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The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

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INTERNATIONAL LAW ON TERRORISM NEED TO REFORM


Sandhya P. Kalamdhad*
Abstract: Today, right to life, the most precious fundamental right has been exposed to serious threats and risks from terrorists throughout the globe. The act of terrorism became menace to the society. State might be powerful or weak; no one is exempted by these merchants of death. The incidences of terrorism in all its varied form is on increase. The terrorist are much more technically advanced and they possess tremendous will of destruction. The terrorist is not only aiming at the individual and his property as targets but at the very power structure and the entire governing system, posing great threat to the national and international security. Terrorist are creating terror in the minds of general public as well as nation. It has assumed global dimensions. To d eal with this exaggerated form of terrorism is not confined to the national level, indeed this is beyond the reach of any individual state. International law is one of the best instruments to combat terrorism. However, international terrorism with its new face and body posed a great challenge to International law. International legal system has adopted various Conventions to combat terrorism and aftermath 11 September 2001, they have expedited those efforts on war footing. However, there are certain areas where international community is failed to reach at final destination (mostly because of obvious reasons and limitation of international law) . The attempt of this article is to indentify some important issues of these kinds and to find out the solutions if at all present, so that International Law may become the most effective tool to combat terrorism. Key Words: Terroris m, International Law, Reform.

Introduction: Osama Bin Laden killed by American troops-as soon as the news flashes on television screen, everybody became happy, whether he was American or not! This reaction on the part of the whole world community towards terrorism shows, that terrorism is not restricted to one particular country. It became a transnational phenomenon. Almost every country is the victim of terrorism. The use of terror as a means to achieve political ends is not a new phenomenon, but it has acquired new dimensions today. The modern terrorists are much more technically advanced and they possess tremendous will of destruction, the ability to create terrifying, uncontrollable and irreversible situations. Terrorism has not restricted to achieve some political gains or for religious or racial reasons. It has assumed global dimensions today. Instances of international terrorism like attack on World Trade Center on 9/11, attack on Indian Parliament, SAMJHAOTA Express blasts, Continuing attack on Jammu and Kashmir, Mumbai attack on 26/11, shows that the terrorism on international level has come up with a new face and body. It threatens the division of power, the rule of law and the commitment to uphold human rights, which are some of the most fundamental principles of every legal system in the globe. These events have posed great challenge before international Law. New thinking is thus required to make more appropriate international framework to combat transnational terrorism. International law geared up to tackle the menace of terrorist activities and many important decisions have been taken by the United Nations to combat terrorism. However, there are number of problems that need to be identified and resolved under International law, to achieve terror free world. The first major concern is that of definition. Secondly, shall the distinction between the International and domestic nature of armed conflict be blurred, when it comes to terrorist attack? Thirdly, shall the terrorist attack when infringes the right to property shall be regarded as crime against humanity, so that, that can be brought under the jurisdiction of supranational court such as International Criminal Court? Fourthly, whether state shall be held responsible for terrorist groups on their territory? Indeed, non consensus of the states on these questions troubles International law to equip itself to fight against terrorism. The attempt of this paper is to analyze these questions and to find out the current status of international law to combat terrorism.
*Assistant Professor, Dept. of Law, Dr. Ambedk ar College, Nag pur, INDIA.

