Are there international law obligations on states to combat terrorism? Under what UN Treaties and International Conventions do these obligations emerge? Read this to know more about International Law and the War on Terrorism.
Introduction
Terrorism is a complex, global, and ever-evolving phenomenon whose effects are not limited to just one or two states but its aftershocks are felt across the globe.[1]
It is for this reason that the need to combat terrorism often finds mention in the resolutions, declarations, and statements of all important international or international summits, be they bilateral or multilateral.
For instance, the Indo-US joint statement released in the aftermath of Donald Trump’s recent visit to India called on countries to ensure that no territory under their control is used by terrorists to launch terror attacks.[2]
In this research project, we shall analyze in some detail the need for international cooperation arising out of International law obligations of States to combat terrorism and the challenges therein, especially the legal and human rights challenges.
For this purpose, we have divided this into 3 chapters apart from the introduction in the beginning and the conclusion at the end.
In Chapter 1, we shall analyze the international obligations of states emanating from various international conventions and resolutions and the legal challenges in implementing the same in their specific domestic legal frameworks.
In the subsequent and penultimate chapter, we have undertaken case-specific empirical analyses of various legal issues that confront the law enforcement officials and in this context analyze the intricacies of domestic laws of selected countries, particularly in the field of sharing of intelligence, and providing mutual legal assistance in investigation, arrest, extradition, and prosecution in selected terrorism-related cases.
In the final chapter, we have examined if there is an inherent contradiction between the international anti-terrorism laws and human rights laws.
We have discussed how excessive counter-measures by states, which violate human rights, hinder international co-operation in combating terrorism viz. detention without access to justice, indiscriminate search, seizure, arbitrary arrest, adoption of torturous interrogation techniques, intrusive methods of intelligence gathering, interception of communication, and freezing of assets, etc.
Lastly, we have concluded the research work by suggesting that a balance must be struck between anti-terrorism laws and human rights obligations.
International Obligation Instruments
In this chapter, we shall analyze the obligations of states emanating from various international conventions, treaties, and resolutions, etc, and the legal challenges in implementing the same in their domestic/municipal legal frameworks.
Article 1 of the United Nations charter states that the UN will act as a center to harmonize the actions of states for the attainment of common ends.*
End of Terrorism here becomes a common end for all states as terrorism in one form or other poses a direct threat to their sovereignty and territorial integrity, the two concepts with fundamental importance in International law and the arena thereof.
Therefore, the UN General Assembly has focused on terrorism as an international problem since very early and, through the 1980s, addressed the issue regularly through various resolutions most of which are legally binding on member states as discussed in some detail in the subsequent paragraphs.[3]
In addition to the 13+3 universal legal instruments to combat terrorism, the UN General Assembly and the Security Council have also adopted some landmark resolutions to combat terrorism.
These include the General Assembly resolutions concerning the financing of terrorism and the Global Counter-Terrorism Strategy and Security Council resolutions 1267, 1333, 1373, and 1540.
Following the 9/11 terror attack on the USA, the United Nations Security Council also established a Counter-Terrorism Committee (CTC) under Resolution 1373 which calls on States to become parties to these international instruments.[4]
UN Security Council Resolution 1373 of 2001 based on Chapter VII of the United Nations Charter is legally binding for all UN Member States. In its various provisions, the resolution effectively requires States to Prevent and suppress the financing of terrorist acts, criminalize the financing of terrorist acts, freeze the funds/assets/economic resources, criminalize terrorist acts as serious offenses, repress preparation and support of terrorist acts, provide the greatest measure of international cooperation in criminal matters, deny safe haven to terrorists, extradite or prosecute them as and when required and prevent forgery/fraudulent use of identity papers & travel documents.
This resolution is immensely important in terms of its significant outreach and bindingness as it calls upon states to intensify the exchange of operational information, intelligence sharing, logistics, etc and cooperate through bilateral as well as multilateral agreements, ratify and fully implement the 13+3 universal instruments against terrorism, ensure that asylum-seeker is not involved in terrorist acts, ensure no abuse of refugee status, and ensure that claims of political motivation are not recognized as grounds for refusing requests for the extradition.
The resolution also creates a Counter-Terrorism Committee (CTC) composed of all 15 members of the Security Council with the mandate of effective and efficient monitoring and implementation of resolution 1373. Its other objective is to receive and analyze the reports from member states and put emphasis and focus on States’ implementation and also coordinate technical assistance amongst states and other stakeholders.
Resolution 1624 (2005) of the Security Council that deals with the incitement to terrorism also calls upon all States to prohibit & prevent incitement to terrorism, deny safe haven to terrorists, and report to the CTC.
Security Council Resolutions 1456 (2003), 1624 (2005), and UN General Assembly Resolution 60/288 (2006) are interesting as they also talk about Human Rights vis-a-vis counter-terror strategies.
They provide that measures taken by States to combat counter-terrorism should comply with & should be in accordance with international law on human rights, international law on refugees, and other humanitarian laws. General Assembly Resolution 60/288 (2006) has an entire section dedicated to the compliance of Human Rights and the Rule of Law in combating terrorism.
There is also a Sanctions Committee created by the UN Security Council Resolution 1267 of 1999 to deal specifically with Al-Qaida and the Taliban.[5] Various other sanction regimes including 333 (2000), 1390 (2002), 1455 (2003), 1526 (2004), 1617 (2005), 1735 (2006), and 1822 (2008), etc have also been adopted at different stages under Chapter VII of the United Nations Charter.
