CC BY
17IШ■ ^Т^У
Л
Sarsembayev Marat Aldangorovich,
chief research fellow of Department of the international legislation and comparative law ofthe Institute of legislation of the Republic of Kazakhstan, d.j.s., professor
Sarsembayev Daniyar Maratovich,
Master of International Law (CG "Bolashak", Astana)
Editor - J. Newman, Professor of Law School of Harvard University
(Cambridge, Mass., USA)
SOME CONVENTIONS, KAZAKH AND AMERICAN LEGISLATION, UN STRUCTURES IN FIGHT WITH INTERNATIONAL TERRORISM
The concept of terrorism may be classified as either domestic or international according to the territory and membership of the terrorist groups. Joining of international treaties and national legislation on combating terrorism promotes in fight with international terrorism.
The Convention against the Taking of Hostages devotes to actual prevention of this international crime only one article at number 4, which encourages States to ban in advance organizations that set a goal of capturing hostages, and to coordinate their actions to prevent the taking of hostages by sharing information and taking administrative measures. We are not opposed to such approaches in the prevention of this type of crime, but at the same time we allow ourselves to believe that the above preventive measures are not enough.
The disadvantage of this Convention, in our opinion, is that it does not contain provisions on preventing nuclear terrorism, or preventing crimes of nuclear terrorist attack, or on the need for timely
notification about acts of nuclear terrorism. For the purposes of preventing such crimes the Criminal Code of the Republic of Kazakhstan, for example, contains an important article as Article 248, which qualifies as a crime the theft or extortion of radioactive materials, committed by an individual, a group of persons by prior conspiracy, repeatedly, by a person using his official position, using violence, not dangerous to life or health, or by the threat of use of such violence. A similar article of preventive character is Article 249 of the Code, which offers punishment for breaking the rules of handling of radioactive materials, i.e. the rules of storage, use, record keeping, disposal, transportation of radioactive materials, and other rules of handling, especially if it caused the death or other serious consequences. At the same time it is desirable to remove fines and restrictions on freedom from articles 248 and 249 of the Criminal Code of the Republic of Kazakhstan, and to leave only the punishment in the form of imprisonment and confiscation of property,
№ 2 (34) 2014 m. K,a3aKpmaH Pecnydnumcu 3aH, muzapy UHcmumymuHUH, mapmucu
based on the high degree of public danger of the criminal act. It would be a real contribution of the country in the fight against nuclear terrorism based on the Convention of the same name, to which the Republic of Kazakhstan is a state party along with 71 other states. In Section 2332 the American legislator classified radiation contamination as a serious crime and stipulated quite tough criminal penalties, which can also be classified as a preventive action on a possible commission of nuclear terrorism. In the same article the provisions to train people to fight terrorist attacks in highly specialized fields could be stated. These professionals could provide warning and prevention of terrorist attacks with focus almost anywhere in the country and, accordingly, in any country.
Due to the fact that there are dozens of cases of seizure, theft, smuggling of nuclear and other radioactive materials every year in the world, it is necessary to establish more stringent rules in the Convention. The Convention on the Physical Protection of Nuclear Material of 26 October 1979 must focus the states' attention on the need to develop rules on ensuring safety at nuclear facilities, their strict compliance and implementation of the mechanism of criminal responsibility in case of violation, but such a rule is not there. Meanwhile, the Convention could formulate a provision obliging each State party to establish criminal penalties for violation of safety rules during the design, construction, operation and maintenance of nuclear facilities in the event of death of people or radioactive contamination of the environment. It is desirable to include in the text of the Convention the following principles: the principle of the inadmissibility of the international transportation of nuclear material without ensuring its physical protection, the principle of combating illicit trafficking of nuclear explosives and radioactive materials, the principle of assisting the State party and the maximum operational assistance to each other in case of nuclear accident. The content of these principles follows from 23 articles of the Convention, including those of Articles 3 and 5, but the existence of such principles among the first articles of the Convention would allow all stakeholders to understand the essence of the Convention itself. It would be desirable to supplement the Convention by provisions on state responsibility for the non-disclosure of information to the world community on each case of seizure or theft of radioactive materials, and by the norm of the need to establish technical cooperation for neutralization of devices containing radioactive materials. It should be noted that there are many
countries that do not bring their legislation in line with international conventions relating to terrorism. In contrast, it should be said that the U.S, for example, as a member of the analyzed Convention by its federal law in section 2332 classified actions threatening the use of radioactive materials against the person or property as a specific crime. States parties could adapt their legislation to the content of the norm proposed for inclusion in the Convention.
