Law Watch
Asia Cup 2007 International Symposium On Terrorism And Its Legal Aspects
Terrorism and international law
Sharin Shajahan Naomi
Though terrorism was not an unusual jargon in the domain of International law, the ripple effect across the world after the attack of 9/11has gratified it with a magnetic power and at the same time, the aftermath put spontaneously a crucial question before us 'whether the existent international law is incompetent to deal with this recent trend of terrorism?'
Couple of months ago I had the opportunity to participate in Asia Cup 2007 International Symposium on behalf of University of Dhaka, Law Department, which was hosted by International Law Student Exchange Committee at Tokyo, Japan. All the students from different countries like Thailand, The Philippines, Indonesia, Hong Kong, had a very constructive discussion on terrorism and its legal aspects. From those multifaceted discussions and the report presented on Terrorism and International Treaties by University of Dhaka, the legal aspects of terrorism has been discussed in a very precise form in this writing.
Whenever the phenomenon 'terrorism' would be judged from the legal point of view, the first question from any layman would be is there any treaty or convention on terrorism in international law? Fortunately, yes, the number is quite convincing around 30! It is to be mentioned that The UN Security Council Resolution 1566, supports the idea that the crimes recognised by existing international treaties form a part of a code of terrorist offence.
International agreements dealing with terrorism are of two types:
* Agreements signifying terrorism in specific word, like International Convention for the suppression of terrorist bombings adopted by the General Assembly of the UN on 15 December 1997.
* Treaties that do not refer the word terrorism directly but connected with it for its inherent nature like: Convention on the making of plastic explosives for the purpose of detection in 1991.
Under these conventions (though some of them have not defined the term) terrorism has been confined as 'an act of violence, it must be against life and property of innocent people and it must be done to intimidate or force any kind of decision making'. Except Arab Convention in 1988, most of the conventions have not taken the distinction between the act of self-determination and terrorism into due consideration. If this can be taken as comprehensive one then why International Law Commission is striving for couple of years to define the word terrorism? The most important point to be noted here is that what is required is not comprehensive one, rather an universally accepted definition of terrorism which is really a hectic task due to its intimate linkage with politics and religion (because in today's world one man's terrorist is another man's freedom fighter, where to draw the line ?).
The potentiality of these conventions cannot be negated by only citing the definition. The positive side of these treaties lies in an honest endeavour regarding three main perspectives:
Firstly, embracing terrorism as a universal problem, the treaties have emphasised on International cooperation in the matter of terrorism again and again.
Secondly, an attempt has been made to apply universal jurisdiction to combat terrorism.
Thirdly, strong restrictions have been made to convert a terrorist act into a political offence one.
Though no international legal enforcement mechanism has been prescribed specifically through these treaties, in international law the enforcement is much more dependent on the wish of state parties and hence only the state parties' cordial effort can enforce the treaties.
In Tokyo United Nations University, another dimension came before us whether Geneva Conventions can be made compatible vis-a-vis the current Terrorist attack? Geneva Conventions are applicable only in the time of conflict, but terrorist attack is also frequent in the time of peace and secondly, it is very hard to say but true that the provisions of the Geneva Conventions are inadequate to address this issue on some point. Geneva conventions mention that in order to be combatant, a person has to meet some specific criteria like carrying arms openly, wearing identifiable dress etc. But a terrorist does not maintain these requirements and hence according to Geneva Conventions they are not combatants. Then if they are not combatants, under Geneva Conventions' definition they are civilians, but do the people who have armed themselves with bombs and love to be in the guise of civilians to put up an instant attack really deserve the privileges of civilian?
I raised another point in the symposium that if an widely accepted distinction is not made between the struggle for self-determination sanctioned under international law and terrorism, the legal framework for terrorism would not be acceptable universally. And as usual I faced very common questions that whether I was supporting targeting civilians in the name of self-determination taking the shield of religion? My answer was definitely negative and in order to clarify my standing I also gave an example saying suppose a suicide bomber who goes to a civilian festival and blows out himself with innocent people and later a circular has been issued showing some short of ethical excuse for his act and another suicide bomber who is a member of well organised militia and who blows himself out with some military personnel from an occupying power with an intention to end the occupation and vindicate his right to self-determination, shouldn't we distinguish between this two ? My justification was -- if we don't give a legal status to the later one who is choosing a legitimate military target as his fighting strategy, it will discourage the groups to choose a struggle for self-determination embracing some basic principles of law of wars (like distinguishing between the military and civilian object). Also it would be in injustice to the principle of self-determination which has been cherished in the resolutions of UN.
One of my friends Verapat from Thailand gave his opinion saying that we need not go for the distinction, rather we can focus on the acts embedded in the various conventions and the acts themselves can be taken as an act of terrorism for whatever moral purpose it may be conducted. Students from University of Singapore balanced both of our arguments giving recommendation with a satisfactory consent from all that as for the current world politics it is not possible to arrive at a definition of terrorism, we can proceed sticking to a common denominator -- killing civilians intentionally will be absolutely condemned and prohibited and no justifications can be sanctioned as defence in this matter.
What we realise at the end of our discussion is that despite inadequacy, the present conventions on terrorism can be the weapon to encounter terrorism legally if the international community cooperate in the real sense and implement the spirit of the existing treaties These treaties can be regarded as an advancement of legal context of terrorism, if the parties to the convention really want to implement those and bring more state parties under the conventions to enforce those.
The writer is working in BRAC Research and Evaluation Division.