They apply to individuals as well as organizations and provide among other things for freezing of assets, travel ban, and an arms embargo to deal strictly and effectively with terror financing and support. Security Resolution 1526 of 2004 establishes the Monitoring team to ensure the implementation and compliance with various listed objectives.[6] In this regard, member states are also required to submit annual reports pursuant to paragraph 6 of Resolution 1455 (2003).[7]
UN Security Council resolution 1540 calls upon states for domestic curbs to prevent the proliferation of Weapons of Mass Destructions (WMDs) and to provide no support to such non-state actors who are a threat to other sovereignty and global peace.[8]
Other International Treaties and Conventions
Besides the above-mentioned resolutions, there are over 16 International Treaties on counter-terrorism including United Nations Conventions, Instruments related to civil aviation, Maritime agreements, IAEA Conventions. This include but is not limited to-
- Convention on prevention and punishment of crimes against internationally protected persons (167 State parties),
- Convention against the Taking of Hostages,
- Convention for the Suppression of Terrorist Bombing (167 State parties),
- Convention against Terrorist Financing (167 State parties),
- Convention for the suppression of acts of Nuclear Terrorism (167 State parties),
- Convention on offenses and Certain other Acts committed on Board Aircraft (167 State parties),
- Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (167 State parties),
- Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (167 State parties),
- Convention on the Marking of Plastic Explosives for the Purpose of Detection (167 State parties)
- 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (167 State parties),
- Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime navigation (167 State parties),
- Protocol for the Suppression of Unlawful Acts against Fixed Platforms Located on the Continental Shelf (167 State parties),
- Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental shelf (167 State parties),
- Convention on the Physical Protection of Nuclear Material (167 State parties), and
- Amendment to the Convention on the Physical Protection of Nuclear Material (15 contracted states but not yet in force).
Common threads running through them all
First and foremost, they all provide for the criminalization of serious offenses and calls for International Cooperation in criminal matters & extradition. They also provide for universal suppression of such offenses by clarifying jurisdictional issues and international cooperation mechanisms that call upon the states to provide mutual legal assistance and extradition under the principle of ‘aut dedere aut judicare’.[9]
Domestic Legal Challenges
As far as the domestic legal challenges are concerned, the first and foremost is the acceptance of a treaty by legislative ratification or accession. In various countries all over the world including India, the US, and the UK, treaties are not part of the law unless incorporated in some way through legislative means.
And many times due to party politics and lack of numerical strength or political will, government in different states are unable to ratify important treaties and conventions on time and this reduces their effectiveness. The same goes for conventions on terrorism who remain ineffective in the absence of ratification by a substantial number of states.
Stratification and sub-stratification of government into various federal, central, provincial and local levels also pose a problem of ensuring that treaty obligations be implemented at all levels of Government.
The second problem is concerning those countries having a written constitution with Judicial Review. The difficulty here is that if the subject matter of the treaty convention and its constitutionality becomes a matter of judicial review, it is time-consuming and thus reduces the scope and effectiveness of the treaty.[10]
To give an analogy with the refugee convention, the involvement in judicial review in some countries like Australia and US has led the courts to a situation where they have interpreted the meaning of various phrases of the refugee convention wherein some of their decisions have appeared to give very broad and generous meanings to some of the expressions and to adopt interpretations which the government itself may not consider appropriate.[11]
The Same is true about conventions to combat terrorism wherein lots of factors such as Human Rights, Natural Justice, extradition, etc become a matter of intense contention once the matter becomes sub-judice. The current position in the US concerning the conflict between domestic/municipal and international law is former will prevail and takes precedence.
However, there are a few exceptions. For instance, in the US v Palestine Liberation Organisation 1988, there was a possible conflict between Treaty obligations and domestic legislation as the domestic legislation Anti-Terrorism Act 1987 provided for the closure of all Palestine Liberation Organisation offices in the US. US attorney perceived it to be including Palestine Mission to UN but his contentions were not listened to by the court on the pretext that it would breach the Headquarters Agreement between the US and UN.[12]
The other problem is with regard to the different rules of interpretation applicable to domestic laws and international treaties and conventions that are often drawn up in broad language, deal with events that may unfold in unpredictable ways in the future and are not easy to amend or rewrite.[13] According to Michael Duffy, some of the other practical issues that face government in giving effect to treaty obligations include but is not limited to-
- Interpretation of treaties by domestic courts;
- The problem of ensuring observance and compliance with treaties at the regional or provincial and state government level; and
- The ever-evolving nature of the interpretation of treaty obligations.
As far as India is concerned, Article 253 of the Indian Constitution vests power in the hand of the Parliament to make laws for implementing international treaties but Indian courts have had to grapple with diverse issues such as terrorism, arbitration, taxation, extradition matters, child custody, trade issues, environment issues, etc and a host of other related issues where there was a conflict of laws. In such cases, it has been precautious and generally given pretense to International law norms only when they are not in conflict with Municipal laws.[14]
Case-Specific Empirical Analysis
In this chapter, we shall do a case-specific empirical analysis of various legal issues that confront law enforcement officials while dealing with terror-related cases. We shall also analyze the intricacies of domestic laws of selected countries, particularly in the field of sharing of intelligence, and providing mutual legal assistance in investigation, arrest, extradition, and prosecution in selected terrorism-related cases.
In this section, we shall do a case-specific analysis of various legal issues that confront law enforcement officials in terrorism-related cases. We shall primarily discuss some Indian terror-related cases like the Mumbai attack of 1991, Mumbai terror attack of 26/11, Parliament attack 2001, Mecca and Ajmer attacks, and Air India Hijacking case, etc.
The Bombay Bomb Blasts 1993
Bombay (now Mumbai) Blasts of 1993 took place on March 12, 1993, killing hundreds of people in various iconic buildings of Mumbai. In the ensuing high-profile investigation, the police suspected the role of notorious gangsters Dawood Ibrahim and Tiger Memon, who had both moved to Dubai.
