggle against terrorism [220] is thought, that, is capable to become the base document in which will find fastening concept "terrorism".

Let's notice, that at formation of an international legal definition "terrorism" it is necessary to consider the proved opinion of Committee of the United Nations under the prevention of criminality and struggle against it (1990), that with a view of ugolovnopravovoj struggle against terrorism displays it is preferable to define its concrete forms unacceptable from the point of view of the international community, and to develop measures of reaction to them [221]. Basic position of criminal law - condemnation possibility only for precisely defined, without the ambiguities, recognised criminal act [222], demands the maximum concrete definition of structures of terrorist crimes. The general definition of terrorism mismatches this requirement, cannot become the basis for impeachment. It is thought, that the concept and kinds of terrorist crimes should be carefully fixed in the Universal convention on the international terrorism.

The offered approach on identification of intrinsic lines of terrorism is not the only thing in jurisprudence and practice. So, for example, R.Young allocates five characteristic lines of the given act: injury, the contradiction to the law (right), intimidation or compulsion, a victim admit the individual and (or) property, absence of special rules about motive [223]. This point of view of the representative of jurisprudence of the state with general law legal system reflects the analysis of criminal action accepted in the case environment. As a whole each of the allocated signs is objective, has the right to existence. But, as it is represented, the system of signs offered by R.Young is fragmentary, is not high-grade. Besides, it is possible to find elements of crossing, repetition in the lines allocated with the researcher. So signs "injury" and a recognition of the individual and property "victim", for example, have in many respects something in common.

In Preliminary decision STL from 16.02.2011г. It is allocated three conventional signs of terrorism, cognizable to the international court of justice: fulfilment of criminal action or threat of such certificate, intention to sow fear among the population, presence of a transnational element [224]. According to STL, these signs reflect opinio juris, have got the status of usual international norm [225]. In this case, it appears, the list of the allocated signs has subjective character. The analysis presented in given work proves presence of more developed system konventsionno the adjusted lines of terrorism. M.Dzhillett and M.Shuster, estimating the Preliminary decision as an example of "the accelerated justice» {fast-track justice), express disagreement with the offered Lebanese tribunal the approach. Authors say, that the given variant of signs - is the least general denominator of the approach adjusted in the world to definition of terrorism [226].

In legal documents of system of the United Nations and other international organisations two terms, by semantic image connected by the friend with the friend are in parallel applied: "terrorism" and «the international terrorism». However neither in it is international - legal documents, nor in the international law doctrine it is not offered system vision of discriminating signs of "the international terrorism» which would allow to build its accurate legal model. The fastening question in sign international law "mezhdunarodnost" for acts of terrorist character matters not only for development of an international legal science, but also for the decision of a question of conformity of national criminal law to the international standards including because since 2016 to Russia the independent criminal liability for certificates of the international terrorism [227] has been entered.

As shows the carried out analysis of various scientific views, the majority of researchers recognise the international terrorism as the independent form. In particular, authors allocate its characteristic lines which, in their opinion, can become a legal basis for independent criminalisation of certificates of the international terror. At dissertational level the positions connected with the offer to establish in domestic UK special article «International terrorism» [228] were repeatedly protected. Similar offers and in the scientific literature [229] are stated. Extended Enough in jurisprudence it is possible to consider opinion, that transnational certificates are continuation of interstate terrorism, do not demand special qualification [230]. The Russian criminal law adhered until recently to the similar approach, did not provide special responsibility for the international acts of terrorism.

Let's consider, what approaches are offered for definition mezhdunarodnosti the investigated phenomenon. At the international level a question about

Specific signs of the international terrorism yet has not found the uniform decision.

In some antiterrorist conventions of system of the United Nations for allocation of the international form of terrorism two objective signs are offered: territory of committing a crime and a state-legal accessory of the subject. So in the Tokyo convention of 1963 the rule according to which the state which is not the state of registration of an air vessel, has the right to exercise jurisdiction concerning a crime made onboard, in cases if is established: the crime has consequences in territory of such state; b) the crime is made by the citizen or concerning the citizen of such state or the person constantly living in such state, or concerning such person;) the crime is directed against safety of such state; d) the crime consists in infringement of any rules operating in such state or the regulations concerning flight or maneuvering of air vessels; Jurisdiction realisation is necessary for maintenance of performance of any obligation of such state under the multilateral international agreement [231].

