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Terror Free Legal Regime

The United Nations Charter and the contemporary international law have repudiated illegal use of force barring in the event of self-defense. Armed conflicts and wars of national liberation do occur and they are regulated by the humanitarian laws- the Geneva, the Hague and the UN laws including the Martens clause, among others. The jurisdiction of the International Criminal Court would encompass the serious international crimes as incorporated by the Rome Statute, 1998. Proposals about bringing Terrorism and Drug-trafficking within the scope of the ICC are on the record.

Some quarters even make the proposal that a UN High Commissioner for combating international terrorism could be created. The political discourse does not shy away at the same time from drawing a red line between wars of national liberation or exercise of the right to self-determination through armed struggle and the international Terrorism as so perceived by the global community. The debated has not been ousted from the agenda, despite gray areas meticulously carved out by the plenipotentiaries. A regulatory regime for combating international Terrorism, has however, emerged with the adoption of several conventions and declaration, which carry immense moral authority.

Out of 12 treaties relating to international Terrorism, the International Convention for the Suppression of Terrorist Bombings, adopted by the UN General Assembly on December 15, 1997 and the International Convention for the Suppression of the Financing of Terrorism adopted by the UN General Assembly on December 9, 1999 is significant in the present context. The Security Council Resolution 1267 (1999) dated October 15, 1999 has demanded the Taliban turn over Osama bin Laden to authorities in a country where he has been indicted.

The UN Security Council resolution 1373 (2001) has given teeth to the General Assembly resolution of December 9, 1999. By this resolution 1373, the States have the obligation to ensure to bring to justice anyone who has participated in the financing, planning, preparation or perpetration of terrorist acts or in supporting such acts. The municipal laws and regulations have to establish such acts as serious criminal offences leading to harsh sentences.

The SC resolution 1373 further provides that all States should suppress and prevent the financing of terrorism and freeze the financial assets, the funds and the economic resources of those who commit or attempt to commit, participate or facilitate in committing terrorist acts, and shall refrain from giving any form of support to entities or persons who are involved in terrorist acts. The States would have to cooperate with each other in exchanging terrorist-related information about their possession of weapons of mass destruction, communications and technologies and in matters relating to criminal investigations or criminal proceedings as regards financing terrorist acts.

The asylum-seekers would not have planned, facilitated or participated in terrorist acts and extradition of alleged terrorists would not be refused on claims of political motivation. The need for launching a global response by way of coordinating regional, sub-regional, national and international efforts has also been highlighted. The SC resolution 1373 has teeth in the form of SC Committee of the Council, which will monitor the enforcement of the resolution.

The General Assembly debate in the first week of October 2001 on combating international terrorism has, however, reflected pluralism in understanding terrorism and combating the same. The States did not differ in combating terrorism and had difference in their approaches to the problem. By representing the Arab group, Libyan ambassador made the statement that the Arab group would oppose any attempt to classify popular resistance to occupation as terrorism and wanted to justify resistance to army occupation by implication in any State. Pakistan’s ambassador supported the fight against terrorism but emphasized that the root causes of terrorism have to be tackled. Malaysia’s ambassador made the remark, ‘Acts of pure terrorism, involving attacks against innocent civilian populations- which cannot be justified under any circumstances- should be differentiated from the legitimate struggles of peoples under colonial or alien domination and foreign occupation for self-determination and national liberation.

The Security Council resolution 1373 has been preceded by the adoption of the International Convention for Suppression of the Financing of Terrorism, December 9, 1999. After ratification of the 1999 Convention by 22 States, it would be enforceable. The offences as cited in the convention are extraditable offences. The convention would halt the passing of terrorist money, collection of funds that would be used in committing crime by targeting civilians with the intention of intimidating the Governments and would be instrumental in seizing funds allocated or collected for committing terrorist crimes. It targets at the financial sponsors of international terrorism.

The Terrorist Bombing Convention, 1997 has been signed by 52 signatories and ratified by 8 States till the end of the year 2000. Wider international support to the enforcement of the convention was anticipated, at the time when the Group of Seven took the initiative in Paris and Lima in 1996. The less industrialized States took lesser interest in the Terrorist Bombing Convention, 1997 which is enforceable in 2001.

The international legal regime had made efforts to usher in a terror-free global civil society since 1937 by adopting a number of international conventions and regional instruments. The UN General Assembly has adopted in 1989, the Convention against Recruitment, Use, Finance and Training of Mercenaries, 1986. The member States shall not recruit, train, use and finance mercenaries, prevent terrorism at the same time and should not use the instrument towards opposing the exercise by the people of their legitimate right to Self-Determination.