Article 3 of the Tokyo Convention on Offenses and Certain Other Acts Committed on the Board of Aircraft of 14 December 1963, Article 10 of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971 refer only in general phrases to the prevention of terrorist acts in the civil aviation, including on the board of an aircraft. Meanwhile, the specific rules for the safety of civil aviation must be formulated in these conventions as well as in the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970. The Tokyo Convention, for example, for some reason does not identify the perpetrator: one can guess in the course of the study of the text of the convention that they could include one individual or a group of individuals. It does not clearly define the obligations of States to cooperate in order to prevent criminal acts of persons who cause a real threat to flight safety. Among the shortcomings of the Convention we may indicate the absence of provisions on the obligation of States to apply measures of criminal treatment of persons whose actions actually threatened the security of the flight. Following conventions have slightly corrected shortcomings of the present Convention, but all problems have not been fully solved. States parties could undertake such a commitment to prevent and combat terrorist acts. Many States parties of these Conventions have expansive domestic legislation to implement these conventions, containing quite tough criminal penalties for the commission of unlawful seizure of aircraft and other vessels. This can be seen in the case of the U.S. Law of 1974 against skyjacking. Article 239 of the Criminal Code of the Republic of Kazakhstan pursuant to the above conventions defines hijacking of not only aircraft, but also vessels and railway trains, as well the seizure of such vessels or trains in hijacking, defines them as a crime and provides for «imprisonment for a term from two to eight years.» If such a hijacking and seizure are committed by «a group of persons by prior conspiracy,» «repeatedly,» «with the use of violence, dangerous to life or health, or the threat of such violence,» «with the use of weapons or objects
used as weapons,» «resulted in the death of a person or other grave consequences,» then the penalty is to be determined in the form of imprisonment of up to fifteen years. Some of the above provisions are not included in the Conventions of 1963, 1970, 1971. Therefore it would be desirable to enrich the content of such provisions in the «air» international conventions through systematization and generalization of similar provisions in the laws not only of Kazakhstan and the USA, but all other States Parties to the Convention on this subject.
According to the authors of this article, it is not enough to provide common phrases written in international conventions, together with their common, almost meaningless obligation to take all possible measures to prevent terrorist activities. Therefore we offer in each of the international Convention with regard to its peculiarities to point out specific obligations of States parties, which they need to take in order to prevent the commission of terrorist acts, and undermine their plans for the preparation of such acts. For example, the text of the Convention against terrorist bombings requires States parties to implement the norms of the Convention by transforming them into internal national standards to prevent the illegal purchase, sale, storage of explosives and explosive devices, to prevent violations of the rules for their protection, and to prevent their theft. Scrupulous observance and application of these standards in each country would really help to prevent terrorist bombings on the far distance at the level of intention. The content of the Convention on the Physical Protection of Nuclear Material can be enhanced by provision in its text of the obligations of States parties to the Convention to block the illegal acquisition, storage, transportation, and use of radioactive, including nuclear materials, to ban illegal sales and theft, violations of the rules of storage, inventory and transportation of such materials. Those standards included in the text of the Convention would help to adapt and improve national legislation in these areas in the participating countries, where such rules are either absent or are of a general nature.
It would be preferable within the framework of international convention on terrorist bombings to combine efforts of the parties to establish training courses, advanced training courses for all employees who fight against terrorism, training courses on the art of negotiating with terrorists in specialized educational institutions of States and to formulate this in a separate article. The Convention would benefit if it would include articles on cooperation of States and international law enforcement agencies
not only in the overall area of prevention of acts of terrorism, but also in the area of detection and suppression of specific acts of terrorism.