In the Convention on struggle against bombing terrorism (1997), in

The international convention on struggle against terrorism financing (1999), in the International convention on struggle against androlepcy (1979) and some other conventions it is established a uniform rule according to which corrected conventions are not applied: when the crime is made within one state; when the hostage and the prospective criminal are citizens

One state; when the prospective criminal is in territory of this state [232].

Whether provide the signs offered by conventions necessary level of protection against transnational terrorism? The approach fixed in specified agreements limits mezhdunarodnost to two objective criteria: territory of committing a crime and the subject of act. Behind frameworks of legal identification there were such elements, as the purposes, character of the caused damage, a state-legal accessory of victims. The given criteria as it is represented, are of great importance at definition of the legal nature of the phenomenon of terrorism, also can express internationality of the given act. From the practical point of view restriction of signs of the international variant of terrorism by only objective factors can essentially complicate search, investigation and the prevention of a terrorist crime, to create obstacles for interstate cooperation in pravoprimenitelnoj to sphere.

It is represented, that development of uniform global approaches to definition of intrinsic signs mezhdunarodnosti acts of terrorism is one of paramount problems of universal conventional base. Interstate struggle against terrorism pursues the eradication aim, first of all, its international ipostasi as the most dangerous and demanding world interaction. In favour of more accurate contractual fastening of a sign "mezhdunarodnosti" it is possible to name additional argument idea of a recognition of international jurisdiction concerning certificates of international terrorism. In Preliminary decision STL from 16.02.2011 among three constructive signs of terrorism, cognizable to the given body, transnational character has been named. In the decision it is accurately specified, that the international court has the right to consider the cases, connected with a crime of terrorist character, only in the event that at it there is a transnational element [233].

The Interpol in 1984 the resolution has installed the Management on struggle against the international terrorism in which has provided its following signs:

- The material base of criminals has transnational character (literally: material support of group of principal offenders has a foreign origin; constant or time networks of material and technical support of crimes mention or are more than in one state; tools or the tools used in activity of the terrorist organisation, mention more than one state);

- The perpetrator including collective, comes within the jurisdiction more than one state (literally: the crime is made by the terrorist organisation, before involved in the terrorist crimes having the international importance; one or several persons involved in a crime, are not citizens of the state in which it is made);

- The crime territorially mentions some states (literally: the crime begins in one state, and comes to the end in other; the crime is planned or prepares in one state, and is carried out in other);

- Financing or operations on money-laundering of the terrorist organisations are carried out in other state;

- The purposes of the terrorist organisation extend more than on one state;

- The damage caused as a result of act, has the international character

(Literally: the damage put by a crime, mentions the various states or the international organisations or the enterprises with foreign participation; a victim of a crime are citizens of the various states or the people connected with activity of the international organisations) [234].

The similar approach by definition mezhdunarodnosti act of terrorism the J adhere to JU.M.Kolosov, L.A.Modzhorjan. Levitt, S.I.Grachev, V.N.Lukin and T.V.Musienko [235].

Earlier operating domestic Federal act № 130-FZ from 25.07.1998г. «About struggle against terrorism» in article 2 named terrorist activity international if it was carried out: 1) the terrorist or the terrorist organisation in territory more than one state or aggrieved to interests more than one state; 2) citizens of one state concerning citizens of other state or in territory of other state; and also in case the terrorist and a victim of terrorism were citizens of one (different) states, but the crime was made outside of these states [236].

J.M.Antonjan, E.Narbutaev, F.Safaev, concordant with the variants allocated in the specified law, have added with their several more situations: 1) act of terrorism is directed against the persons using the international protection; 2) preparation for act of terrorism is led in one state, and carried out in other; 3) having made act of terrorism in one state, the terrorist takes cover in other and there is a question on its delivery [237].

In scientifically-legal in the literature other points of view concerning characteristic signs of the international variant of terrorism are stated. So, A.I.Dolgova writes, that «... The international criminality judge on its display in territories of the different countries, not always discriminating the international criminality, foreign criminality, criminality of migrants» [238].

N.V.Prokofiev sees display mezhdunarodnosti in special object of an encroachment, considers, that it is possible to speak about act of terrorism as international if it is damnified the international relations, to the international law and order, the state sovereignty, system of diplomatic communications, system of the international communications [239].

A.P. Smiths, with N.N.Marshakova as signs mezhdunarodnosti allocate a special circle of the public relations connected with

Interstate communications and the international law and order, injury to the world community, an orientation on achievement mezhdunarodnopravovyh the purposes [240].