In retrospect, the anti-terrorism conventions may be assessed briefly. Unification of all these conventions in one format or another could be made a constructive proposition for the penal lawyers. Article 1 of the Convention for the Prevention and Punishment of Terrorism, 1937 provides for the installation of an International Criminal Court for the prosecution and trial of persons accused of committing crimes of Terrorism as defined in the Convention. The corpa delicti are enunciated in Articles 2, 3, 9 and 10 of the 1937 instrument.

Air hijackings in the late 1960s and early 1970s, more singularly by the Palestinians whose country had been totally demolished and wiped out from the map by the West in order to construct Israel in the Palestine territory and not in any European or American lebensraum, raised the level of terrorism in the air. The former Soviet Union and India did not encourage hijacking, but solidly espoused the Palestinian cause. The West and their collaborators- the Jewish Irgun and Stern terrorists have ruthlessly committed the incipient sin of demolition of the Palestine State. Even today, the genesis of Middle-East terrorism remains the proverbial hen and egg argument.

However, for all the misdeeds of the West, the global community had to respond to terrorism with the adoption of

(a) The Convention of Offences and Certain Other Acts committed on board Aircraft, September 14, 1963 (Tokyo Convention),

(b) The Convention for the Suppression of Unlawful Seizure of Aircraft, December 16, 1970 (The Hague treaty) and (c) The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, September 23, 1971 (Montreal Convention).

The suicide bombers who used pen-knifes or something of that kind and destroyed the WTC on September 11, 2001 smashed a part of the American fortress- the Pentagon and nearly missed the demolition of the White House, has committed crimes under these conventions, among others. Before the pen-knifery event, nobody on earth can ever have a wild imagination that American defense has been that much vulnerable and weak in spite of the NMD and Star Wars and so and so forth. The suicide bombers have definitely committed crimes of terrorism, whatever their intentions and justification of causes.

Montreal Convention by its Article 1 states:

1) Any person commits an offence if he unlawfully and intentionally:

(a) performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft, or

(b) destroys an aircraft in service or causes damage to such aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or

(c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft or to cause damage to it which is likely to endanger its safety in flight; or

d) destroys or damages air navigation facilities or interferes with their operation, if such act is likely to endanger the safety of aircraft in flight; or

(e) communicates information which he knows to be false thereby endangering the safety of an aircraft in flight.

These air-safety conventions are found to be inadequate and deficient in the context of the WTC suicide bombing and they call for revision. The hijackers found some loopholes on September 11 and humbled America which is the vanity symbol of invincibility of mankind and the vindictive power in retaliation has to rain for weeks all the thunderbolts she has manufactured to the Afghan desert which has already been extensively land-mined with American help to out the Soviet presence then. Terrorism has its genesis in politics and one has to go to roots while trying to remove it. Inadequacy of the laws was not the primary cause of American failure to defend itself against the pen-knifers from the middle east; humanity failed at that crucial moment.  Why humanity failed at that instant is a subject of study for scholars all over the world. Cursing Terrorism is not enough; we have to march an extra mile in our search for humanity.

Mercenaries also commit terrorist crimes. The UN General Assembly by its resolution 2548 adopted in December 11 1969 declared mercenaries outlawed and qualified the use of mercenaries against national liberation movements. By UN General Assembly resolution 2625 (October 24, 1970), every State has the responsibility to refrain itself from organizing or participating in terrorist acts on the territory of another State. It also states, “Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.” The Declaration on the Strengthening of International Security, December 16, 1970, General Assembly resolution 2734 prevents States from organizing terrorist acts in another State. (Blishchenko: 62-et. Seq.)

The Convention to Prevent and Punish the Acts of Terrorism taking the form of Crime against Persons and Related Extortion that are of International Significance, February 1971 of the OAS has the objective to prevent and punish acts of terrorism, especially kidnapping, murder and other assaults against the life or physical integrity of persons to whom the State has a duty to give special protection. The principle of aut dedere aut judicare (Art 5) is applicable; the State has to offer the matter to competent authority in the event of refusal of the request for extradition of the accused.

The period from 1972 to 1987 to be more specific or the 1990s in wider specific or the 1990s in wider span has been found in the history of terrorism on the one hand and national liberation movements on the other hand. A plethora of Conventions and resolutions of the UN had flooded in the world order of the cold war vintage. In the post cold war period, the US and its allies stand out as the sole arbiter of the new world order (or disorder) and its mandate compounded by dollar power and military might defines the corpa delictis even the non-aligned movement which acted as a third force has subsided. However, the global consensus about combating terrorism and espousing national liberation struggles in legitimate cases has not been totally vanquished by the American national-vital interest doctrine, which dictate terms to the new world order (or disorder).

