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/
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