JU.I.Avdeev names the cores, having conceptual,

definitivnoe value, signs of the international terrorism:

The international law and order as specific object; the international character of the damage put by terrorists; the international character of the actions made by terrorists; an accessory of the terrorist and a victim to the different states; fulfilment of the violent certificate in territory of the foreign state; an origin from the different countries of forces and means of terrorist group [241].

U.R.Latypov, investigating in 1988 the state forms of terrorist activity, saw mezhdunarodnost available the international legal purposes and an encroachment on the international order. [242] similar points of view adhere to A.JU.jacket [243].

S.E.Serkerov allocates the international terrorism on the purposes, considers as those blasting of the international relations, the international law and order; actions against the state, the nations, the international organisation. The researcher obosnovanno specifies, that actions which include a foreign element, not always should be qualified as international [244]. Nevertheless the researcher carries to the international variant of act of terrorism intrusion of the Chechen band into 1999 on territory of Dagestan because the purpose of their activity has been during the investigation established: change of an existing political system in Russia [245]. It is thought, that in this case there are bases to speak about mezhdunarodnosti no purpose: attempt of change of the political system, carried out within one state, does not bear in itself the international element, structurally corresponds to signs of an interstate crime.

As A.Bergesen and O.Lizardo consider terrorism international if the executor, target group - "victim" belong at least to two countries or event (act of terrorism) has a language or national context.

According to a position of the given authors, A.Sadata's murder in 1981, made by Brothers-Moslems in Egypt, opposition between Palestinians and Israel are examples of internal terrorism, and al Kaide attack on September, 11th, abduction and murder of the Israeli sportsmen during the Munich Olympic Games of 1972, murder of the American missionaries in Yemen are examples of the international terrorism [246].

The Ministry for Foreign Affairs of Australia suggests to consider terrorism international if it differs extremist ideology, the global purposes and distribution territory, network character, use of the nonconventional weapon [247]. It is represented, that the given approach consolidates as legally significant signs of the investigated phenomenon (the purpose, distribution territory), and the lines characterising its politiko-social essence.

R.E.Adelhanjan [248] allocates three enough a disputable sign: first, in its opinion, the subject of the international public law can be the subject only. It essentially narrows a circle of persons, capable to bear responsibility for acts of terrorism in the international space. Secondly, the author names the basic sign injury or threat of such causing to interests of the public safety of two or more states. It is represented, that such approach serves as the unreasonable terminator of object of criminal action, does not consider all potential variety of the public relations, capable to undergo a damage from investigated act. Third sign offers to consider circumstance of fulfilment of act only in a peace time. In this case excessive restriction again takes place: The terrorist crime can take place and during military actions including representatives of conflicting armies, it does not influence its intrinsic characteristics, cannot be considered as a substantiation for change of legal qualification. The military sign of act of terrorism, it appears, necessarily should be considered as the important circumstance, but not to create the separate corpus delicti.

S.A.Nazarov criticises the most popular in domestic legal science doktrinalnye signs of the international terrorism to which carries: an accessory of the terrorist and a victim to different nationalities,

The international purpose, objective and subjective influence on

The international system, territorial localisation of act of terrorism in the several states, presence of the international response to the taken place act of terrorism. The researcher considers, that all of them reflect only aspektnye, narrow and not always actual within the limits of the modern globalized society of a side of the international terrorism [249].

S.A Nazarov own system approach to definition mezhdunarodnosti does not offer act of terrorism, but from the analysis of its work it is possible to draw a conclusion, that the international terrorism, in its opinion, includes two versions: transnational, meaning export of terrorist violence for borders of the state group of people or the private person, and "actually international" behind which actions there is a state [250]. Similar classification was offered earlier by S.I.Grachev [251].

With the offered S.A.Nazarovoj, S.I.Grachev the approach to agree difficult. The neglect system of the signs allocated in a science mezhdunarodnosti is represented not absolutely true. Really, a part from them, such as the various ethnic accessory of a victim and the criminal, international reaction to event of act of terrorism in the conditions of the global world cannot apply for the status of intrinsic international qualities. However the act purpose, broken public relations, prevalence of act of terrorism - all it, undoubtedly, specifies in the international nature of crime and can become qualifying signs. It is impossible to recognise proved and an identification of the state and international terrorism. It contradicts an objective reality, ignores numerous examples of fulfilment on its own behalf and in the interests of acts of terrorism by the network organisations. The question on the state character of terrorism requires in special, in-depth study which will be given in other section of work.