On November 4, 1993, Mumbai Police submitted a 9,104-page long charge-sheet to the special trial under the draconian Terrorist and Disruptive Activities Act (TADA), a widely reviled statute that departed fundamentally from common-law criminal trial jurisprudence according to Anuj Bhuwania.[15]
Out of the 189 accused named in the charge sheet, 44 including the alleged principal conspirators Dawood Ibrahim, Tiger Memon, and their family fled to other nations such as Pakistan and UAE.[16] Many cases regarding the blasts are still pending in courts at different stages.
The Terrorist and Disruptive Activities (Prevention) Act 1985 (repealed in September 2004) was enacted during the 1980s in response to the insurgency in Punjab. It explicitly defined a series of new, substantive terrorism-related offenses of general applicability, which could be prosecuted by state governments throughout the country without any central government designation that the area in which the offense took place was “terrorist affected.”[17]
S.4 of the Act made it a crime to commit any “disruptive activity,” defined as any act, speech, or conduct that, “through any other media or in any other manner whatsoever,” either (1) “questions, disrupts, or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India,” or (2) “is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union.”
Also, as opposed to the ordinary criminal law that prohibits confession made before police officials, voluntary confessions made to police officers could be admitted as substantive evidence under TADA as long as the officer’s rank was superintendent or higher and the confession was recorded in writing, audio, or video.
Despite being vested with such sweeping powers, law enforcement officials still grapple with several challenges. One of the biggest challenges probably is centered on how to use scarce police resources to fight relatively uncommon crimes, that have national and sometimes international implications, and that require intelligence that may be limited or altogether unavailable at the local and state levels.
Addressing these complex challenges requires a level of cooperation across federal, state, and local jurisdictions that have not been typical in the past. However, some optimism is provided by the fact that the strong connections to the community that produce the best results for policing, in general, may also be the same characteristics that are most useful in preventing terrorist attacks and responding to those that are carried out.[18]
Extradition of the accused has also been a major problem in this case. As mentioned earlier, scores of accused absconded to other nations in the immediate aftermath of the blasts and India could successfully extradite only a few. In the absence of an effective universal extradition policy, countries fall back on bilateral or multilateral extradition agreements even in serious cases of Terrorism.
For instance, in the 1993 Mumbai blasts case, India could extradite one of the accused ‘Abu Salem’ from Portugal but on a condition that he would not be hanged to death even though his conviction as a conspirator in the blasts had attracted him to the gallows.[19]
India could not extradite many other prime accused despite Interpol Red Corner notices pending against many of them since 1994 and extradition treaties with nations like the UK because of the tough laws there.[20] Nations must strive to make International extradition laws more uniform and friendly.
Human rights advocates/activists have been highly critical of the antiterrorism practices of the central and state governments since they purported to provide both the legal and symbolic authority for many of these rights violations writes Anil Kalhan. Critics often highlight the facial inconsistency of the many provisions of the anti-terror legislation with that of the human rights norms under International Law and the Indian constitution.[21]
Such claims are not devoid of considerable evidence that sweeping powers of many anti-terror legislations have been predominantly used not to prosecute and punish actual terrorists, but rather as a tool that enabled pervasive use of preventive detention and a variety of abuses by Police.[22]
AIR India plane Hijacking
On 23 June 1985, an Air India plane (Kanishka) disintegrated in midair en route from Montreal to London, over the Atlantic Ocean killing all 329 people on board (268 Canadian citizens, 27 British citizens, and 24 Indian citizens). The disintegration was due to the explosion from a bomb allegedly planted by Canadian Sikh Extremists.[23]
The incident is considered to be one of the deadliest aviation accidents in the history of Air India and also one of the deadliest acts of aviation terrorism along with the 9/11 attacks.
Quite strangely, only one person namely Inderjit Singh Reyat, a Canadian national and a member of the ISYF was finally convicted for the bombings after pleading guilty in 2003 to manslaughter and served fifteen years imprisonment.[24]
The investigation and prosecution lasted for over 20 years and cost over 130 Million Canadian Dollars. A commission constituted by the Canadian Governor General-in-Council in its report attributed negligence on part of the Canadian Government, Police, and Intelligence services.[25]
Issues relating to negotiating with terrorists
It is often argued that negotiating with terrorists will embolden them to engage in more such misadventures like kidnapping and hostage-takings to bring powerful governments to the negotiating table and then strike a hefty bargain in return.[26]
For instance, India when once negotiated with some extremists for the release of its home-minister Mufti Mohammed Syed’s daughter, within one year it had to negotiate again with similar groups who had now hijacked a whole plane with all passengers within and in return, India had to release 3 of its most hated enemies.
Keeping such pretexts in mind states all over the world are wary of negotiating with terrorist outfits. However, there have been instances where even the mightiest of governments have been forced to engage in negotiating and bargaining with terrorists.
Even the United States that follows the policy of not negotiating with terrorists under any circumstances recently negotiated with the Taliban on withdrawal of troops from Afghanistan. It had fought a prolonged war on terror after dislodging the Taliban from power in Afghanistan in 2003.[27]
India too had to negotiate with extremist outfits on several occasions including during the two infamous incidents of the plane Hijacking and the kidnapping of its Home Minister’s daughter.