The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973, also falls into the category of international anti-terrorism instruments. The Convention is directed against terrorist offenses with the following features: an attack on the official representative of a foreign state or an employee of an international organization, which enjoys international protection, on her/his family members, as well as on offices, homes, or vehicles of persons enjoying international protection, their abduction, or forced deprivation of liberty: these actions can be made many times, often with the use of weapons, on preliminary arrangement by group of persons, they can also cause serious bodily injury, which can cause a person's death, which may be done in order to provoke a war or complication of international relations, and the breakdown of international cooperation. Some features are reflected in the text of the Convention, others are not. These missing provisions to some extent can be used in the Preamble and Articles 1, 2, 3 of the analyzed Convention. Article 2 of the Convention lists the actions of a terrorist nature against persons under international protection, but it does not indicate whether these actions are committed with certain motives and purposes. We are convinced that simply the fact of murder, a terrorist act against such person, is enough to make the person who committed these acts be brought to justice. Therefore it would be advisable to supplement paragraph 1 of Article 2 of the Convention by the phrase «regardless of the motives and goals.» During the investigation the motives and goals could be found out, but then they should work to strengthen the criminal penalties. Paragraph 2 of Article 2 contains a provision for the designation of the relevant punishment «for such offenses, taking into account their grave nature.» Some other anti-terrorism conventions contain more stringent wordings for crimes of a terrorist nature. Against the background of these formulations paragraph 2 of Article 2 of the Convention is somewhat liberal. So we would like to propose a more rigorous formulation of the text of paragraph 2 of Article 2 of the Convention. Article 12 of the Convention states that the Convention "will not affect the application of Asylum Treaties." This phrase can be used in some cases as a means of leaving the terrorist irresponsible. Therefore, we
№ 2 (34) 2014 m. KaiaqcmaH PecnyônuKacu 3aH, muzapy UHcmumymuHUHi mapmwcw
recommend either to delete Article 12 in the text of Convention, or to add to the final part of the text of the article the following phrase: «but if it is proved that the person actually committed a terrorist act, he/she shall be extradited to the requesting State.» In order to enrich the content of the Convention it is desirable to study the legal provisions of States parties relevant to the theme of this Convention. For example, Article 163 of the Criminal code of the Republic of Kazakhstan establishes criminal penalties for «attack on a representative of a foreign state or an employee of an international organization, an internationally protected person, or members of his family living together with him, as well as at the office or residential premises or means of transport of persons entitled to international protection, as well as kidnapping or forcible detention of these persons, if these acts were committed with the aim of provoking war or complication of international relations.» If such acts are committed «repeatedly, or with the use of weapons, or after conspiracy by a group of persons, or associated with serious physical harm or negligently caused human death,» that the perpetrators of such acts are punished severely. This body of crime is stipulated in the Criminal Code of the Republic of Kazakhstan because the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, of 1973 prescribes to criminalize murder, kidnapping, attacks on internationally protected persons. In the same vein, the U.S. law in 1986 to ensure the strengthening of diplomatic security and anti-terrorism can be regarded.
The first paragraph of Article 23 of the International Convention for the Suppression of Acts of Nuclear Terrorism, says: «Any dispute between two or more States Parties concerning the interpretation or application of this Convention which can not be settled through negotiation within a reasonable time shall, at the request of them be subject, to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court. It is advisable to make the following changes in the text: it would be appropriate to put the word «interstate» before the word «arbitration» and the word «UN» before the words «International Court of Justice». These adjustments should be added into similar texts of other international conventions on combating terrorism, in particular, Article 20 of the International Convention for the Suppression of
Terrorist Bombings, Article XI of the Convention on the Marking of Plastic Explosives for the Purpose of Detection, Article 17 of the Amendments to the Convention on the Physical Protection of Nuclear Material of July 8, 2005, Article 24 ofthe Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Article 16 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. Further more paragraphs 2 and 3 provide that each State party shall have the right to a reservation with respect to paragraph 1 of Article 23 of the Convention on Nuclear Terrorism. Exactly the same text is given in Article 24 of the International Convention for the Suppression of the Financing of Terrorism, Article 16 of the International Convention against the Taking of Hostages, Article 16 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 10 March 1988. And just the same paragraphs 2 and 3 of all articles of the Conventions also suggest the opportunity for each State of a reservation only in relation to paragraph 1 of the same articles.
The authors of this article believe that paragraphs 2 and 3 on the reservation to a potential dispute between States parties to all these international conventions should be repealed as unnecessary. We propose to make the issue of reservations the subject of a separate article, and in accordance with Articles 19-23 of the Vienna Convention on the Law of Treaties of 23 May 1969 to extend the reservation to all articles of the 16 universal conventions and protocols on combating terrorism. On this approach, the reservation will be relevant to the articles of the Convention on the possible dispute between States parties and the use of reservations to such dispute. But we are convinced that only some states want to reserve with regard to disputes and for the most part the states are unlikely to do so. But it is not excluded that some states want reserve to the other provisions of the conventions. In any case the right of each State party to the Convention to adopt reservations will strengthen the principles of democracy and free will in the contractual relations between States and the UN, as well as between the States in the fight against terrorism.