In S.A.Nazarovoj and Gracheva S.I.'s concepts the term "transnational" terrorism which is understood as a version (variant) of the international is used.

In a science there is no uniform standard approach to a question on a parity of "transnationality" and "mezhdunarodnosti" in terrorism.

So, G.A.Drobot, A.V.Taran, V.N.Kulebjakin and I.Sinjakin [252] consider, that the given terms - synonyms. S.V.Kortunov, L.A.Jaroshenko, M.A.Kulagin the [253] terrorism which is falling outside the limits one state, name transnational. D.N. Profiteers allocates as specific line of the international terrorism - its transnationality [254].

D.V.Zerkalov writes about two versions of the international terrorism. It carries to the first kind transnational are various actions of not state terrorist organisations in other states, but without the purpose to affect the international relations. The second kind is international criminal terrorism which is directed on competing criminal groups in other countries [255]. It is represented, that the given classification is behind legal field frameworks, represents a sight of the political scientist at an investigated problem.

The original concept of the international and transnational terrorism belongs to Spanish researcher F.Rejnaresu. It identifies the given phenomena to two basic signs: to the purposes and distribution scales. In its opinion, the transnational terrorism is the general category including as the version the international form. In the investigated concept the transnational terrorism is the political violence which is crossing borders of the state and carried out more than in one country and concerning persons others (other) nationalities. The author considers, that all modern terrorism, with rare exception, has transnational character [256].

As arguments it results a number of arguments.

First, according to the researcher, practically all terrorist organisations existing now are focused on activity in the several states: «today it is very difficult to name the organisation which regularly participates in the terrorist activity which does not have of transnational character to a greater or lesser extent, whether it be regarding mobilisation of necessary resources for maintenance of its underground structure or planning and realisation of attacks» [257].

Secondly, the majority of the acts of terrorism registered all over the world last years, are connected with the political ends focused on achievement of result in two or more states.

F.Rejnares considers, that these signs do not speak about real international scale of act [258]. The researcher allocates two variants of the terrorism which is falling outside the limits one state: transnational (the general category) and international, representing the most dangerous, heavy form on consequences.

As discriminating lines of the international terrorism of F.Rejnares suggests to consider: its purposes - deliberate influence on structure and power distribution in regions and at global level; system of the organizational network structure which are carrying out activity in considerable number of the countries and geopolitical regions. An example of similar structure the author names movement neo-salafistov (global jihad Salafi) [259].

As a whole F.Rejnaresa's idea about heterogeneity of the terrorism which is falling outside the limits one state, and the various social danger of a spectrum of the acts consolidated within the limits of the given phenomenon can be supported. It is thought, that the legal estimation of such acts should be carried out by uniform qualifying rules, without allocation independent, so-called "transnational" and "international" terrorizmov. The gradation on social danger and degree level globalnosti the harm caused by a crime, can become a basis for pravoprimenitelja at a choice of a kind and the size of punishment for a terrorist crime. It is impossible to agree and with unduly overestimated estimation of all variativnogo of some modern terrorist acts, with its representation as transnational movement. It is impossible to ignore internal terrorism, to refuse a recognition behind it of an independent role.

Use of terms "international" and "transnational" in relation to the terrorism which is falling outside the limits one state, is obviously possible as follows. In is formal-legal aspect as definitivnyj an element, it is necessary to fix «the international terrorism» as more answering to semantic value of the term and traditions of the developed legal international legal technics. Within the limits of a statement and the material analysis is admissible to use the term "transnational" as a synonym, not putting in it any other additional sense.

Thus, summing up the retrospective analysis, we will notice, that in law-making and judiciary practice, jurisprudence there is no uniform, system representation about definitivnyh signs of the international terrorism, sights of researchers are characterised in bolshej to a measure by variability, than similarity. And. G.Volevodz obosnovanno sees in it serious deficiency of national (interstate) legal bases of the international cooperation in struggle against terrorism [260]. Besides, such position testifies about dominating conditional, "organolepticheskom" representation to essence of the international terrorism. It is possible to draw a conclusion about doktrinalnom and practical pluralism of understanding of the given concept and on presence of different interpretations in its treatment in the right at the international and national level.

Let's offer the concept of concept «the international terrorism». First of all we will notice, that in the international space a base category in antiterrorist sphere is "terrorism". It can give a following explanation.

