Skip to main content

Coping with the Challenges of Terrorism and International Law



The word “Terrorism” which was originally coined to describe state action, undertaken to consolidate power or quell dissident movements has evolved over the years. Though the term “state terrorism” still holds currency, today, especially after the September 11, 2001 attacks, the whole notion of terrorism has tilted to an extreme side of the axis. Today terrorism is seen as a phenomena and the violence committed, described as a ‘terrorist act’ is said to be generally perpetrated by loosely organized groups or individuals which at best share a common and fanatical religious ideology.

The common perceptions of terrorism could be described as a means to attain political goals which can not be achieved in a lawful or constitutional manner, part of a strategy, used tactically by organized groups and to create fear among ordinary citizens to further a cause.

Addressing terrorism in legal terms is a very complex and challenging task, where differences of opinions and competing concerns coupled with the emergence of new forms of terrorist activities have left many unresolved issues.  Presently, there is no universal treaty that defines exactly what terrorism means. The only attempt to formulate such a treaty, the Convention for the Prevention and Punishment of Terrorism drafted in 1937 by the League of Nations, never came into force. But the United Nations has clearly stated in its four Geneva Conventions and supplemented by the two additional protocols in 1977, that civilians are to be protected under any and all circumstances. Therefore, international humanitarian law does provide a framework, which can deal with acts of violence associated with terrorism.

Interpreting International Humanitarian Law
International humanitarian law (IHL) does not provide a concrete definition of terrorism, but it does prohibit most acts, which if committed during armed conflict, would be termed as terrorism if they are committed in peacetime. The rationale behind IHL is the ‘principle of distinction’, that the persons involved in armed conflict must at all times distinguish between civilians and combatants and between civilian objectives and military objectives.  Derived from international humanitarian law are many rules which specifically aim to protect civilians, like the prohibition of direct attacks, prohibition against the use of indiscriminate forces, hostage taking and the use of ‘human shields’.

The applicability of IHL cannot be extended to all the events included in the notion of a ”global war on terrorism” but only to specific events which are constituted as armed conflicts. The incidents of violence which are excluded are screened through the provisions of the domestic laws of a state. But Article 3 of the convention clearly states “each party to the conflict”, regardless of its status as an armed conflict or not is found by the provisions of the article. Restrictions are also imposed by Article 51 and Article 52 of Protocol 1 which cannot be bypassed by claiming the right to reprisal. Terrorist acts causing death or serious injury to civilians are breaches of the Geneva Conventions; these are termed as war crimes.

Similar restrictions on the use of force are applicable to states in their response to terrorist activities which are now commonly termed as “counter terrorism”. State forces are obliged to respect the Principle of Discrimination and Proportionality and are not expected to bypass it under the garb of ‘collateral damage’ or military necessity. The Beslan massacre in 2004 can be sited. Russian security forces entered the school premises with tanks, incendiary rockets and other heavy weaponry where some 1100 civilians were taken hostage including 770 children by a group of Chechen terrorists. The operation ended with the killing of all the terrorist but more than 350 civilian lives were lost. The terrorist groups certainly breached IHL by taking civilians as hostages but was the act committed by the security forces justified?

IHL permits members of the armed forces of a state to engage in hostilities during an armed conflict. They are termed as ‘lawful’ combatant and are privileged with the status of prisoners of war (POW) in cases of their capture. But if a civilian is involved in direct hostilities then he/she is termed an ‘unlawful’ combatant, and will not be accorded the POW status and will be prosecuted under domestic law.

Similarly ‘enemy combatants’ or militias and mercenaries who are captured are entitled to humane treatment and prosecution either according to IHL or domestic laws. But facilities like the Guantanamo Bay detention facility contradict the prescribed principles. The detainees are labeled ‘illegal’ or ‘unlawful enemy combatant’ and are neither accorded POW status nor are covered by the Geneva Convention. International humanitarian law is viewed as an ‘Obstacle to Justice’. Therefore, this not only violates the Nuremberg principles but also defies the spirit of the Geneva Convention.