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I. Is it an international phenomenon? The phenomenon of terrorism became an International concern in the 1960, when a series of aircraft hijackings hit the headlines. When the 1972 Munich Olympic games were later disrupted by the kidnapping of Israeli athletes by a Palestine group, the then UN Secretary- General, Kurt Waldheion, asked that the issue be placed on the general assemblys agenda. In the heated debate that followed, the assembly assigned the issue to its sixth (Legal) committee, which subsequently proposed several conventions on terrorism. Thus, this phenomenon is not new to the International community 1 . However, the form of terrorism, the world is facing today, is somewhat different and more complex in nature. This is mainly because of the technological development, advanced communications and other development in the present era. These terrorist groups are technically much advanced. They use different techniques to execute their mission. They can travel easily at International level or they can sit at one place and manage the whole affair with the help of technology. This led to aggravated form of terrorist attack, which is impossible to be tackled by one independent state. Without co-operation and assistance at International level, to combat terrorism will be distant reality. This clearly means that terrorism is an international phenomenon and requires efforts at International level. The General Assembly has adopted number of resolutions calling for ratification of the various conventions and for improvement in co-operation between states in this area.2 However, for international law this is a challenge because of non-consensus amongst international community on different issues. II. International Legal Framework on Terrorism Despite political difficulties, increasing progress at an international and regional level has been made to establish rules of international law with regard to terrorism. There are number of International Conventions on terrorism, however 12 International Conventions and Protocols related to terrorism have been identified by the United Nations Counter Terrorism Committee and Terrorist Prevention Branch as the principal International Counter Terrorist Treatise.3 Highlights of Anti-terrorist International Conventions: In so far as the first approach of the International law is concerned, the UN has adopted twelve international conventions concerning terrorism, dealing with issues such as hijacking, hostage s and terrorist bombings. The summery of current Terrorist related Conventions is as followers: (1) All the conventions are directed, at the protection of potential terrorist targets or at the means through which terrorist organizations operate. (2) They do three main things: I) They require state parties to criminalize certain conduct, II) They provide for the prosecution or extraditions of perpetrators of such criminal acts, III) They impose obligations upon states to suppress the conduct in question. Three potential target groups exist within the twelve conventions: I) Civil Aviation ( the Tokyo, Hague & Montreal Protocol); II) Persons (the Protected Persons Convention and the Hostages convention) III) And operations at sea (the Rome Convention & Rome Protocol). 4 In addition, the UN has sought to tackle the question of terrorism in a comprehensive manner. In December 1972, the general assembly set up an ad hoc committee on terrorism 5 and in 1994 a
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Terrorist activities are also not new for India. India has witnessed sporadic attacks at different part of country and therefore India has been tackling these kinds of activities since independence. 2 See: Resolutions 34/145,35/168 and36/33, available at <http://untreaty.un.org> 3 See: The UNs Treaty Collection list of Convention on Terrorism, available at <http://untreaty.un.org/English/Terrorism.asp> 4 For details see: Alex Conte, Counter-Terrorism & Human Rights in Newzeland, 2007. Electronic copies of this publication is available online at <http://www.lawfoundation.org.nz> 5 See: General Assembly Resolution 3034 (XXVII) available at <http://untreaty.un.org>

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Declaration on Measures to Eliminate International Terrorism was adopted.6 This condemned all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed, noting that criminal acts intended or calculated to provoke a state of terror in the general public, a group or person or 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. An ad Hoc Committee was established in 1996 7 to elaborate international conventions on terrorism. The committee is also working on drafting a comprehensive convention on international terrorism. 8 The Security Council has also been active in dealing with the terrorism threat. It has characterized international terrorism as a threat to international peace and security. It has however, the 11 September 2001 attack upon the world Trade Center that moved this process onto a high level. 9 After this incidence the Security Council Resolution against terrorism abhors and rejects all forms of terrorism and obligates the Member states to oppose the perpetration of terrorism from their soils. In resolution 1377(2001), the Council, in addition to reaffirming its earlier propositions, declared that acts of international terrorism constitute one of the most threats to international peace and security in the twenty-first century, and requested the Counter Terrorism committee to assist in the promotion of bestpractice in the areas covered by resolution 1373, including the preparation of model laws as appropriate, and to examine the availability of various technical, financial legislative and other programmes to facilitate the implementation of resolution 1373. 10 In addition to UN activities, a number of regional instruments condemning terrorism have been adopted.11 With the increase number of efforts in form of UN Conventions and Regional instrument to suppress the terrorism; the emphasis was laid from all angles for the preservation of human rights. All these Conventions and regional Instruments are in conformity with the international human rights standard and International Humanitarian Law. Thus radical changes have been effected in international law to combat terrorism through legislative steps. But the efforts proved futile. Neither satisfactory definition of terrorism was formulated nor adequate legal constrains were placed on independent state. Activities of internal disturbances of terrorist have not been included within the framework of International regime. No direct jurisdiction has been granted to International Criminal Court and no follow up action on an International treaty to combat terrorism ensued.