First, as it has been specified above, the international community should carry out a policy on struggle against terrorism as a whole, not going in cycles only on its international variant. Thus, we will repeat, any display of terrorism criminally.

Secondly, from the legal point of view "mezhdunarodnost" terrorism is not the quality structurally influencing qualification of act: all major signs established for terrorism, take place to be in its international version. "mezhdunarodnost" creates the raised danger and, accordingly, gives the bases for more severe punishment for fulfilment of such crime, but it can not be regarded as an occasion to formation of a new kind of criminal action.

Thirdly, international legal antiterrorist norms have the purpose struggle against any displays of terrorism. From this point of view not essentially, whether the sign "mezhdunarodnost" at a stage of preparation of terrorist act, or as a result of criminal behaviour development is shown, or expressed in the form of criminal consequences.

Fourthly, practically any terrorist crime can have both national, and the international variant. The attention of the international community and cooperation of the states should be both in the first and in the second cases. In case of a recognition of "the international terrorism» an independent legal phenomenon it will be logical to criminalise all its displays. It will entail unnecessary duplication of antiterrorist norms in the criminally-legal purposes.

Thus, "mezhdunarodnost" terrorism from the legal point of view it should be considered at identification of signs of a terrorist crime, instead of terrorism as phenomenon. It is represented, that the term «the international terrorism» can be considered settled in the international political practice, but from the legal point of view more correct is the concept «a terrorist crime of the international character».

According to the author of dissertation, "mezhdunarodnost" a terrorist crime it can be realised in all elements of the corpus delicti. We will consider the given question more in detail.

Proceeding from already spent analysis obviously, that the terrorism is a difficult sociopolitical and legal phenomenon, many-sided under the maintenance and poliformnoe to external signs. The international law fairly obliges the states to establish responsibility for various kinds of terrorist crimes. It is thought, that in the international space fulfilment practically any terrorist act is possible.

The close point of view stated, for example, E.G. Poles and I.P.Safiullina which consider as the one-serial phenomena terrorism and the international terrorism, do not see the bases for differentiation of acts of terrorism on interstate and international [261].

Let's consider, how can be defined "mezhdunarodnost" terrorist crimes.

In a criminal law science it is considered to be object of an encroachment the basic criterion for differentiation of crimes [262]. It is represented, that it to the full can be carried to differentiation of the national and international form of a terrorist crime.

JU.S. Humpbacks, considering object of an encroachment both international, and interstate terrorism, writes, that it lays in non-material sphere and represents the political relations which changes achieve террористы269.

In accepted in the USA in 1984 the Universal law on the control over criminality it is reflected, according to J.S.Gorbunova, one of the basic features of the terrorism characterising both interstate, and its international version: act of terrorism usually means the criminal action directed on management by object of terrorist encroachments by means of influence on specially selected victim. This sign, according to the author, is key at reference of crimes to number terrorist, except for those rare cases when object of influence and (or) intimidations and object of management of terrorist encroachments coincide, for example, at an encroachment for a life or freedom of the individual, connected with its political activity as independent deputy [263 [264].

N.V.Prokofiev specifies in a three-particular of object of an investigated crime: metaobject (rezultirujushchy object) - the international relations and the international law and order; the general (the basic, planned) object - activity of the state bodies, the international organisations, physical or legal bodies; direct (facultative) object - a life and health of physical persons, and also movable and real estate physical and legal bodies and the state [265].

V.F.Antipenko has come to conclusion, that direct object of terrorism is the political mode, a state system and territorial integrity of the concrete countries. Efficiency of influence on direct object in terrorism can be realised through the general object - infringement of the international law and order, i.e. the general object in this case can play a role of intermediate object. At level of act of terrorism at all compulsory attendance (existence) of the counteracting party as it, in effect, is made concerning casual people and objects [266].

Besides, in jurisprudence as the basic objects of the international terrorism are called:

- Preservation of the world, safety and friendship of the states, condition of stability of the international system [267];

- Interstate legal relations and the law and order, the world and safety [268];

- The major interests of the international community [269].

Universal certificates give us examples opinio juris object investigated

Crimes. So, SB the United Nations has declared, that «the terrorism in its forms and displays represents one of the most serious threats to the world and safety» [270].

The project of the Universal convention on the international terrorism in a preamble establishes, that «certificates, methods and terrorism practice represent rough neglect the purposes and United Nations Organization principles that can threaten an international peace and safety, to threaten friendship between the states, to interfere with the international cooperation and to lead to blasting of human rights, fundamental freedoms and democratic bases of a society» [271].

