Sai Krishna Kumar, ISIL Aditya Joshi, Faculty of Law, Delhi University
Terrorism is seen as a widespread disruptive force by governments across the globe. The term terrorism cannot be defined in a simple or lucid manner as it has been constantly evolving and has a big history attached to it the inception being seen from the French revolution, but then as in, it was a positive concept and did not have negative baggage as it has in its current form. Terrorism has helped in shaping world history and every person has a different view of looking at its emergence, need, cause and effect. Through this article, the perspective is to define terrorism, lay down importance of countering terrorism while focusing on various aspects covering human rights, international treaties and coming together of the international community for achieving global peace and sustainable goals.
Last few months have seen nations like France and the United Kingdom became the victims of terror attacks. Whatever the intensity or the effect of these attacks would have been, it has become explicitly clear that the operational areas of the terror outfits are no longer confined to the South Asian countries or the African continent. Terrorism is an inhuman act of violence that has a religious or political intent at the backdrop. Thus, it has become imperative for the international community to be prepared via counter operations. There has been an expansion in joint-operations between countries to curb terrorism. This has led International law to act as an umbrella for coordinating national and international counter-terror strategies for effective prevention of terrorism. Some key areas of the global counter-terror structure include international cooperation in criminal law, safeguarding human rights and establishing the laws of war. It is an undeniable fact that the international community has played an important role in fighting terrorism. The United Nations has assisted its members in dealing with an extensive range of terrorist activities by employing various specialised agencies. Several new groups of terrorism have emerged in the recent past. For instance, the religion-oriented ISIS, politically motivated Hezbollah, and the IRA who seek territorial freedom. The international bodies have been able to curb these activities to a great extent due to their global reach. Terrorism is now seen as a violent activity intended to achieve several different motives, thus, there is a dire need for an internationally acceptable definition of this activity. The international law has not defined the term “terrorism” and has not limited its prevention to a single treaty or convention. On the contrary, counter-terrorist operations are regulated by a series of treaties, resolutions and conventions. The counter-terror operations are often conducted through drone strikes or covert missions. Such operations often result in collateral damages in the form of human life. Further, as terrorism has not been defined, categorizing a person as a terrorist often leads to disputes. Many questions are raised regarding the procedure involved in the prosecution of an individual accused of terrorism or the rights available to such a convict. These questions primarily form two categories,
The method in which International bodies conducts counter-terror operations in disturbed areas.The prevailing nature of laws in the national structure of a country. Hence, it becomes important to critically analysis the counter-terrorist operations in light of the right to life of an individual.
Jus Cogens and its prerogatives: the existential
The UN charter states that the purpose of the United Nation is “to maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace". The UN Charter further stipulates that
the decisions of UNSC shall be executed by its members through their actions in the proper international agency.
These decisions relate to military intervention or deployment of peace-keeping force to curb violence. Generally, the UNSC resolutions are framed under Chapter VII of the UN Charter. It becomes imperative on behalf of the state to fulfil the desired obligations. The UNSC on numerous occasions has used global initiatives to help a terror-stricken country. It will be relevant to mention here, that a few landmark UNSC resolutions have set a benchmark in International law in the fight against terrorism. The Security Council made it mandatory for its member states to freeze asset and prohibit sales of weapons to any person identified with terror groups.  Through landmark resolution 1373 (2001), the UNSC prohibited states from serving as safe havens and funding the terrorist organisation. It further mandated the state to have strict regulation on identity and travel documents. Further, it established a Counter-Terrorism Committee to check the implementation status of its member. To make sure that the counter-terror operations are under the purview of the humanitarian law, the UNSC passed resolution 1456 (2003). Apart from adherence to humanitarian principles, it promotes states to increase civic participation. This helps in creating awareness and prevents the brainwashing of relevant social and religious communities. The General Assembly also played a significant role in integrating the legal framework to resist terrorism through its subsidiary bodies and the special ad hoc committees on terrorism. The UN charter renders the UNGA resolution non-binding on member states. Despite this UNGA resolutions have been a major source of international law to counter-terrorism. Perhaps, the most notable achievement of the UNGA is establishing the United Nations Global Counter-Terrorism Strategy. The most distinctive feature of this strategy is an emphasis on the need to uphold the human rights of all individuals and to honour the municipal law of the country. Another key institution set up by former Secretary-General Mr.Kofi Annan is the Counter-Terrorism Implementation Task Force (CTITF). It acts as a coordinating platform to eliminate terrorism by sharing intelligence. Despite the requirement of conformity with international law and natural justice, the states are often accused of using regressive methods under the garb of anti-terror laws. It has been observed that the drone strikes conducted by the USA till the year 2013 itself in Pakistan, Yemen and Somalia had caused over major civilian causalities. No relief in international law has been granted to innocent victims of such operations. In the year 2004, the UNSC passed resolution 1566 which seeks to establish an international fund to compensate victims of terrorist acts. Currently, neither the above-mentioned compensatory body has been established nor does it consider compensation for victims of military interventions from third parties. Despite numerous resolutions like 1373, that prohibit sheltering of terror outfits, countries like Saudi Arabia, Pakistan, Lebanon and others continue to violate it. Reports of various states like Pakistan, Iran etc funding terror groups have also surfaced but there is no penal provision in International law against the state. The international agencies are left with military intervention or embargos as the only ways to counter such states. Thus, counter-terror operations conducted without territorial jurisdiction are a subject of much-heated debate across the international diaspora. Agencies like the CIA, Mossad are often accused of violating International sovereignty by conducting covert operations. The execution of Osama Bin Laden by the US Marines and the “Operation Wrath of God” to avenge the massacre of Israeli athletes are perhaps the most discussed cases. Over the last two decades, the international community has conducted numerous interventions to strike terror groups mostly leading to some temporary effects. Thus, it has become necessary for a country to have strong anti-terror laws guided by the international conventions within its own national system.