It would be desirable to complete the text of Article 14 of the International Convention for the Suppression of Terrorist Bombings with the phrase «laid down in the relevant international treaties»: «Any person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment
of all rights and guarantees in conformity with the laws of the State in the territory of which that person is present and applicable provisions of international law, including international human rights law», «enshrined in the relevant international treaties». This addition is necessary to ensure that the competent authorities and stakeholders could really blame and ensure protection of human rights of those accused of committing a terrorist crime.
Article 15 of the International Convention for the Suppression of Terrorist Bombings proposes the States parties to cooperate in the prevention of crimes of terrorist bombings, in particular, by means of «taking all possible measures.» We think, from a legal point of view, this provision needs to be corrected, because such a rule involves the use of both legal and illegal means. Therefore the beginning of paragraph «a» of Article 15 of this Convention would look like (in italics, necessary additions are identified): «a) to take all possible measures which are not contrary to the law, including, where appropriate, legislative measures to prevent preparations in their respective territories for the commission of these crimes», and then - according to the text.
Article 7 of the International Convention somehow casually referred to information on the person who committed the terrorist bomb attack. Unfortunately, nothing else on the exchange of other information about the threats of terrorist bombings in the Convention is provided. Meanwhile, in the same article, one would fix the exchange of information between the parties to the Convention on the upcoming bombing and other acts of terrorism, facts of illegal trafficking of chemicals and materials, which may be components of improvised explosive devices, the operation of terrorist organizations aimed at committing bombings or other actions, and their contacts, to identify methods of terrorist activities of such groups and gain methods for their disposal, and identify the alleged terrorist financing channels, including bombs, actions and lessons learned to block it. Similar provisions are absent or present only in general terms in Articles 13 and 15 of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 10 March 1988, in the text of the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental shelf, from March 10, 1988, Article 5 of the Convention on the Physical Protection of Nuclear Material. The above mentioned provisions should find an appropriate place in these and other international conventions against terrorism.
Article 4 of the International Convention against
the Taking of Hostages states that measures should be taken to prohibit illicit activities in acts of hostage-taking in the territories of all states, but measures should be provided for by law, and then the second half of the paragraph «a» of Article 4 would look like this: «including the adoption of the measures provided for by law» to prohibit in their territories (States parties) illegal activities of persons, groups and organizations that encourage, instigate, organize or engage in acts of hostage-taking «(shown in italics contributed as an additional phrase). The above situation can and must be developed in the same article: it would be appropriate to separately identify the status of the organizer of a terrorist act, instigator, executor (co-executor), an accomplice of such action, to give a separate definition of each category of terrorist. Moreover, it should clearly define the extent and severity of liability depending on the category of participant in a terrorist group. With this approach, it would be easier for states to determine the guilt of each terrorist and define the appropriate criminal penalties. These proposals could improve article 4 of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, of course, taking into account the specifics of the Convention.
In the relevant rules of international conventions on international terrorism it would be desirable to concentrate all the circumstances aggravating criminal liability and, therefore, increasing punishment. For example, in a separate article of the Convention on the Marking of Plastic Explosives for the Purpose of Detection, and the Convention on the Physical Protection of Nuclear Material the following provisions could be included as aggravating the terrorist groups according to their specificity: commission under these two Conventions of terrorist crimes by a group of persons by prior agreement between them; committing threats, crimes against the person or against people close to him in connection with the performance of his or her professional duty, to protect and defend explosives and nuclear material, causing grave consequences (the threat or use of weapons of mass destruction) by mined bombs and nuclear substances, the commission of these crimes by ammunition, explosives and explosive devices, inflammable liquids, radioactive materials, the use of physical or mental violence, and any other dangerous means, committing these crimes, by an employee of a specialized company in an official capacity; preparation or commission of an act of terrorism in the territory of a foreign state in
№ 2 (34) 2014 m. K,a3aKpmaH Pecnydnumcu 3aH, muzapy UHcmumymuHUH, mapmucu
order to provoke a war or complicate international relations. Thus, it is possible and necessary to show that an act of terrorism linked to the themes of these conventions is a particularly serious crime, indicating that the presence in the terrorist group of the persons, who according to their duty and profession must protect and defend explosives and nuclear materials, is an aggravating circumstance to culpability, we thus largely cut off these persons from possible participation in this kind of criminal group.
