“Terrorism and Counter Terrorism in International Law with a special reference to the Indian position”.

By: Anuja Pethia.

I.   Introduction

Terrorism can be considered to be a kind of warfare or a crime depending on how States may choose to categorise it. Lack of adherence to any kind of rules motivated by ideological, religious or political perspective sets aside terrorism from other kinds of violence. Innocent people have lost lives to this phenomenon since decades. It is not just one State that is affected by this problem, but numerous States over a vast span of years. Terrorist organisations are amorphous, which gives them a considerable advantage by enhancing their ability to strike first. The invisibility of these organisations and suddenness of their attacks adds to the fear and threat that they intend to cause in societies.

Counter terrorism strategies vary because of cultural, economic and military differences in every country. Terrorism may often be associated with the ethnicity, region or religion where a terrorist comes from. Thus, while States need to respond effectively and swiftly, they must be sensitive to operate within rule of law norms and ensure full respect for fairness and human rights in countering terrorism.

II. Terrorism in International Law

1. The Meaning of Terrorism

During the period of de-colonisation the famous sentence, “one man’s terrorist is another man’s freedom fighter” was particularly relevant. In the backdrop of decolonisation struggles, the approach of international law towards terrorism was characterised for a long time by avoiding a general definition and addressing specific issues instead.[1] The only early exception to this approach was that of the 1937 League of Nations Convention for Terrorism, which never entered into force. This Convention defined “acts of terrorism” as all “criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or general public.”[2]

United Nations Security Council Resolutions 1368 and 1373, adopted in the year 2001, contain references to “terrorism” without providing any definition of the term. The absence of a legal definition of terrorism did not prevent the attacks on September 11, 2001 to be identified as terrorism, as they clearly were aimed at causing terror among a civilian population for political and ideological reasons. [3] Broadly, two paths to defining terrorism have been identified in both international law and the United States. One path gives an analytical, generic definition, complete within itself, into which all “terrorist” acts would then fit; this is a “top down” or deductive approach.[4]

In 1999, the General Assembly adopted a Treaty that provided a “residual definition”[5] of Terrorism. This was the International Convention on the Suppression of the Financing of Terrorism adopted by the UN General Assembly.[6] After referring to acts constituting offences pursuant to the earlier treaties, the Convention defines terrorism as:

“[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or abstain from doing any act”[7].

 

 

2.   Impact of the September 2001 Attacks

The most prominent and ‘iconic’ terrorist attack was the September 11, 2001 attack on the World Trade Centre in United States. Georges Abi-Saab, author of ‘The Proper Role of International Law in Combating Terrorism’, notes that the 2001 attacks are qualified as a “a defining moment”, “a turning point” or a “system change”, but argues that they are not so on the premise that the uncovered conspiracy to blow up the New York Tunnels and the UN building could have led to a catastrophe of a magnitude similar to that of September 11.[8] Before and even after the 2001 attacks, there have been numerous terrorism conspiracies and acts of terrorism. However, the 2001 attacks gave a “shock of recognition” to the world community and therefore, can be argued as being “iconic” in a certain way.

In November 2001, in the immediate aftermath of these attacks, there were new efforts to come to a universal definition of terrorism. However, they failed again in light of resistance from the Organisation of Islamic Conference because the definition did not exclude national liberation movements fighting foreign occupation such as the Israeli occupation of Palestinian land.[9] Another issue was that majority of the States preferred the application of the definition to be limited to individuals and groups.[10]

It will be untrue to say that international law does not have a definition of terrorism. There are a number of treaties that deal with specific acts of terrorism. Antonio Cassese in the article ‘Terrorism as an International Crime’ defines three main elements of a definition of the crime of terrorism in international law. They are: (i) the acts must constitute a criminal offence under most national legal systems such as murder, arson or bombings (ii) they must be aimed at spreading terror by means of violent action or the threat thereof against a State, the public or particular groups of persons; and finally (iii) these acts should not be motivated by private ends but must be politically, religiously or ideologically motivated.[11]

3.   Countering Terrorism

There are two ways of viewing terrorism, the first way is to look at it within a criminal justice model as a crime; the second is to view it within a war model as a special variant of “guerrilla warfare” which disregards the laws of war. [12] Bin Laden stated that: “We do not have to differentiate between military or civilian. As far as we are concerned, [Americans] are all targets.”[13] This also points to a unique feature of terrorism, that of “depersonalisation of the victim”.[14] A terrorist does not attack specific persons, for him the victim is an indispensable tool for obtaining a political or ideological purpose.