In Preliminary decision STL from February, 16th, 2011 it is specified, that mezhdunarodnost crimes consists in attempt (attack) at universal values [272].

It is thought, that in all named cases the object of the international terrorist encroachment is understood widely enough, bears in itself both legal, and a political context. Proceeding from the requirement of practical application criminally-rule of law, it is necessary to concretise as much as possible possible variants of the given element of the corpus delicti. In particular, should be established, that that concern: criminal influence on the rights and interests more than one state and (or) on the rights and interests of the international organisation, the international community in whole, religious or an ethnic group living in territory another (other) states.

Debatable character carries the offer on inclusion of categories «an international peace and safety», provided in antiterrorist documents of system of the United Nations, as object of the international act of terrorism. The given question has the important practical value: the legal recognition as object of an encroachment of the specified elements is a powerful argument for giving to an investigated crime of the status of international, its reference in a category delictum hostis humanis generis and, accordingly, inclusions in jurisdiction of bodies of the international justice. Not calling in question the exclusive social danger of the international act of terrorism, overestimated the similar estimation as universal world threat, concrete terrorist crime nevertheless seems.

It is necessary to notice, that an estimation of an investigated phenomenon as a call to all mankind as global threat to the world and safety in bolshej to a measure has political, instead of legal sounding. Confirming to the given conclusion it is possible to result position SB the United Nations, which considers equally «potentially or in general» (potential or generic) menacing to the world and safety acts of terrorism, distribution of the weapon of mass destruction, distribution and illegal circulation of the shooting and easy weapon [273].

A.Bjanchi marks gradual semantic expansion of concept «threat to the world» in resolutions SB the United Nations last decades. If originally, the researcher writes, this term meant threat of the military action further it has extended on intervention in safe delivery of humanitarian cargoes, the organisation of streams of refugees [274].

In S.Tadicha's MTBJU business, estimating possibility of qualification of act as aggressions, specified that concept «threat to the world» in United Nations certificates is used as political conceptual, but not legal [275]. T.Otoj writes, that «threat to the world» as the circumstance generating imperious powers of Council, has discrete, political character [276].

If it is a question of a certain episode of a terrorist crime with the international element, as a rule, it is not supposed a global damage, threat to an international peace and safety is not created.

Within the limits of a following element of the corpus delicti - the objective party - mezhdunarodnost it can be expressed:

- In character of act, in case act of terrorism (including preparation for it) extends on territory more than one country;

- At approach of transnational consequences when harm is caused to interests of the international organisation and (or) to interests more than one state. The similar approach has found support in jurisprudence [277] and the international judiciary practice [278].

It is necessary to take up a question, whether the case of scale international negative reaction, condemnation of the occurred act of terrorism will be considered as a variant of approach of similar consequences. For example, in resolutions SB the United Nations accepted in reply to androlepcy in the Northeast in 2002, on bombing attacks in Kenya and to Bali in 2002, on acts of terrorism in Bogota and Istanbul in 2003г., in Madrid in 2004г., appeals sound to make accountable executors, organizers, sponsors; the determination is expressed to struggle with all forms of terrorism, are called the occurred crimes as certificates of the international terrorism, threat to an international peace and safety [279]. SB the United Nations in these resolutions without reserve has condemned «all certificates, methods and terrorism practice as criminal and not having justifications, irrespective of their motivation, in all of them forms and displays, where and by whom they are made». Attract attention two statements devoted to acts of terrorism, made in our country in 2004 (A.Kadyrov's to murder, school capture in Beslan, to explosions of planes of the company 37) 286. In spite of the fact that all these acts had internal character, SB the United Nations has carried them to crimes having the international value in connection with their considerable influence on the international interests and values.

It is known, that in the modern globalized world is universal-involved reaction to events and incidents, including negative plan was generated. Terrorism certificates are perceived as gross violation of norms of international law, including having character ergo omnes. There is a numerous base of certificates of the international organisations, official positions of the states sharply condemning similar crimes. Thus, it is possible to tell, that scale, tragical on consequences terrorist attacks, even interstate, attract the international consequences in the form of reaction of the states, the international organisations, the world community [280 [281]. It is represented, that in this case it is impossible to speak about is formal-legal, necessary for criminal qualification, approach of consequences. Such situation should remain outside of a legal design of a terrorist crime with a sign "mezhdunarodnost". Similarly should be estimated and other lines of the objective party: a place, a way, time of fulfilment of act. All of them do not create the special international legal nature of a crime.