Emboldened by their success during the kidnapping of the home minister’s daughter in 1998 and the subsequent negotiations, on 24 December 1999, an Indian Airlines Flight 814 en route from Kathmandu, Nepal to Delhi, India was hijacked by Harkat-ul-Mujahideen militants and flown to several locations (Amritsar, Lahore, and Dubai) before finally landing in Kandahar, Afghanistan allegedly with support and active assistance from ISI of Pakistan-claims India.[28]
The hostage crisis lasted for seven days and ended only after India agreed to release the three most wanted militants namely, Mushtaq Ahmed Zargar, Ahmed Omar Saeed Sheikh, and Maulana Masood Azhar.[29]
Interestingly, the Taliban cooperated and had given the hijackers only ten hours to leave Afghanistan and the five hijackers departed with a Taliban hostage to ensure their safe passage and were reported to have left Afghanistan immediately.[30]
Many times governments have no choice but to negotiate for the well-being of their citizens. For instance, when ISIS took several American hostages in Iraq and Syria and the US refused to negotiate, the result was the gruesome beheading of many of its citizens held captive by ISIS.[31] But such incidents are indeed a big blow to the global war on terror.[32]
Also, if Pakistan’s ISI was involved in Indian terror cases and there is substantial proof with India of its complicity, it would be a violation by Pakistan of its various international obligations to combat terrorism. This issue has been explained in some detail in the subsequent section on the Mumbai attack on 26/11.
Parliament Attack 2001
This was an attack on the Indian Parliament complex in New Delhi, India on 13 December 2001 by 5 militants allegedly affiliated to the Lashkar-e-Taiba (LeT) and Jaish-e-Mohammad (JeM). Though all militants were neutralized the incident led to increased tensions between India and Pakistan, resulting in the infamous 2001-02 Indo-Pak military standoff.
After extensive investigations, the investigating agencies filed the charge sheet under Section 173 of Criminal Procedure Code, 1973 (India) against the accused persons, and charges were also framed under various sections of the Indian Penal Code (IPC), the Prevention of Terrorism Act, 2002 (POTA), and the Explosive Substances Act by the designated sessions Court and all of the accused were handed out death sentences.[33]
But on appeal, many of them were acquitted especially S. A. R. Geelani who was presented by the police as the mastermind of the entire attack. Geelani’s acquittal is regarded to have blown a gaping hole in the prosecution’s version of the parliament attack.[34]
Also, the fact that terrorists could reach the vicinity of Parliament is considered to be a massive security breach and failure on part of Indian intelligence and law enforcement agencies even though they were halted and neutralized before they could enter the Parliament.
Here, Indian agencies can learn from the US where due to changes in terror policing policies, overall terrorist attacks on US soil have drastically declined during the past one and a half-decade.
This has been due to the paradigm shifts in the strategies used by federal law enforcement against terrorism. Many have argued that before 9/11 the FBI was primarily a reactive agency in which preventive intelligence gathering was deemphasized. After 9/11, policymakers and the public demanded a more proactive, intelligence-driven stance on the part of federal law enforcement.[35]
Mecca Masjid Blast and Ajmer Shrine Bombings 2007
Mecca Masjid blasts occurred on 18 May 2007 in which 16 people were killed and scores were injured. Ajmer Dargah blasts happened on 11 October 2007, when bombs placed in tiffin boxes exploded in the courtyard of revered Sufi saint Moinuddin Chishti in Ajmer, Rajasthan, killing 2 people instantly and injuring several others. Blasts were suspected to have been carried out by Pakistan-based Lashkar-e-Taiba.
It was initially believed that the attack was part of a conflict between extremists against the moderate Sufi-Muslim traditions popular in the subcontinent. Convictions happened almost a decade later in 2017 when a special National Investigation Agency (NIA) court in Jaipur convicted Sunil Joshi (now dead), Devendra Gupta, and Bhavesh Patel and acquitted 6 others including Swami Aseemanand.[36]
Mumbai Terror Attack 2008
On November 26, 2008, a terrorist attack of extraordinary scale and duration occurred in Mumbai, India’s financial capital and commercial hub. The attack lasted for over 3 days at multiple Mumbai tourist and cultural landmarks, in which more than 150 people were killed and hundreds injured.
It quickly was determined through the ensuing investigations that the attackers were members of Lashkar-e-Taiba (LeT)-the one responsible for the parliament attack a few years earlier.
Investigation Intelligence and Extradition Issues
It has been claimed that there was hardly any intelligence on the attacks for the first two days. Strange it may sound but even US agencies were watching news channels like CNN to get information to relay. From a US policy perspective, relying totally on news media meant that senior officials initially were chasing, not shaping, the emerging public narrative on the attacks and US vulnerabilities to similar attacks writes Polly Nayak and Michael Krepon.[37]
The initial police response to the attacks in Mumbai was chaotic. The Maharashtra police were untrained to cope with such a crisis and therefore they were out-gunned easily. Their service “had bought the wrong holsters for their guns,” recalled a US diplomat. State authorities subsequently requested theNational Security Guard (NSG) commandos.
The commandos, who were based near Palam Airport in New Delhi and were under the authority of the national government home ministry, took nine and one-half hours to reach the Taj and Oberoi Hotels in Mumbai.
The reasons ranged from difficulty in securing an aircraft to the unavailability of floor plans for the two hotels once an NSG team reached the area.[38]
The investigations sooner or later were, however, able to link the attacks to Lashkar-e-Taiba militants, a group with a long record of terror assaults and alleged ties to Pakistan’s military and intelligence establishments.
On October 9, 2009, a US citizen David Headley was arrested for plotting to attack Jyllands-Posten (infamous for publishing caricatures of Prophet Muhammad s.) office in Denmark. During preliminary investigations, his role in the Mumbai Attack was also discovered.
Eventually, he was charged by the FBI of conspiring to bomb targets in the Mumbai attacks and providing material and logistics support to LeT.[39] Based on this accusation, India’s National Investigation Agency (NIA) too registered a case against Headley and his accomplices for allegedly plotting the Mumbai attacks.