A separate article of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation could incorporate the following aggravating circumstances of the terrorism: the repeated commission of terrorist and other actions on the basis of what is declared by a court sentence as a recidivist, implementing by them of an active role in the commission of a terrorist act; commit a terrorist act on board by a person who thereby violated his oath of office and brought a professional oath of allegiance to serving the people and the state, the commission of a terrorist act at the port or vessel with illegal use of uniforms and instruments of responsible persons and sailors. Article 3 of the Convention does not contain such body of crime as a terrorist attack on ports, and such provision would be useful. The Convention does not provide the States parties with the right to interfere with regard to foreign ships on the high seas: this approach significantly weakens, and reduces the efficiency of the Convention. The inclusion of such provision in the Convention would increase significantly the level of security in the maritime sector.
The Convention on Offenses and Certain Other Acts Committed on Board Aircraft, the Convention for the Suppression of Unlawful Seizure of Aircraft, and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation could be determined by the circumstances in their texts, which would be regarded as aggravating the culpability of perpetrators of terrorist crime: an act of terrorism in the form of, for example, terrorists hijacking under the influence of alcohol, drugs , the commission of unlawful acts against the safety of civil aviation group; commit terrorist acts in the field of civil aviation and the use of firearms, edged weapons and the threat of explosive devices.
Compared to other conventions, the International Convention against the Taking of Hostages most needs to supplement the relevant provisions of its articles with circumstances that can and should be referred to as aggravating the perpetrators' culpability of the most cynical form of international
terrorism: a crime against a pregnant woman, or a young child, as well as a defenseless or helpless person, which terrorists hold against their will; a crime in connection with the display of national, racial and religious hatred, revenge, hatred, hostage-taking, followed by cruelty, sadism, or humiliation against them.
Of course, we have discussed and presented here obligations that are related to any Convention or to each of the Conventions almost entirely. Rules of international conventions on combating terrorism circumstances implemented by provisions of domestic law of the States parties with their harsh sanctions may in some way prevent the terrorist acts of a different orientation, examples of convicted terrorists with the aggravated circumstances of their guilt will serve as a visible lesson for potential terrorists in the future.
Unfortunately, there are no rules on institutional mechanisms for ensuring implementation of these conventions in almost all 16 universal multilateral conventions. Conventions are often executed mainly through voluntary actions of member states of the international legal instruments without such a mechanism of implementation. We must put firmly the issue of implementation of these conventions through appropriate mechanisms. It is important not only to correctly formulate the norms of universal and other conventions and agreements on combating international terrorism, but not less important to clearly apply them on a basis of which the essence is as follows. The first principle: no surrender to international terrorists, determination to win a specific terrorist act and solve all the problems for neutralizing of the action only in the framework of the law. The second principle is the inadmissibility of terrorists' proposals even in the face of serious threats and blackmail. The third principle involves the application of the maximum efforts to ensure the criminal investigation and prosecution of international terrorists, to bring a case to court and reach a verdict. If it is proven that a State helped to commit an act of international terrorism, diplomatic efforts and law enforcement agencies in other states should be directed to the adoption of international legal sanctions on such a state sponsor. Based on universal international conventions states should stop any attempts of terrorists to block or disrupt diplomatic efforts to resolve political crises and other international issues. Such action can be concentrated in a separate, fourth principle. These principles can be put into norms of conventions, which could become the institutional arrangements for implementation of these conventions.
We believe that every global international convention can formulate a separate section or provide a few sections that would be devoted to the status and activities of the analytical and training center for the successful struggle with various species of criminal acts of terrorism, which would amount to a serious organizational legal mechanism for implementation of each international convention. Such a center could encourage the regional intergovernmental organization of counter-terrorism and states to collect skills and knowledge for the prevention and suppression of terrorist bombings, nuclear terrorism, terrorism financing and other areas of the fight against international terrorism. The activities of such centers could be funded by States parties to those conventions. These centers could be a kind of a center of improving skills for officers of law enforcement and other agencies combating international terrorism.