Countries have passed new laws and adopted new provisions to fight terrorism. But these laws restrict the human rights of ordinary citizens in the name of terrorism. For example, in December 2001, the Belarusian Parliament approved the “Law of the Republic Belarus on Fighting Terrorism.” In a country which is already saddled with poor human rights record, this law opened the door for further limitations of free expression and provided impunity to governmental forces in their anti-terrorism campaign. Similarly, acts like UAPA and POTA in India and the USA Patriot Act, grant custody of ‘suspected’ terrorists without charge.

Certainly such provisions in domestic law can be misused but it should also be noted that under international law violent acts committed by terrorists organizations are not seen as intrusion on human rights. They are seen as sporadic incidents. Whereas, counter terrorism operations are usually viewed as being arbitrary in nature.

Conclusion
Although IHL does not specifically deal with evolving acts of violence related to terrorism in today’s world it clearly upholds its principle position of protecting civilian life under all circumstances. A lot of unanswered questions remain like how does IHL view the logic of terror as “alternative justice”.

In the end IHL advocates humane treatment of persons involved in terrorism but it doesn’t obstruct the criminal justice system in seeking justice for those who are guilty. By establishing the International Criminal Court the international community has made an important effort in prosecuting and punishing alleged terrorists and ultimately preventing acts of terrorism.

http://www.internationalpolicydigest.org/2012/12/19/coping-with-the-challenges-of-terrorism-and-international-law/

Comments

Popular posts from this blog

India-Malaysia ties and the future

Prime Minister Anwar Ibrahim is on his first official visit to India. The main aim of this visit is to seek support for Malaysia’s application to join Brics and to fortify bilateral ties, as the country is keen to improve its connections with one of the rapidly expanding economies in Asia. In light of the increasing crumbling of the global order, particularly stemming from trade disputes between the United States and China, as well as the proxy conflict involving the United States and Russia, Malaysia is encouraged to reassess its foreign policy to uphold its neutral stance. Given India’s status as the largest democracy and the fifth-largest economy globally, along with its notable advancements in indigenous space and defence technologies, it is proposed that India emerge as Malaysia’s key partner in the years ahead. Why India is important for Malaysia The historical ties between India and Malaysia extend back several centuries, with significant Indian cultural, religious, and administ...

THE HISTORY OF TERRORISM: MORE THAN 200 YEARS OF DEVELOPMENT

The history of terrorism dates back at least 1500 years when Jewish resistance groups (66 - 72 A.D.) known as Zealots killed Roman soldiers and destroyed Roman property. The term assassin comes from a Shi'ite Muslim sect (Nizari Isma'ilis - also known as hashashins "hashish-eaters") fighting Sunni Muslims (1090 - 1275) and during Medieval Christendom resisting occupation during the Crusades (1095-1291). The hashashins were known to spread terror in the form of murder, including women and children. The brotherhood of Assassins committed terror so as to gain paradise and seventy-two virgins if killed and to receive unlimited hashish while on earth. The modern development of terrorism began during the French Revolution's Reign of Terror (1793 - 1794). During this period the term terrorism was first coined. Through the past two hundred years, terrorism has been used to achieve political ends and has developed as a tool for liberation, oppression, and i...

The by-election in Kuala Kubu Baharu (KKB) and the Indian electorate

  I was born in Malaysia, belonging to the Indian ethnic group, which constitutes approximately 7% of the country's total population. My durable credence is that I am Malaysian first and foremost, and only then do I identify myself as Indian. Regrettably, it saddens me to witness and hear about the actions of certain politicians who question my loyalty to Malaysia. What is even more disheartening is that some Malaysians have been influenced by the manipulative rhetoric of these self-serving politicians. Recently, I have observed numerous discussions on both mainstream and online news platforms regarding the recognition and inclusion of Indians by ruling parties. Surprisingly, even the opposition has displayed a significant interest in the welfare of Indians. Upon contemplating the reasons behind this sudden surge in attention towards Indians, it becomes evident that it is primarily driven by the upcoming Kuala Kubu Baharu (KKB) by-election. It is noteworthy that such ...