The Concept of Maritime Terrorism Between Traditionalism and Expansionism: Re-thinking Maritime Terrorism as a Transnational Crime

The subject of this study is transformation of the legal concept of maritime terrorism and its rethinking as a transnational crime. The relevance of this study is determined by the fact that in international legal scholarship a kind of contradiction exists between traditional and expansionist views in terms of understanding the concept of maritime terrorism. The prevailing and traditional view suggests that maritime terrorism should be regarded as a transnational crime. However, the objective elements of maritime terrorism have some affinity with international crimes since certain acts of maritime terrorism may amount to crimes against humanity or war crimes. To a large extent the problem with defining maritime terrorism stems from the corresponding problem of defining terrorism more generally. Since no universal jurisdiction over maritime terrorism is recognized in international law, domestic courts need a basis in a treaty or a Security Council Resolution to exercise universal criminal jurisdiction over maritime terrorist crimes committed by non-nationals in a third State or on the high seas. Accordingly, maritime terrorism as an international crime may be brought within the jurisdiction of the icc or other international tribunals which, in turn, may solve some jurisdictional issues and would be a more comprehensive solution to the impunity problem. Furthermore, inclusion of maritime terrorism within the jurisdiction of the International Criminal Court or international tribunals fills the jurisdictional deficit in two possible situations: a) the case of negative conflict of jurisdiction, that is, if no State wants to investigate a crime; b) if there is a positive conflict of jurisdiction, namely, two or more States are in dispute over the right to jurisdiction. Accordingly, the need for direct criminalization of maritime terrorism may well be explained by O’Keefe’s and K.J. Heller’s international criminalization theories.