It is proposed to punish any legal entity or company, organization, or firm, which provided material support, or financed terrorist activities, by «liquidation with confiscation of property or without it.» The fact that U.S. law is not only fighting the financing of terrorism by criminal legal means, but goes further by imposing penal prohibitions on providing material support to the terrorists and foreign terrorist organizations (Sections 2339A, 2339B, 2339C title 18 USC) is of a considerable interest. Section 2339A «Providing material support to terrorists» explains how to understand the «material support» and «resources»: «Material support or resources» mean the provision to terrorists of «any property (movable and immovable), cash and financial securities, financial services, loans, housing, training, expert advice, communications, equipment, weapons, explosives, transportation.» In this regard, it would be wise to implement the ideas of these sections of the Laws of the United States in the individual articles of the Convention for the Suppression of the Financing of Terrorism. The UN and the States parties to the Convention could include in the text of the Convention the issues of liability of legal entities, which may be implicated in the financing and provision of material support of various terrorist acts. This would be a significant addition to Article 5 of the Convention. Upon seeing the provision in the text of the Convention on the liability of legal entities providing material support and financing terrorism, other states with greater confidence and an active desire would wish to include in their legislation provisions that may lead to criminal penalties on legal entities that have provided material support to terrorists and sponsored
terrorism. Lawmakers in other countries could also take up the ideas of the analyzed U.S. law.
To the text of the International Convention for the Suppression of the Financing of Terrorism is necessary to introduce new regulations on the need for states, international organizations, financial institutions, to monitor and block funding for both domestic and international terrorism. In addition, this same convention could encourage and convince the States parties of the need of widespread introduction of cashless funds into financial circulation. The employees of the bank can suspect that the ongoing non-cash money is not on purpose, that they are going to, perhaps, terrorist purposes, but to determine it once and for all just is impossible. Therefore, large and very large sums of money of a particular company, should be verified and checked through other financial institutions on the purpose to which the money received goes, and the disposal of the company's assets, equipment, or goods. A domestic financial intelligence unit would efficiently cope with this task, but unfortunately, such units do not exist in many countries. Therefore, this Convention should ensure that States parties to the Convention shall commit themselves to establish a financial intelligence unit.
The financial turnover of a number of countries have daily circulation of large sums of cash, which is difficult to account. This circumstance can be used by potential terrorists. In order to put a barrier in this direction is better to fix in this international convention the norm-recommendation to all countries of the planet to keep walking non-cash money, which is much easier to control by all financial institutions.
Pursuant to universal international antiterrorist conventions in each region it would be useful to create groups among the States parties to prevent money laundering and terrorist financing. States parties could report periodically to bodies of such groups in these areas of activity, and could do everything not to finance terrorism.
Another means of effective implementation of the rules of international conventions against terrorism would be the introduction of additional rules in the Conventions, which require States parties to make a commitment to create with the contents Conventions the domestic structures in the form of anti-terrorist units of the interior and the national financial intelligence, financial police, tax authorities and the police, the surveillance arm of all commercial banks of the country, which could prevent and suppress all acts of terrorism, counter-terrorism as a phenomenon in every state and around
№ 2 (34) 2014 m. KaianpmaH PecnyônuKacu 3aH, muzapy UHcmumymuHUHi mapmwcw
the world.
Solid institutional means to curb terrorism on a global scale can be considered by the Counter-Terrorism Committee (CTC) of the Security Council, which is strengthening the capacity of member states to combat terrorism. This committee was set up immediately after the terrorist attacks that occurred on 11 September 2001 in the United States. The Executive Directorate assists the Committee in its activities. This structure works on the basis of the following principles: not to provide asylum, any support for terrorism, sharing information with the states in regard to criminal groups who commit or plan to commit a particular acts of a terrorist character, cooperation with the States in carrying out the investigation, apprehension, arrest, and extradition of persons who are involved in the preparation and commission of such acts. This committee developed close working relationships with the UN agencies combating international crime, for example, with the United Nations Office on Drugs and Crime (UNODC), with specialized UN agencies: the International Civil Aviation Organization (ICAO) on security of civil aviation, the International Criminal Police Organization (Interpol), the International Maritime Organization (IMO) on safety of maritime navigation, with continental and regional organizations such as the Organization of American States (OAS) and the Inter-American Committee Against Terrorism, Organization for Security and Cooperation in Europe (OSCE), the Commonwealth of Independent States (CIS). But these structures are still few in number. It is imperative that similar organizations should exist in every continent, in all regions of the world.