As part of the cooperation and partnership between the US and India in the fight against international terrorism, Indian law enforcement officials led by NIA were provided direct access to interview David Coleman Headley.[40]
After questioning Headley in Chicago for a week, the NIA requested a Delhi court to issue non-bailable warrants to arrest Headley and other conspirators.
As part of the Indo-US cooperation to fight against international terrorism, US authorities shared significant information about the case and the US promised that India would have full access to question Headley, even though the request of extradition was ruled out at the outset due to Headley’s plea agreement with US Attorney Patrick Fitzgerald.[41]
Headley’s admissions, e.g., that he made video recordings of terrorism targets for the LeT, had corroborated other evidence in the trial of Ajmal Amir Kasab in Mumbai. Despite committing crimes of such immense proportion, Headley had to be pardoned by Indian courts reportedly in exchange for information on his involvement and on others accused of similar charges.[42]
A classified Indian report, based on Headley’s interrogation by Indian investigators in Chicago, concludes that some of Headley’s scouting trips to Mumbai were financed and planned by the ISI-an allegation categorically denied by Pakistani authorities.[43]
Difficulties in establishing state sponsored terrorism
One should note that investigations by the Indian and US investigative agencies in connection with 26/11 have indicated some role played by certain officials belonging to Pakistan’s military and intelligence establishments.
Therefore it becomes immensely important to assess issues of State Responsibility in such cases so that both, India and Pakistan’s legal rights and responsibilities on the international stage can be clarified.[44]
One should also remember that Pakistan initially denied that the attackers were Pakistani nationals including Ajmal Kasab who was caught alive. It also denied categorically that the attack was planned in Pakistan.
It was only much later after they received a dossier containing interrogations, weapons, and call records of conversations during the attacks coupled with international pressure, Pakistan arrested scores of LeT (now JUD) activists.
India also had asked Pakistan to hand over Mumbai Underworld Don Dawood Ibrahim, Lashkar-e-Taiba chief Hafiz Muhammad Saeed and Jaish-e-Mohammed leader Maulana Masood Azhar for their suspected involvement in the Mumbai terror attack but none of these extraditions could materialize.
Article 1 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DASR) adopted in 2001 by the International Law Commission is customary in nature and sets out the foundation for the law on State responsibility and provides that every internationally wrongful act of a State entails the international responsibility of that State.[45]
If we look at the impact of the 26/11 attack, it essentially caused injury to India wherein Pakistani establishment was allegedly involved at various stages as has been claimed by India. If this is true and India has substantial evidence to corroborate its claim of nexus between Pakistani establishment and terrorists, then it would have the best writ to bring an international claim against it writes Rishi Gulati. And it will be more so if an act like this attributable to Pakistan is not in conformity with the primary rules of International law operational between both of these countries.
Also, both India and Pak are parties to several regional, bilateral, and multilateral treaties and international agreements and conventions to tackle the problem of terrorism. In that regard, Rishi Gulati in his paper on the 26/11 attack writes that the most relevant is the obligations assumed by the countries of the South Asian Association for Regional Cooperation (SAARC) States (that includes India and Pak) pursuant to the SAARC Regional Convention on Suppression of Terrorism (1987 Convention) which came into force as early as 1988.
The SAARC States agreed that ‘each state should refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts. They also recognized the danger posed by the spread of terrorism and its harmful effect on peace, cooperation, friendship, and good neighborly relations and which could also jeopardize the sovereignty and territorial integrity of SAARC nations.
Rishi Gulati writes further that one key objective of the 1987 Convention was to create legally binding obligations to provide for each member State, in its relation with every other SAARC State to refrain from inter alia organizing or assisting in the commission of terroristic acts in another Member State’s territory, or ‘acquiescing in organized activities within its territory directed towards the commission of ‘terroristic’ acts.
And it’s quite evident that the 26/11 attack as such constitutes the type of conduct that the primary rules of international law enshrined in the treaty relationship between India and Pakistan seek to prohibit and regulate.
Therefore, subject to attribution and other evidentiary factors, 26/11 is inherently capable of constituting a basis to trigger the process to invoke Pakistan’s responsibility pursuant to various obligations under the SAARC regimes given that the planning for those attacks took place in Pakistan.
Rishi Gulati in his research paper ‘The 26/11 Mumbai Terrorist Attacks Assessing Pakistan’s Responsibility in International Law’ highlights all these problems concerning the regulation of terrorism under international law in the context of State Responsibility, and shows that much work needs to be done to clarify and consolidate those rules.[46]
Kasab trial and legal issues therein
One should remember that Ajmal Amir Kasab was the lone militant captured alive during the operations. Mumbai Police announced that he was a Pakistani national based on his confession and other evidence. But Pakistan initially not only denied that he was its national but also attempted to erase evidence that there was a Lashkar-e-Taiba office in Deepalpur.
It was only 2 months later Pakistan’s National Security Advisor Mahmud Ali Durrani unwittingly admitted to Kasab being a Pakistani citizen while speaking to the CNN-IBN news channel. He was sacked later sacked by the government.
Also, several Indian lawyers refused to represent Kasab citing ethical concerns. A resolution was passed unanimously by the Bombay Metropolitan Magistrate Court’s Bar Association, which has more than 1,000 members, saying that none of its members would defend any of the accused of the terror attacks.
When other bar associations passed similar resolutions, the then Chief Justice of India KG Balakrishnan had to intervene to ensure legal assistance to Kasab for a fair trial. Kasab had also written to Pakistan High Commission seeking legal assistance but no action was taken by Pakistan though officials admitted of having received the letter.
One should note that Article 10 of the United Nations Universal Declaration of Human Rights provides that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and any criminal charge against him. Indian constitution also casts a positive obligation on the state to provide legal assistance to all.