The territorial integrity principle also remains uneroded in the new era.

The non-aligned movement led by India and like-minded States had been pro-active in combating terrorism in its true sense of the term. UN General Assembly resolution 3034, dated December 18, 1972 is significant in that Resolution 3034 highlighted the importance of international cooperation for

effective prevention of terrorism, of investigating the underlying causes of international terrorism and it re-affirmed the inalienable right of all peoples under colonial, foreign or racist domination to self-determination and independence. The resolution supported by India, Afghanistan and Algeria among others as I Bishchenko and N Zhdanov wrote (p 214), condemns the terrorist acts of repressive colonial, foreign and racist regimes. An ad hoc committee of 35 members has also been constituted. The American diplomacy of that era led her to unwittingly oppose the use of force for the sake of denial of the right of self-determination.

Israel which voted against the resolution would narrow down the concept of international terrorism to Arab terrorism only and lay down her definition of terrorism a: ‘terrorism consists of an unlawful (criminal) act directed against a state, its organs, its nationals, interests or property, including its means of transportation whenever such act is meant or calculated to engender a state of terror or panic in the minds of the public as a whole, or of an individual or groups.’ (21:217). Syria, however, focused more on State Terrorism that could be the most dangerous of all kinds of terrorism. The issues of State Terrorism have been taken up by the special committee for definition of aggression. Undoubtedly, state terrorism is also an active and significant concept, endorsed by several countries including the Arab world. Primarily as a result of American hegemonism, the vital concept of state terrorism has been underplayed, although at present the US lists 7 states in this category. The United States itself should have been placed at the top after considering her track record after the Hiroshima, Vietnam adventures. The subdued world is incapable to raise this issue in the world order. A bipartisan world order would be capable to hammer out the political instrumentality to ease out international terrorism; as long as the national-vital interest theory supersedes the world of equity, the terrorist would sneak into that loophole and irritate psychic impacts of the people.

The study of the underlying causes of Terrorism has been made the objective of the UN General Assembly resolution 31/102 on December 15, 1976 – ‘Measures to prevent international terrorism…’ The ad hoc committee worked in 1977 and 1979 in order to progressively eradicate the underlying causes of international terrorism. The West in particular was not fully committed to the eradication of the malaise from its root causes and the vestiges still remain chronic since the 1970s.

The international community has adopted the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including diplomatic agents.

Mercenary had become an evil institution for overwhelming the weaker people and State. The use of mercenaries by colonial powers for the suppression of national liberation movements has been accepted as a criminal act by the UN General Assembly resolution 3103 of December 12. 1973 related to Basic Principles of the Legal Status of Combatants Struggling against Colonial and Alien Domination and Racist regimes. It could be added herein that at the time of adopting the Four Geneva Conventions in 1949, many of the future States were in the stage of liberation movements and as such, they had no voice in the diplomatic conferences. In order to compensate this political vacuum with their active participation, the two additional Protocols 1977 to the Geneva Conventions have been subsequently added. The humanitarian law regime has its own format of corpa delicti in the form of the grave breaches of the said conventions.

A benchmark had been made by the European regional bloc in 1977. The European Convention on the Suppression of Terrorism, January 27, 1997 has laid down the framework for prosecution and punishment of terrorists by excluding certain offences like the Unlawful Seizure of Aircraft etc. from the political offences. It has urged for the revision of the extradition treaties that have been entered into between the contracting parties. ‘Extradite or prosecute’ is the basic principle of the European Convention. Closely on the heels, it has been ensured by the 1979 International Convention against the Taking of Hostages. State parties have to prevent the crime as well.

The UN Security Council in its resolution 573 (1985) unequivocally condemned the crimes of abduction and hostage taking (Shaw 805). After the refusal of Libya to extradite the alleged bombers, the Security Council by its resolution 731 (1992) has considered international terrorism as a threat to international peace and security.

The world order in the past and also in the post-cold war period, notwithstanding the polemic about the ‘Clash of Civilizations’ and structures of peace as advanced by regimes, considers international terrorism as a menace. A plethora of Conventions apart, a universal convention is also on the anvil. The underlying causes and the subterranean faultiness have also to be addressed in equal measure by the new order.

*The article is written by Prof. Naorem Sanajaoba

(Courtesy: The Sangai Express)

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