Article V of the Convention on the Marking of Plastic Explosives for the Purpose of Detection of 1 March 1991 established the International Technical
Commission for explosives, consisting of not less than fifteen nor more than nineteen members from among persons nominated by States - parties to the said Convention. At the same time, not one article out of the 23 articles and 2 annexes of the Convention on the Physical Protection of Nuclear Material contains provisions from which it would follow that the protection of nuclear material will be provided by the Council or the Commission for Protection of Nuclear Material, established by the States parties. The Convention does not contain provisions that the International Atomic Energy Agency can immediately assist in the protection of nuclear material at the request of a State party. We are convinced of the need for an appropriate institutional structure, able to provide real protection of nuclear material at the first signal of a State party to the Convention.
Taking into consideration the proper implementation of the Convention it is possible to examine Article 16 of the Convention on the Physical Protection of Nuclear Material, which contains the obligation of States parties to conduct once every five years a practical conference of the participants on the subject of improving the treaty practices of States under this Convention: at this conference states' representatives analyze experience on the implementation of the Convention during the last five years, note all the positive factors, share legislative experience in the implementation of various provisions of the Convention in their national territory, identify shortcomings, offer solutions of problems and on that basis take decisions on addressing these shortcomings and put forward proposals for a more effective and intensive implementation of the Convention in the coming five years.
Literature used:
1. Combating terrorism-related crimes. - In the journal: The Legitimacy. - Moscow (Russian Federation).
- 2002. - № 4. - Page. 2-8.
2. Vozzhenikov A.V. International terrorism: the struggle for geopolitical supremacy. - Moscow (Russia), the Russian Academy of Public Service under the President of Russia, 2005.
3. Gazizov A. Farewell to Arms. - In the newspaper: News-Kazakhstan. - Moscow (Russia) - Almaty (Kazakhstan). - 2012. - № 182 (2933). - September 27. - Page 5.
4. Emelyanov V. Responsibility for the problem of international terrorism. - The Journal: State and law.
- Moscow (Russian Federation). - 2000. - № 1. - Pages 70-77.
5. Feinstein A. Against threats (terrorism). - In the newspaper: Kazakhstanskaya Pravda (Kazakhstan Truth). Kazakhstan's national daily newspaper. - Astana (Kazakhstan). - 2012. - №312-313 (27131-27132).
- September 15. - Page 1.
6. Kazakhstani and international law in the fight against terrorism. - In the journal: Bulletin ofthe Institute
of Legislation of the Republic of Kazakhstan. - Scientific and legal magazine. - Astana (Kazakhstan). -2012. - № 2 (26). - Pages 146-151.
7. On the international legal measures to combat terrorism. - In the journal: Diplomatic Bulletin. -Moscow (Russian Federation). - 2003. - № 1. - Pages 166-168.
8. Planet - without the nuclear threat. - In the newspaper: Kazakhstanskaya Pravda (Kazakhstan Truth). Kazakhstan's national daily newspaper. - Astana (Kazakhstan). - 2012. - August 18. - Page 10.
9. Human rights, terrorism and the fight against terrorism. - Geneva (Switzerland): Office of the UN High Commissioner for Human Rights. 2008. - 104 pages.
10. Terrorism without Borders... - In: Journal of Terrorism Research. - Volume 5, Issue 1. - 2014. -Pp.26-33
Бул мацалада халыцаралъщ конвенциялар, цылмыстыц зацнаманыц цазацстандыц жэне американдъщ нормаларын мен Б¥¥ цурылымдарыныщ халыцаралыц лацкесттпен KYpecmesi куштерт 6ipiKmipy, сонымен цатар лацкестт акциялар жасауды болдырмау жэне жаслаган лацкестж актiлердi бейтараптандыру цимылдарын ЖYргiзу туралы айтылады.
Ty^u свздер: конвенция, терроризм, Б¥¥цурылымдары, лацкестж акциялар.
В данной статье предпринята попытка соединения ряда международных конвенций, норм казахстанского и американского уголовного законодательства и усилий специализированных структур ООН по борьбе с международным терроризмом с тем, чтобы предупредить совершение террористических акций и провести необходимые действия по нейтрализации совершаемых актов терроризма.
Ключевые слова: конвенции, терроризм, структуры ООН, террористические акции.