Legal issues confronting the enforcement officials
As discussed above, Kasab was the only person caught alive during the attack as others were killed during the encounter. Kasab was charged with 86 offenses under various enactments.[47] It should be noted at this point that Kasab was not the only culprit for this gruesome act. The real culprits ie many of those who planned and masterminded the attack are still roaming free in Pakistan and elsewhere.
Furthermore, 35 wanted accused were not able to be tried as they are still absconding in Pakistan and other nations, and to date, Indian enforcement agencies have not been able to extradite them and take the case to the logical conclusion.[48]
Rishi Gulati writes that several of the most wanted accused who played various roles, including brainwashing poor and uneducated young Pakistani men like Kasab, and providing them training have still not been held accountable for lack of coordination and cooperation and presence of hostility and suspicion between India and Pakistan.
This is unfortunate given the gruesomeness and scope of the terror attack which killed not only Indians but persons of several nationalities including US and European citizens.
What is however striking about the case against Kasab and other wanted accused is the apparent absence of any argumentation about the character of LeT generally, being the organization that planned and trained Kasab. It will be seen in Part III that it is common knowledge that LeT is closely linked with the Pakistani Army and the ISI.
Had the aforementioned links constituted another factor in the Kasab case, the list of wanted accused might have significantly expanded and included Pakistani governmental officials. One explanation for such absence could be that as the case was essentially about Kasab’s guilt, wider issues of criminal liability for 26/11 were considered to be outside the scope of the trial.[49]
Internally, there was a need to tighten laws and build institutions against terrorism. The Unlawful Activities (Prevention) Act was passed unanimously in December 2008, the National Investigation Agency was established, and a national counterterrorism center was proposed, which is still to be created.
Other steps to ensure coordinated use of intelligence and counterterrorism actions were also taken.[50] If the Indian courts had been presented with evidence that LeT was not acting alone, then the charge of ‘waging war’, if established, would have a much deeper meaning than the Indian courts presently consider is the case, and 26/11 could potentially be characterized as a crime of aggression, over which the International Criminal Court will exercise jurisdiction from 2017.[51]
Indian Issues: Death penalty and condonation by President
In India, as far as the death penalty is concerned, it has been by and large reserved for the rarest of rare crimes as was observed in the landmark Bachhan Singh case. And for over 2 decades if we leave aside the recent hangings in the Nirbhaya gang rape case as an exception, the death sentence has been executed only in case of an act of terrorism that caused irreparable damage to innocent lives and property.
However, there have been cases where death sentences have not been carried out due to various legal issues and conflicting international obligations as was the case in the Abu Salem case as discussed above in the 1993 Bombay blast section. Abu Salem was extradited from Portugal on the condition that he would not be given the death sentence in India.
Portugal put that condition due to its obligation arising from the European Convention on Human Rights that prohibits death sentences in any form. David Headley-another plotter of the 26/11 attacks has had to be pardoned altogether after he successfully and cleverly entered into a plea-bargaining deal with the US attorney before India could extradite him as discussed above.
Many high-profile terror cases from Punjab insurgency and assassination of Chief Ministers and Prime Ministers also got Presidential mercy due to their sensitive political natures and implications. This differing treatment meted out to terrorists based on their religious affiliations, political and community backing is certainly not an ideal benchmark for equity or justice.
Domestic Laws on sharing of Intelligence
‘Police’ and ‘Public Order are State subjects under the Seventh Schedule to the Constitution of India and therefore, it is the primary duty of the State Governments to prevent, detect, register, and investigate crime and prosecute the criminals.
Central Government, however, supplements the efforts of the State Governments by providing them financial assistance for the modernization of their Police Forces in terms of weaponry, communication, equipment, mobility, training, and other infrastructure under the Scheme of Modernization of State Police Forces.
Further, intelligence inputs are regularly shared by the Central Security and Intelligence Agencies with the State Law Enforcement Agencies to prevent crime and law and order-related incidents.[52]
Furthermore, under various provisions of the Unlawful Activities (Prevention) Act, 1967, The Indian Evidence Act, 1872, Indian Penal Code, 1860, Unnatural Offences, National Investigation Agency Act, 2008, etc each law enforcement agency at various levels of central and state governments are required to cooperate in such matters by sharing inputs and intelligence they have received to prevent crimes and terror attacks.
Some new laws have also been proposed in response to increasing concerns over the unregulated and often haphazard manner in which the nation’s agencies such as the Research & Analysis Wing (RAW), the Intelligence Bureau (IB), and the National Technical Research Organisation (NTRO) function.
The Bill creates a legislative and regulatory framework for the functioning and coordination of the Intelligence Bureau, the Research and Analysis Wing, and the National Technical Research Organization.[53]
International Law and the War on Terrorism
In this chapter, we shall examine if there is an inherent contradiction between the international anti-terrorism laws and human rights laws. In this regard, we shall also discuss how excessive counter-measures by states, which violate human rights, hinder international cooperation in combating terrorism viz. detention without access to justice, indiscriminate search, seizure, arbitrary arrest, adoption of torturous interrogation techniques, intrusive methods of intelligence gathering, interception of communication, and freezing of assets, etc often results in the violation of Human Rights of the accused.
International anti-terrorism laws and Human Rights laws
Within a few days of the 9/11 terror attacks, ie on 28 September 2001, the UN Security Council adopted Resolution 1373 under Chapter VII of the UN Charter, calling upon state parties to implement more effective counter-terrorism measures at the national level and to increase international cooperation in the struggle against terrorism.