Terrorism can be categorised either as a criminal enterprise calling for a “law enforcement” approach or it can be categorised as an “act of war”, bringing into play the “law of war” with jus ad bellum and jus in bello.[15] Both these approaches have been seen as State responses to terrorism. After the 2001 attacks, the USA made a commitment to ‘defeat those responsible for the attack’, it deployed its forces in Afghanistan to counter the Taliban for harbouring terrorists,[16] while India as a response to the massive state sponsored terrorist attacks in Mumbai from 26th to 29th November, 2008 responded by prosecuting the captured terrorist within its domestic criminal justice system and subsequently executing him pursuant to a death penalty given by the Courts. This section analyses the legality and practicality of a “war on terror” as a tool for countering terrorism as well as alternate approaches to combat terrorism.

4.  The United Nations Action to Counter Terrorism

The UN Global Counter-Terrorism Strategy (“UNGCTS”) established a new cohesive approach to counter terrorism. This strategy streamlines different branches of the UN.[17] The UNGCTS was adopted by Member States on 8 September 2006. The strategy is in the form of a resolution. It includes a Plan of Action to enhance national, regional and international efforts to counter terrorism.[18] The UNGCTS paves the way for a more pragmatic way of countering terrorism – that of mutual legal assistance and collective security. In the face of today’s massive threats of terrorism, policy makers and government heads may scoff at such strategies as being superficial, however, the truth is that terrorist organizations are enemies without clear faces. The threats that they pose to the world order are unique. They impact the psyche of the society because of the high degree of fear and insecurity that they carry with them; these cannot be countered without collective actions of prevention.

The UNGCTS embraces inter alia a plan of action, measures to address the conditions conducive to the spread of terrorism, measures to prevent and combat terrorism, measures to ensure respect for human rights and the rule of law as the fundamental basis of the fight against terrorism. It recognizes that prolonged unresolved conflicts, dehumanization of victims of terrorism, lack of rule of law, violations of human rights; ethnic, national and religious discrimination, political exclusion, socio-economic marginalization, and lack of good governance are conditions that are conducive to the spread of terrorism.[19] It also recognizes that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but are complementary and mutually reinforcing.[20]

The UNGCTS also supports the United Nations Counter-Terrorism Implementation Task Force (“CTITF”), which was established by the Secretary-General in 2005 to ensure coherence in the counter terrorism efforts of the UN.[21] Though the strategy brings in a number of concrete measures to curb the spread of terrorism, it is extremely significant because it recognizes that prevention of terrorism begins from reducing factors or environment that are conducive to terrorism.

Following the September 2001 attacks, terrorist attacks increased significantly. From 2002, South Asia and the Middle East have had the highest number of terrorist attacks per year.[22] Also significant is that Al Qaeda until 2006, ranks third in terms of total fatalities.[23] These statistics clearly indicate that the ‘war on terror’ or the use of force have failed to provide any deterrent effect on terrorism. Use of force also comes with high economic and human costs, and though it may sound robotic to import economic terms to human lives, objectively speaking the marginal utility or the cost of the war on terror is too high compared to the results achieved. The UNGCTS is therefore, a positive and a much-required step towards providing alternate ways to counter terrorism.