In this article is shown an attempt to combine some international conventions, Kazakh and American criminal legislation, UN structures in fight with international terrorism in order to prevent the terrorist actions and make necessary operations on neutralization of committing acts of terrorism.
Keywords: conventions, terrorism, UN structures, terrorist actions.
Марат Алдо^ар^лы Сэрсембаев,
КР Зац шыгару институты халыцаралыц зацнама жэне салыстырмалы ц^цыцтану бeлiмшщ бас гылыми цызметкер^ з.г.д., профессор
^анат Марат^лы Сэрсембаев,
3.F.K.
Данияр Марат^лы Сэрсембаев,
халыцаралыц ц^цыц магистрi («Болашац», Астана) Редакция - Джералд Ньюман, Гарвард университетшщ (АКШ) халыцаралыц ц^цыц профессоры
Кейбiр конвенциялар, казакстандык жэне американдык зацнама, Б¥¥-ныц халыкаралык терроризммен ^рес кдаылымдары
Сарсембаев Марат Алдангорович,
главный научный сотрудник отдела международного законодательства и сравнительного правоведения Института законодательства РК, д.ю.н., профессор
Сарсембаев Канат Маратович,
к.ю.н.
Сарсембаев Данияр Маратович,
магистр международного права (Консалтинговая группа «Болашац», Астана). Редакция - Джералд Ньюман, профессор международного права Гарвардского университета (США)
Некоторые конвенции, казахстанское и американское законодательство, структуры ООН в борьбе с международным терроризмом
№ 2 (34) 2014 ж. Цазацстан Республикасы Зац шыгару институтыныц жаршысы
Sarsembayev Marat Aldangorovich,
chief research fellow of Department of the international legislation and comparative law of the Institute of legislation of the Republic of Kazakhstan, d.j.s., professor Sarsembayev Kanat Maratovich, Candidate of Law
Sarsembayev Daniyar Maratovich,
Master of International Law (CG "Bolashak", Astana) Editor - J. Newman, Professor of Law School of Harvard University (Cambridge, Mass., USA)
Some Conventions, Kazakh and American Legislation, UN Structures in Fight with International Terrorism
Институт законодательства Республики Казахстан представляет
Казахстан республикасындагы кукыктык
МОНИТОРИНГ: ТЕОРИЯСЫ, ПРОБЛЕМАЛАРЫ, ПЕРСПЕКТИВАЛАРЫ: Хальщаральщ гылыми-практика-льщ конференцияньщ материалдары, 2012 ж. 29 параша. = ПРАВОВОЙ МОНИТОРИНГ В РЕСПУБЛИКЕ КАЗАХСТАН: ТЕОРИЯ, ПРОБЛЕМЫ, ПЕРСПЕКТИВЫ: Материалы международной научно-практической конференции 29 ноября 2012 года. - Астана: Казахстан Республикасыныц Зац шыгару институты, 2013. - 325 б. - ^аза^ша, орысша.
Казахстан Республикасыныц Зац шыгару институты Казахстан Республикасыныц Эдшет министрлшмен бiрлесiп, 2012 жылдыц ж^мыс жоспарына сэйкес 2012 жылдыц 29 ^арашасында «Казахстан Республикасындагы ^^ы^тыщ мониторинг: теориясы, проблемалары, перспективалары» та^ырыбында халы^аралыщ гылыми-практикалыщ конференция вткiздi.
Конференцияда мемлекетпк органдардыц жэне Yкiметтiк емес сектордыц, сондай-а^ Казахстан Республикасыныц, Ресей Федерациясыныц, Беларусь Республикасыныц гылыми ^йымдарыныц вкiлдерi ^атысты.
Конференцияныц басты ма^саты ^лттык; зацнаманы жетiлдiрудiц жэне нормативтiк актiлердiц кдоыктык; мониторингi саласындагы кдоык; шыгармашылыщ процестiц эртYрлi багыттарын жан-жа^ты тал^ылау, сондай-а^ гылыми нэтижелермен, зерттеушшк жэне халыщаралыщ тэжiрибемен алмасу. Конференцияныц ^орытындылары бойынша Казахстан Республикасындагы нормативтш актiлерге мониторинг ^йымдастыру мен жYргiзудiц теориялыщ
жэне практикалыщ мэселелерiн одан эрi жетiлдiру жвшнде ^сынымдар эзiрлендi.