The Resolution created the Counter-Terrorism Committee (CTC) to monitor actions on this issue and to receive reports from states on measures taken. Following the adoption of Resolution 1373, a substantial number of states have adopted plans for further measures to combat terrorism.
After 11 September 2001, the UN also extended its sanctions framework against the Taliban to all groups and individuals associated with Al Qaida. The UN list requires the freezing of assets and resources connected to the designated groups and individuals. States are obliged to refrain from “providing any form of support, active or passive” to “entities or persons involved in terrorist acts.”[54]
However, at the same time, Security Council Resolution 1456, adopted in 2003, called on the CTC to consider human rights in its work; yet the Committee has ignored the impact on human rights of its activities concerning repressive governments that justify human rights violations regarding antiterrorism measures.[55]
Another issue of concern is the way entities or individuals are added to the terrorist list maintained by the Security Council. The absence of review or appeal for those listed raises serious accountability issues and possibly violates fundamental human rights norms and Conventions.
The attacks on trains in Madrid in 2004 and the London transport system in 2005 reminded world leaders that terrorism poses a serious threat to the security and the lives and freedom of citizens worldwide.
In Resolutions 1530 (2004) and 1611 (2005), the Security Council condemned the attacks and expressed its reinforced determination to combat all forms of terrorism, in accordance with its responsibilities under the UN Charter.
Despite a plethora of instruments addressing terrorism, it has been difficult to reach an international consensus on a definition of terrorism. A clear definition is necessary as without it oppressive governments violate human rights with reference to security; opponents of government policies may be categorized as terrorists in the same way as, for example, some states in the 1970s labeled perceived ‘dissidents’ as communists.[56]
Laws criminalizing offenses such as “encouragement of terrorism” and “extremist activities” as well as offenses of “praising”, “glorifying”, or “justifying” terrorism have proliferated in Council of Europe member states. The apology of terrorism is widespread, especially online, and must be combatted.
But counter-terrorism legislation may become a dangerous tool for freedom of expression when it is used to limit or silence legitimate reporting or criticism.
It can also be problematic when the offenses are not clearly defined or too wide and may lead to unnecessary or disproportionate restrictions to the right to freedom of expression.[57]
UN Secretary-General Kofi Annan once said, ‘Terrorism strikes at the very heart of everything the United Nations stands for. It is a global threat to democracy, the rule of law, human rights and stability, and therefore requires a global response’. The statement wittingly or unwittingly reveals the prioritization between Human Rights and global response to the menace of terrorism.
UN bodies and NGOs have documented extensive human rights abuses perpetrated under the pretext of combating terrorism, inter alia, torture, inhuman and degrading treatment, enforced disappearance, arbitrary detention, racial profiling, breaches of privacy rights, and violations of due process rights and effective remedies.
Under the treaty-based system, the Human Rights Committee has expressed concerns regarding counter-terrorism measures taken by states and has reaffirmed in its concluding observations that state parties must ensure that the measures undertaken in order to implement Security Council Resolution 1373 (2001) conform fully with the ICCPR.
Moreover, the Committee has exchanged briefings with the Counter-Terrorism Committee on their working methods and areas of concern. The Committee has furthermore decided in individual communications concerning human rights violations perpetrated in the context of the ‘war on terror.
For instance, in Yasoda Sharma v Nepal, the Committee found a violation of the prohibition of torture and cruel, inhuman, and degrading treatment, the right not to be subject to arbitrary detention, the right to humane treatment while in detention, and the right to an effective remedy due to the enforced disappearance of Surya Prasad Sharma, a member of a political party deemed by the authorities to be a terrorist organization.[58]
In Sayadi and Vinck v Belgium, the Committee held that Belgium had violated the rights to freedom of movement and to the privacy of the applicants who were subjected to restrictive measures following their insertion in the UN Al-Qaeda and Taliban Terrorism Lists.[59]
In Maksudov et al. v Kyrgyzstan, the Committee ruled that Kyrgyzstan was responsible for the arbitrary detention and transfer of four Uzbek citizens to Uzbekistan, where they faced charges of terrorism offenses carrying a possible death sentence, in breach of Kyrgyzstan’s obligations under the ICCPR.[60]
The Committee held that the applicants faced a substantial risk of being subjected to torture or other ill-treatment, that there had been a violation of the right to life and that they had been denied the right to a remedy.
The CERD Committee monitors, inter alia, the potentially discriminatory effects of counterterrorism legislation and the CAT Committee consistently reminds states of the non-derogable nature of the prohibition of torture, reiterating that no exceptional circumstances whatsoever may be invoked as a justification of torture.[61]
It established core principles in Agiza v Sweden where it acknowledged that ‘measures taken to fight terrorism, including denial of safe haven, deriving from binding Security Council Resolutions are both legitimate and important. Their execution, however, must be carried out with full respect to the applicable rules of international law, including the provisions of the Convention, as affirmed repeatedly by the Security Council.’[62]
The European Court has dealt with several cases concerning counter-terrorism, e.g. the treatment of IRA terror suspects in the UK, Chechens in Russia, and members of the PKK in Turkey.
Recent cases brought in the context of the ‘war on terror’ include A. and Others v. The United Kingdom where the Grand Chamber ruled that the detention of 11 terrorist suspects under the UK Anti-terrorism, Crime, and Security Act was a violation of the right to liberty and security, the right to a judicial review of the detention and the right to compensation.[63]
The Court also found that the derogation of the United Kingdom from ensuring the right to liberty and security had been disproportionate as the detention measures were aimed only at non-nationals.
Saadi v Italy was concerned with the decision of the authorities to deport a Tunisian national lawfully residing in Italy, to Tunisia. Saadi had been convicted in Tunisia of terrorism-related offenses sentenced to 20 years of imprisonment. The Court firmly reasserted the absolute nature of the prohibition of torture and non-refoulement also when the individual might pose a threat to the hosting state.