At an estimation of qualifying qualities of the subject of a terrorist crime, from the point of view mezhdunarodnosti, it is necessary to agree with A.I.debt's discriminating the international and foreign criminality [282] opinion. It is represented true as a sign mezhdunarodnosti the subject of act of terrorism to allocate only its one variant: fulfilment of the given crime by members of the international terrorist group [283].

At last, in the subjective party of an investigated crime mezhdunarodnost it can be expressed in specific international legal and transnational (falling outside the limits one state) the act purposes.

All revealed signs mezhdunarodnosti, as a rule, are realised in concrete episodes of crimes in aggregate; they can vary, be combined by various image. Presence at least one of such signs should be good cause for a recognition of a terrorist crime international.

In connection with the spent analysis it is represented true to give the analysis to short stories of the domestic criminal law connected with prosecution of the international terrorism. Necessity of introduction of special provisions about responsibility for the international terrorism was discussed for a long time in the Russian legal community [284]. Introduction of similar rules, according to V.N.Lukina, T.V.Musienko, is directed on increase of efficiency of the law-enforcement activity directed on prevention and suppression of certificates of terrorism [285].

The federal act № 375-FZ from July, 6th, 2016 the Criminal code of the Russian Federation (further - UK the Russian Federation) have been added by new article «the Certificate of the international

Terrorism »[286]. It is the first attempt of criminalisation in Russian

The legislation of a similar crime. We will consider, what significant signs are allocated with the legislator in the given crime.

First, pays attention, that article devoted to the criminal liability for certificates of the international terrorism (361 UK the Russian Federation), is placed in XII section, in 34 head UK the Russian Federation (Crimes against peace and safety of mankind). It is represented, that it the legislator wished to underline the especial social danger of the international terrorism.

M.G.Levandovskaja names patrimonial object of the given group of crimes «the public relations developing as a result of observance of norms of international law and protecting bases of existence of the states and the people, and also main principles of maintenance of an international peace and safety (a principle of the peace resolution of disputes, non-use of force, inviolability of borders, territorial integrity, self-determination of the people and non-interference to internal affairs of other states, respect of human rights and diligent performance of the international obligations) which as a whole provide pacific settlement of disputes and the resolution of conflicts between the people and the states, and also protect safe conditions of existence of mankind» [287].

Adhering to this approach to definition of patrimonial object of crimes against peace and safety of mankind, the author of dissertation considers, that terrorist crimes, at all unconditional highest social danger, cannot be carried to this group of criminal acts. Character of the public relations which are under a sight of a concrete terrorist crime, does not possess so expressed sign of scale what is required for a crime recognition encroaching on «... Bases of existence of the states and the people, and also main principles of maintenance of an international peace and safety». It is thought, that having included the corpus delicti «Certificate of the international terrorism» in chapter 34 UK the Russian Federation the legislator has overestimated its sociopolitical importance.

Secondly, pays attention the legislator has included what acts in the objective party of the given crime. Article disposition names explosion, an arson or other actions endangering a life, health, freedom or inviolability of citizens of the Russian Federation (a part 1 item 361 UK the Russian Federation), and financing of the acts provided by a part of first named article or involving in their fulfilment (a part 2 items 361 UK the Russian Federation). Thus, the legislator has included in concept «the certificate of the international terrorism» fulfilment of act of terrorism, and in its truncated variant assuming causing only of physical harm and only to citizens of Russia, involving in its fulfilment and its financing. Outside of article there were other variants of terrorist behaviour as it is represented, not less dangerous and possible in the international variant: The organisation of criminal groups, management of them, participation in them, planning of their activity, propagation and popularisation of terrorism, its ideas, practice recruitment of physical persons, their training for the purpose of fulfilment of terrorist crimes etc.

Thirdly, the certificate of the international terrorism admits to that if it is made out of limits of Russia. It is thought, that in this case the legislator it is artificial has limited ratione loci the international act of terrorism. In territory of our state terrorist crimes (for example, financing of terrorist activity), the having for an object international legal consequences infringing on interests of all world community can be committed. It is represented, that similar acts too should be covered by a design of the investigated corpus delicti.