III.   Analysing Terrorism and Counter Terrorism in  India

India is the fourth most affected country in terms of total terrorist attacks and fatalities.[24] Since gaining independence, India has seen the assassination of its most prominent civil rights leaders, two former prime ministers, a retired army chief and numerous attacks on its civilian population across the length and breadth of the country. Moreover, for over a decade India has been fighting insurgents in Kashmir, including Islamic radicals from Pakistan and Afghanistan.[25] The fear of nuclear weapons of neighbouring states falling into wrong hands, danger from insurgencies, spurred by tribal and ethnic aspirations and left wing ideologies apart from invisible terrorist organisations is very daunting.[26] Arguably, the first step towards security for a democratic country, relying on rule of law, is strong and well drafted legislations.

India has enacted three major legislations for countering terrorism, two of which stand repealed today. The Terrorism and Disruptive Activities Prevention Act (“TADA”) was enacted in 1987. In 2002, in the aftermath of a terrorist attack on its national parliament in New Delhi, it enacted the Prevention of Terrorism Act (“POTA”), 2002. Both the Acts were repealed in the face of heavy criticism for widespread abuse of powers and wrongful arrests by the authorities. Today, the Unlawful Activities Prevention Act (“UAPA”), enacted in 1967 and last amended in 2013 can be seen as the main counter terrorism law in India. This section also analyses two cases: the trial of Ajmal Kasab – the captured terrorist behind the tragic terror attacks in Mumbai in 2008; and the much debated case of the Italian marines who were arrested in 2012 for allegedly killing Indian fisherman. First, let us look at the definitional aspect of terrorism in India.

IV.   Conclusion

The General Assembly in Resolution 49/60 of 1994 agreed that, ‘Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them’.[27]

States have to operate within rule of law. Respect for human rights is difficult in an overly insecure and emotionally charged environment that follows terrorist attacks, yet it is fundamental to ensure that people have faith in the government and that democratic processes are maintained. Critical discussions on the nature of state response, analysis of public policies and an examination of social and economic processes is necessary. The state responses of two major countries affected by terrorism – the USA and India, have been discussed in the preceding chapters. Where USA chose to use force to eliminate Al Qaeda, India decided to execute the captured terrorist within the domestic criminal system.

Use of force and aggression by the US was not entirely effective in eliminating terrorist camps, neither has drafting special counter terrorism laws helped India in dealing with this problem. While the former leads to excessive casualties, economic drain and more fuel for terrorist organisations to mislead the youth, the latter leads to abuse of powers by the authorities, lengthy trials and human rights violations. Paul Wallace writes that, “excessive reliance on force and draconian measures can alter the state itself towards increasingly authoritarian modes”.[28] The solution for curbing terrorism lies in concentrating collective efforts on preventing environments that foster terrorism. This would include creating an environment where young people are not forced into joining terrorist organisations out of unemployment and neglect. Excessive repressive measures foster and validate the ideologies that terrorist organisations promote. Counter terrorism measures must not be retaliatory but should have two minimum common characteristics: that of being preventive in nature and of being aimed at obtaining justice.

 

 

[1] Christian Walter, ‘Defining Terrorism in National and International Law’ (2003) <https://www.unodc.org/tldb/bibliography/Biblio_Int_humanitarian_law_Walter_2003.pdf> accessed 10 June 2014.

[2] League of Nations Convention for the Prevention and Punishment of Terrorism, (signed 16 November 1937); the Convention which never entered into force, was drafted in response to the assassination of King Alexander I of Yugoslavia in Marseilles in 1934.

[3] Pierre-Mary Dupuy, ‘State Sponsors of Terrorism: Issues of International Responsibility’ in Andrea Bianchi (ed), Enforcing International Law Norms against Terrorism (Hart Publishing, Oxford 2004), 5.

[4] Geoffrey Levitt ‘Is “Terrorism” worth defining?’ (1986) 13 Ohio N.U. L. Rev. 97.

[5] Yoram Dinstein, ‘The “War on Terrorism”’ in Pablo Antonio Fernandez-Sanchez (ed), International Legal Dimension of Terrorism (Martinus Nijhoff, Leiden 2009), 245.

[6] GA Res 54/109 (9 December 1999) UN Doc A/RES/54/109.