III. Need for Reform (A) Definition of Te rroris m:

Increasingly, questions are being raised about the problem of the definition of a terrorist. Let us wise and focused about this: terrorism is terrorism What looks smells and kills like terrorism is terrorism.Sir Jeremy Greenstick, British Ambassador to the United Nations, in post September 11, 2001 speech12 . Indeed, this is the feeling and reaction of every common man in the world. Why do we fight on what is terrorism? One can easily sense it! But, legally speaking, it is not enough. To declare war against terrorism within the framework of law one need to have precise and exact definition. However, terrorism by nature is very difficult to define. Finding a definition of terrorism has haunted countries for decades. The first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the Convention drafted in 1937 never came into existence. The UN
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General Assembly Resolution 49/60, available at <http://untreaty.un.org> General Assembly Resolution 51/210 available at <http://untreaty.un.org> 8 M alcolm N. Shaw, International law. (The Press Syndicate of the University of Cambridge 2005) 1050 9 M alcolm N. Shaw, International law. (The Press Syndicate of the University of Cambridge 2005) 1051 10 M alcolm N. Shaw, International law. (The Press Syndicate of the University of Cambridge 2005) 105. 11 This include the European Convention on the Suppression of Terrorism, 1977, the South Asian Association for Regional cooperation Regional convention on Suppression of Terrorism,1987, the Arab Convention for the Suppression of Terrorism,1998 etc. for detail see: M alcolm N. Shaw, International law. (The Press Syndicate of the University of Cambridge 2005) 1052 12 Anju Puri, Jurisprudence of Terror, Oct 2006 Criminal Law Journal 250

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member state still has no agreed definition. Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present twelve piecemeal conventions and protocols. 13 The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures. The Secretary General of the United Nations who was expressing his impatience with the inability of the international community to reach a commonly agreed upon definition. He stated, I understand and accept the need for legal precision. But let me say frankly that there is also a need for moral clarity. He identified the bottom line in the debate on a definition of terrorism, namely, that there can be no acceptance of those who seek to justify the deliberate taking of innocent life, regardless of cause or grievance. If there is one universal principle that all people can agree on, surely it is this. 14 Thus, the definition of terrorism shall be broad enough to include into itself all acts, methods and practices of terrorism, which invades the fundamental rights of people or state, as criminal and unjustifiable, wherever and by whomsoever committed. (B)International and Domestic nature of armed conflict: Prescriptions against violent attacks under International law have traditionally been evolved under two categories. (1) Armed Conflicts between nations and (2) Internal disturbances within a nation. While the conduct and consequences of armed conflicts between nations such as wars and borderskirmishes are regulated by International criminal Law, the occurrences of internal disturbances within a nation are largely considered to be the subject matter of that particular nations domestic criminal justice system and Constitutional principles. It is often opined that, this demarcation have put challenges before the countries to tackle with the problem of terrorism. As the act of terrorism have acquired global phenomenon, it cannot be curbed without international co-operation, for ex. In absence of bilateral treaties for extradition or assistance in investigation, it is quite difficult to take legal action against these perpetrators. Unfortunately, there is no clear legal basis to ensure international co-operation and assistance, for the attack which are usually classified as internal disturbances in the nation where they took place. Therefore each independent state is free to take any action and form its own strategies to deal with terrorist activities within its national territory. That sometime may lead to no action on the part of state or sometime arbitrary action. 15 In this regard one strategy suggested is that, there is need to have international law, wherein obligations can be placed on different countries to collaborate in the investigation and prosecution of terrorist attack that have taken place in any one country. This calls for blurring of distinction between the international and domestic nature of armed conflict when it comes to terrorist strikes. 16 (C) Jurisdiction of International Criminal Court for Terrorist Activities Generally, terrorist activities are carried out within the national territory of a particular state. And as Internal disturbances within a nation, is not covered by International Criminal Law, this need to be tackled by domestic criminal Law. Here Municipal Law needs to proceed with the help of Extradition laws and treatise to bring to book any criminal guilty of perpetrating a crime in a particular country. It means if there is no such treaty between the states, very limited options are available to the state to punish
Arjit Pasayat, Terrorism And The Threat to The Rule of Law In India, vol.06, 2010 Supreme Court Cases 8-16 Supra note 12 15 Aftermath of 26/11 attack on America, they have evolved his own doctrine pre-emptive action to justify counter terrorism operations in foreign nations. However many opines that this is arbitrary action, not strictly within the purview of law. This is nothing but breaching the sovereignty of another independent state. 16 D. Leena, Speech delivered by K.G. Balakrishnan, Chief Justice of India, at International Conference of Jurist on Terrorism, Rule of Law and Human Rights, at New Delhi on Dec.13-14, 2008, available at www.google.co.in
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the perpetrators of terrorist activity. As well because of lack of consensus on the definition of terrorism, still today it does not cover under the direct jurisdiction of International criminal Court. In this regard it is suggested that, internal terrorist attack when infringes the right to life, liberty and property shall be regarded as Crime against Humanity, which can then be tried before a supranational Tribunal such as International Criminal Court. However, the obvious practical problem with this suggestion is that prosecutions before this Court need to be initiated by the United Nations Security council (UN SC) and the latter body may be reluctant to do so in instance of one-off terrorist attacks as opposed to continuing conflicts. 17 (D) States responsibility for terrorist home on their territory: There are lots of opinions coming from different field that the state, where terrorist have their home shall be held responsible. Prima facie it looks very genuine but practically it is very difficult to enforce. 1994 Declaration on Measures to Eliminate International Terrorism condemned the terrorist act and further states that states are obliged to refrain from organizing, instigating, facilitating or tolerating terrorist activities and to take practical measures to ensure that their territories are not used for terrorist installations, training camps or for the preparation of terrorist acts against other states. States are further obliged to apprehend and prosecute or extradite perpetrators of terrorist acts and to co-operate with other states in exchanging information and combating terrorism. 18 Though this is international mandate to take stringent action against the terrorist group, one cannot hold the state responsible for no-action on its part due to following basic questions: 1. Do terrorist networks need a home? 2. Do they really require active and strong support from one particular country to achieve their motto? 3. Do they need a strong state to provide funding and supplies? The answer to all these is question is negative. Past experiences shows that the objectives of terrorist organizations such as Al Qaeda and the symbiotic organizedcrime networks that help sustain these groups are not confined territorially or ideologically to a particular region. They are explicitly global in orientation.19 They generally prefer to carry on their activities from the territory of weak or failed state, so that practically it is impossible on the part of government of these states to have control over the activities of these groups. Because of some or the other weakness, the government is reluctant to take any action against these terrorist groups. 20 For the most part, terrorist groups have gained control over territory in a failed state through a Faustian bargain with authorities, usually by offering its services to the failed state during times of conflict. 21 These groups are mostly earning money through smuggling and drug trafficking. 22 Washingtons global anti-terrorism war against the failed state of Afghanistan and the Al Qaeda network has been largely successful so far in destroying Al Qaedas infrastructure on Afghan territory. Islamist themselves have admitted that the loss of the Islamic Emirate of Afghanistan represents a major setback