In Ben Khemais v Italy, the Court held that the deportation of the applicant to Tunisia violated the prohibition of torture and ill-treatment and was unlawful, in defiance of the Court’s interim measures.
A Tunisian military court had sentenced the applicant in absentia to ten years in prison for membership of a terrorist group. The Court rejected the reliance on Tunisian diplomatic assurances by the Italian government (see also, e.g., Ismoilov and Others v Russia).[64]
The initial widespread support for far-reaching counter-terror measures has diminished markedly in many countries as grave human rights violations, such as extrajudicial renditions, unlawful and indefinite detention, and torture, committed in the name of security, are coming to light.
The general public, as well as the courts in Europe, the United States, and other regions, are increasingly pressing governments to respect human rights in combating terrorism. These developments give rise to the hope that human rights will be duly respected in future efforts to combat terrorism.
Excessive counter Measures by States
Though India is a party to several international conventions, treaties, and agreements on Human Rights and is also bound by legal obligations that protect fundamental rights under its own Constitution, there have been occasions when it had to deal strictly and harshly with extremists and terrorists through various draconian laws like POTA, TADA, and UAPA, etc that are often devoid of the due process requirement which is otherwise an invaluable feature of the criminal justice system.
India is also a party and signatory to scores of international instruments protecting individuals from arbitrary or improper treatment under antiterrorism and other security laws, including the International Covenant on Civil and Political Rights, the International Convention on the Prevention and Punishment of the Crime of Genocide, and the International Convention on the Elimination of All Forms of Racial Discrimination, along with the 4 Geneva Conventions.[64]
In this regard, UDHR provides for a fair and public hearing by an independent and impartial tribunal in its provisions as discussed in the above sections. The ICCPR also guarantees the right of an arrested or detained individual to have a court promptly decide the lawfulness of detention and to be released if the detention is not lawful. It also explicitly provides that the rights to life, freedom from torture or cruel, inhuman, or degrading treatment, freedom from prosecution under retroactive legislation, and freedom of thought, etc are non-derogable.[65]
Article 51 of the Indian constitution provides that the government shall endeavor to foster respect for international law and the Supreme Court on various had ruled that constitutional and statutory provisions should be interpreted in light of India’s international law obligations.[66]
Also, the National Human Rights Commission or the NHRC established in 1993 is empowered to receive and investigate individual complaints of human rights violations, initiate such investigations on its own, monitor and make non-binding recommendations to the government on domestic implementation of international human rights norms, and promote public awareness of human.[67] The only drawback, however, is that NHRC recommendations are non-binding on government.
Despite all of those tall claims of respect for human rights laws and fair hearing in accordance with the process of natural justice, India’s legal regime is also full of certain contradictions, immense derogation from human rights thanks to many of its draconian laws.
One should note that within weeks after the Constitution went into force, Parliament enacted the Preventive Detention Act of 1950, which authorized detention for up to 12 months by both the central and state governments if necessary to prevent an individual from acting in a manner prejudicial to the defense or security of India.[68]
In the early 1980s, India began to face a crisis of politicized violence that prompted the government to enact sweeping criminal anti-terrorism laws. Since then, these laws have been enacted and repealed in a cyclical pattern that replicates the pattern established by the British and maintained after independence for emergency and preventive detention laws.
The major anti-terrorism laws that India has enacted since 1980-the Terrorist and Disruptive Activities (Prevention) Act, the Prevention of Terrorism Act, and the Unlawful Activities (Prevention) Amendment Act-all have raised human rights concerns under the Indian Constitution and international human rights treaties such as the ICCPR.
To be sure, public debate over these laws has been vigorous and ongoing, and in part as a result, each subsequent law has incrementally improved upon its immediate predecessor. Nevertheless, the human rights concerns raised by these laws have been significant, and a number of them like UAPA and AFSPA exist even today.[69]
Conclusion: Balancing War on Terror and Human Rights
Most countries enacted anti-terror statutes to combat the growing menace of International terrorism in the aftermath of the 9/11 attacks on the USA. They often lack mechanisms to give due regard to Human Rights and fair trials even if they are not fully realized in practice.
It is so because the UNSC Resolution 1373 that was passed by the UN Security Council in the aftermath of the 9/11 terror attacks does not explicitly cast any positive obligation on states to pay heed to human rights in combating terrorism.
UN Resolution 1373 requires states to undertake measures to combat terrorism. Critiques have pointed out it neither defines “terrorism” nor “terrorist acts,” and thus leaving each state to define those terms for themselves. It does not affirmatively refer to any international human rights, humanitarian, or refugee law obligations to be taken into account by states during the implementation of anti-terrorism requirements.
However, this issue has been rectified by subsequent resolutions that have reminded states to ensure that anti-terrorism measures comply with international human rights, refugee, and humanitarian laws.
Nonetheless, when responding to terrorism, democratic governments must fully protect human rights to advance both the rule of law and long-term security itself, since violations of human rights often plant the seeds for future acts of terrorist violence as has been rightly said by Anil Kalhan in his research paper. These are their obligations arising from other conventions on human rights and civil and political liberties.
They must stick a rightful and justiciable balance between issues of national securities, anti-terror laws, and the consideration for human rights of all.
As far as India is concerned, it should not forget its claims of a rich legacy of non-violence and historic record of respect and regard for human rights since the time of Buddha to Mahatma Gandhi and who have inspired the foundational values of modern India.
We must strive to stick to these values at all costs and at all times except in strenuous circumstances.
Note: This post is an abridged version of a purely academic research paper written for academic purposes.
Suggested Reading: Public International Law Notes