[7] International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999) UNGA Res 54/109) art 2(I)(b).

[8] Gerorges Abi-Saab, ‘The Proper Role of International Law in Combating Terrorism’ in Andrea Bianchi (ed), Enforcing International Law Norms against Terrorism (Hart Publishing, Oregon 2004), xiv.

[9] Edith M. Lederer, ‘Annan Hopes U.N. will Approve Comprehensive Treaty Against Terrorism’(25 January 2002) <http://63.147.65.31/socal/terrorist.0102/25/terror17.asp> accessed 4 June 2014.

[10] Alex Schmid, ‘Terrorism-The definitional Problem’ (2004) 36 Case W. Res. J. Int’l L. 375, 388.

 

[11] Antonio Cassese, ‘Terrorism as an International Crime’ in Andrea Bianchi (ed), Enforcing International Law Norms against Terrorism (Hart Publishing, Oregon 2004), 219.

[12] William S. Lind et al., ‘The Changing Face of War: Into the Fourth Generation’, (Marine Corps Gazette, October 1989) <http://www.d-n-i.net/fcs/4th_gen_war_gazette.htm> accessed 4 June 2014, 22-26.

[13] ibid.

[14] Antonio Cassese, ‘Terrorism as an International Crime’ in Andrea Bianchi (ed), Enforcing International Law Norms against Terrorism (Hart Publishing, Oregon 2004), 219.

[15] Gerorges Abi-Saab, ‘The Proper Role of International Law in Combating Terrorism’ in Andrea Bianchi (ed), Enforcing International Law Norms against Terrorism (Hart Publishing, Oregon 2004), xvi.

[16] Council on Foreign Relations, ‘U.S War in Afghanistan’ <http://www.cfr.org/afghanistan/us-war-afghanistan/p20018> accessed on 5 June 2014; Paul Ryan, ‘War on terrorism’ <http://paulryan.house.gov/issues/issue/?IssueID=12229#7> accessed on 5 June 2014.

[17] T.M.A. Luey, ‘Defining “Terrorism” in South and South East Asia’ [2008] 38 Hong Kong LJ 129.

[18] UNGA Res 60/288 (20 September 2006) UN Doc A/RES/60/288,  Department of Public Information, United Nations ‘United Nations General Assembly Adopts Global Counter-Terrorism Strategy’<http://www.un.org/en/terrorism/strategy-counter-terrorism.shtml#plan> accessed on 20 June 2014.

[19] UNGA Res 60/288 (20 September 2006) UN Doc A/RES/60/288.

[20] UNGA Res 60/288 (20 September 2006) UN Doc A/RES/60/288.

[21] Peace and Security Section of the Department of Public Information, ‘United Nations Action to Counter Terrorism’<http://www.coe.int/t/dlapil/codexter/Source/Working_Documents/CTITF%20Information%20Package.pdf> accessed on 20 June 2014.

[22] Gary LaFree and Laura Dugan, ‘Research on Terrorism and Countering Terrorism (2009) 38 Crime & Just. 413,446.

[23] Gary LaFree and Laura Dugan, ‘Research on Terrorism and Countering Terrorism (2009) 38 Crime & Just. 413,446.

[24] Gary LaFree and Laura Dugan, ‘Research on Terrorism and Countering Terrorism (2009) 38 Crime & Just. 413,459.

[25] Chris Gagne, ‘POTA: Lessons Learned from India’s Anti-Terror Act’ (2005) 25 Boston College Third World Law Journal 261.

 

[26] Maj.Gen. Nilendra Kumar, ‘Gaps and Inadequacies of New Terror Laws in India’ (2009) 48 Mil. L. & L. War Rev. 235.

[27] UNGA Res 49/60 (9 December 1994) A/RES/49/60.

[28] Paul Wallace, ‘Poitical Violence and Terrorism in India: The Crisis of Identity’ in Martha Crenshaw (ed) Terrorism in Context (The Pennsylvania University Press, 1995) 352.