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Ibid. A supplementary declaration was adopted in 1996, which emphasized in addition that acts of terrorism and assisting them are contrary to the purposes and principles of the UN. Also see: General Assembly Resolution 51/210 and Resolution 55/158,2001, available at <http://untreaty.un.org>, 19 The 2001 trial of M adji Hasan Idris, an Egyptian member of the radical Al Wad organization, revealed the extent to which terror has operationally adopted the global business model. For more details see: Gangulys, Law of National Security, Control of Goondas, Gangsters and Anti-Terrorism. (Allahabad: Dwivedi Law Agency 2010). 20 Example of Pakistan can be cited here. If Pakistan government takes any action against the terrorist group on their territory they face terrorist attack on their territory resulting into loss of life, liberty and property. 21 In Bosnia, Kosovo, Chechnya, Sudan, and Afghanistan, Islamist fighters would arrive to partake in local wars, bringing with them not only man power but much needed equipment and finances. 22 Failed states have weak or non-existent law-enforcement capabilities, permitting terrorist groups to engage in smuggling and drug trafficking in order to raise funds for operations.

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to the cause but are confident that Al Qaeda can revive under the proper conditions. 23 Even after the decisive military strikes launched against Al Qaeda installations in Afghanistan, killing of their he ad, Osama Bin Laden in Pakistan, the organizations and other like it remain a threat. Therefore the answer to the question of holding government responsible for the actions of non-state actors lies in the fact that, the state shall understand this as moral duty. The International law needs to work out some practical solution in this regard. Concluding Observation: There is a crying need to work towards an effective comprehensive International Instrument on Terrorism. As terrorism has become the global phenomenon, international law is the vital instrument through which one can have check on these merchants of death i.e. terrorist. Life, liberty and property have utmost importance in the human life, which is at constant stake because of terrorist activities. To protect these fundamental human rights of the people of the globe, all nations must come together in terms of co-operation and assistance in fight against terrorism. There are certain lacunas at present, in the existing international legal framework (may be because of some obvious reason), which need to be resolved unanimously by all the members of United Nations. Being instrumental to this effect, UNs needed to strengthen its power and must try to work hard to eliminate this threat to human life and its sanctity. While doing so it must take into consideration and nurture the basic human rights of the people in general. Counter terrorist activities need to be in consonance with the United Nations Charter and Constitutional mandates of the country.

Al-Quds Al-arabi, February 27, 2002. For more details see Gingilis, Law of National Security, Control of Goondas, Gangsters and Anti-Terrorism. (Allahabad: Dwivedi Law Agency 2010) 107
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