Right to Life and Anti-Terror Laws
There are huge disparities in anti-terror laws of different countries. Such disparities are caused due to a variety of factors ranging from the relationship with neighbouring nation-state to the nature of the governing political party. The major debate revolving around anti-terror operations is how the governing statute stipulates the law. Human right activists have often been critical of anti-terror operations terming them as regressive. It is claimed that anti-terror laws are mostly used as a tool to oppress conflicting ideology. The enforcement of emergency in India in and the witch hunt of journalists critical of the government in Cameroon are some such instances. Similarly, the use of military intervention to counter-terror by a third party is often seen as a way to bend the local government to follow a foreign ideology. The Human Rights Watch in its report conceded that there has been a rise in regressive anti-terror laws. The Amnesty International further supported this claim in its annual report of 2003. It accused various states of manipulating the international trend towards counter-terrorism by conducting a crackdown of the political opposition and critics of the government. Another instance of misuse of anti-terror laws by the state has emerged in the form of state surveillance of its citizen. Countries such as The United States, Mexico, China are being accused of conducting mass surveillance upon its citizen for gathering intelligence. However, it is the use of capital punishment and the treatment meted out to terror accused convicts that have received the maximum criticism. Proponents of capital punishment often claim that the death penalty often acts as a deterrent for a specific crime. Further, it is argued that if a terrorist is caught and is pardoned from death, he poses a great danger to society. For instance, in 1972, when German forces captured three perpetrators of attacks on Israel's Olympic athletes, the Palestine terror outfit responded by hijacking a German flight for the exchange of captives. Another famous example is that of the hijacking of Indian flight IC-814 which led to the exchange of three terrorists who are currently leading different terror outfits. However, human right advocates refute these arguments on many grounds. Firstly, it is argued that since most of the terrorist are brainwashed from a young age, they are not afraid to commit suicide and die. Secondly, even if they are sentenced to death, they are remembered as a martyr. It further puts the society in danger of terrorist retaliation. Thirdly, as discussed above and observed in countries like Egypt and Pakistan, tenets of a fair trial are not followed. For example- Pakistan resumed the death penalty in the year 2014 since then there has been no reduction in terror-related activities. Similarly, Egypt put an execution order of over 100 members of Muslim brotherhood without a fair trial. Lastly, it often argued that by taking life, we ourselves indulge in act of terror making us no less a criminal. The legal obligation to provide victims of human rights violations with an effective remedy is reflected in article 2(3)(a) of the ICCPR and the ICESCR. The General Assembly has urged States while countering terrorism:
[T]o ensure that any person whose human rights or fundamental freedoms have been violated has access to an effective remedy and that victims receive adequate, effective and prompt reparations, where appropriate, including by bringing to justice those responsible for such violations.
Understanding and noting the above-mentioned pointers and instances, . We realise that, even though each and every state strives to pursue extremely aggressive policies while curbing acts of terrorism and dealing with persons involved in terrorist activities, the legal obligation to provide victims of human rights violations, of terrorism or false accusations, with an effective remedy is reflected in article 2(3)(a) ICCPR read with Art. 8 UDHR. Also, the General Assembly has emphatically urged nation-states, while countering terrorism, has asked the international community to be more stern, cooperative and integrated to tackle terrorism.
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