Fourthly, the purpose of the certificate of the international terrorism infringement of peaceful co-existence of the states and the people or an orientation against interests of Russia admits. A target component in this case it is possible to recognise washed away, unduly wide (assuming too variativnyj a number of legal interpretations), inconcrete and mismatching the purpose of a terrorist crime, before established in the domestic law and in the international agreements which participant is the Russian Federation. Without attention of the legislator in this case there was a sign "intimidation".

Fifthly, following logic of the legislator, inclusion in structure domestic UK the independent article devoted to struggle against the international form of terrorism, demands independent fastening in UK as a matter of fact, duplications, is absolute all already available rules, concerning interstate terrorism. Such element of legal technics cannot be recognised by logical, necessary and proved. Thus, it is possible to draw a conclusion, that the corpus delicti «Certificate of the international terrorism» as the first attempt of criminalisation of this phenomenon in the domestic legislation, requires serious completion.

Fastenings of its definition. In work are offered five signs of terrorism which it is system open its legal essence. The general concept of terrorism should be fixed in Global counterterrorist strategy of the United Nations.

The question on legal signs of the international terrorism concerns to debatable in the international law doctrine. A modern level of development of transnational criminality, globalisation of criminal processes staticized a problem of a concrete definition of the international form of terrorism. At the international level, in particular in special conventions of the United Nations, the accent is necessary on objective signs: the crime scene and a state-legal accessory of the subject. It is thought, that is minimum adjusted volume konstituitsiirujushchih lines of an investigated phenomenon thus is on a global scale expressed. However for the qualified and objective definition of essence of the international version of terrorism more developed model is required.

Let's formulate the most important signs of a terrorist crime of the international character.

First, in dissertational work it is shown, that from the legal point of view correct will concretise "mezhdunarodnost" in relation to a terrorist crime, instead of to terrorism as to a special phenomenon.

Secondly, mezhdunarodnost a committed terrorist crime involves higher degree of the social danger of behaviour and caused harm.

Thirdly, "mezhdunarodnost" a terrorist crime probably to define by means of transfer of its variants adhered to basic elements of structure.

In particular, in object mezhdunarodnost act of terrorism it can be expressed as criminal influence:

1) on the rights and interests more than one state;

2) and (or) on the rights and interests of the international organisation, the international community in whole, religious or an ethnic group living in territory another (other) states.

In the objective party mezhdunarodnost it can be expressed in character of act

1) in a case if act of terrorism (including preparation for it) extends on territory more than one country;

2) at approach of transnational consequences when harm is caused to interests of the international organisation and (or) to interests more than one state.

At definition of the perpetrator "mezhdunarodnost" it can be shown at fulfilment of the given crime by members of the international terrorist group.

In the subjective party of an investigated crime mezhdunarodnost it can be expressed in specific international legal and

Transnational (falling outside the limits one state) the act purposes.

All revealed signs mezhdunarodnosti, as a rule, can be realised in concrete episodes of crimes in aggregate; they can vary, be combined by various image. Presence at least one of such signs should be good cause for a recognition of the international character of a terrorist crime.

<< | >>
A source: CHERNJADEVA Natalia Alekseevna. the MODERN CONDITION And TENDENCIES of DEVELOPMENT of INTERNATIONAL LEGAL STRUGGLE Against TERRORISM. The DISSERTATION on competition of a scientific degree of the doctor of juridical science. Moscow -. 2018

More on topic §2. Concept "terrorism" of an international law science:

  1. CHAPTER 2. CONCEPT "TERRORISM" In mezhdunarodnopravovoj the SCIENCE And ANTITERRORIST CONVENTIONS of the United Nations
  2. §1 Formation and evolution of a category "terrorism" in the international humanitarian law
  3. CHAPTER 1. Methodological and theoretical aspects of international legal definition of concept "terrorism"
  4. § 3. Essence and the maintenance of concepts "terrorism" and «the international terrorism»
  5. § 1. Istoriko-legal aspects of development of concept "terrorism"
  6. §2. Prospects of inclusion of a crime "terrorism" in the Roman statute of the International criminal court
  7. § 4.2 Standards of "a fair mode» and "safety" as usual norms of international law
  8. the Chapter IV - Standards of "a fair mode» and "safety" in system of the international common law
  9. § 1. Opredelenieponjatija "criminal law" («Strafrecht») in a German criminally-legal science («Strafrechtsn'issenschaft»)
  10. § 1. Opredelenieponjatija "criminal law" («Strafrecht») in a German criminally-legal science («Strafrechtsn'issenschaft»)
  11. § 1. Approaches to definition of "the WTO right» in an international law science