Analysis of Terrorist Attacks in International Law - Research Paper Example

Terrorist Attacks of International Law Even though terrorist attacks of various shapes and sizes have been going on in almost all parts of the world for quite a long time now, they have never reached the enormous dimension of the ongoing fundamentalist Islamic terrorism of today. Barring the Israeli and Palestinian attacks, hardly any States were attacked till recently at a massive scale. It is important for every State to protect its territory, buildings, property and more importantly, its citizens. So, it is important to know the self-defence and legal options that the States possess who suffer such a terrorist attack. Article 51 of UN Charter provides the right to self-defence whenever there is an attack on the State and thus, despite terrorism being of very recent origin, it cannot be presumed that the States do not have any self-defence at all against an attack. Hague Convention considers the unlawful seizure of any aircraft, an international criminal offence and even the accomplices of the hijackers are charged with the same offence and even the states that get connected to the offence are asked to abide with the international law of hijacking. “The Convention requires each contracting state to take such measures as may be necessary to establish its jurisdiction over the offense when the offense is committed on board an aircraft registered in that state, or when the aircraft lands in that state with the offender on board, or when the alleged offender is present in its territory and it does not extradite him to one of the other states just mentioned” American society of International Law.1” The use of the hijacked aircraft as lethal weapons, resulting in the deaths of hundreds if not thousands of persons, may be a crime against humanity under international law.  The Statute of the International Criminal Court, which is in the process of obtaining the necessary ratifications to enter into force, defines a crime against humanity as any of several listed acts "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."  The acts include murder and "other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." When the attack happened in 2001 on World Trade Centre, the International Criminal Court was not yet functioning. Still the crimes were held as crimes against humanity that would be subject to all domestic criminal courts of the world and eventually they came under the jurisdiction of International Criminal Court. Under the jurisdiction of international law, not only any country could try the terrorists for the terrorist acts within the borders of that particular country irrespective of their nationality and citizenship according to the statutes that are in force, but also the terrorists could be sent to another country for trial if that country’s grievance against such terrorists is more severe. All the countries can exercise the universal jurisdiction for the crimes committed against their State. According to the universal law, any country can bring such terrorist offences under its own law and prosecute the offenders if ‘they are within its custody’. International law issues can also crop up if any country is obviously harbouring terrorists who have already committed acts of terrorism anywhere in the world. Military action against such a country is definitely not advised, but the country could be the target of many other international actions like sanctions, trade embargos etc. If there is an extradition treaty between the two countries, it should be honoured immediately and not doing so, can earn the status of rogue nation to the un-obliging country. There is a slight recognition of the armed approach too, as article 51 of the UN Charter says, “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.23" This happens because no country can claim the sovereign rights if it knowingly gives protection to people who are proved to be guilty of terrorist activities in another country. Netanyahu said: “The protection of sovereignty cannot be claimed by any Government when it makes available such facilities, especially against the State that must protect itself4”. Of course Security Council had rejected this claim and had condemned the Israeli action, because the air raid was a “threat to peace and security in the Mediterranean region”. It is not right to presume that international law prohibits the countries from capturing the terrorists from other countries, or who commit horrendous acts of terrorism and go to another country and get sheltered there. It is also wrong to presume that if the country does not have a fully recognised status, terrorists can use that drawback in whichever way they like and use it as a haven for terrorist training. International law does not give any exemption to any country, whether member or not, whether recognised or not, to harbour, encourage and shelter known and proven terrorists. They can be captured in international waters or airspace and countries will be at fault if they harbour them. Domestic and international laws are changing rapidly to accommodate self defence against terrorists and terrorist attacks. Armed attacks, under which the present terrorist attacks are counted, immediately create a victim state and this gives the provision of acting in self-defence against either the terrorists or the terrorist state. As a state who has suffered a terrorist attack, it becomes its right and responsibility to save itself and its citizens from further such attacks. “The remaining limitations on the post-9/11 right of self-defence against terrorism are derived from the principles of necessity and proportionality. These dictate the types of targets and the degree of force that a victim state is permitted to use in self-defence.5” But this does not mean that aggression against another State is approved by the International Law. Article 2(4) of the Charter of the United Nations says: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations6”. This does not say much about the private persons, groups, guerrilla outfits, revolutionaries and religious bigots. After seeing the horrifying aggressions and loss during the Second World War, to be followed by the Cold War, when genocides, aggressions, revolutions, overt and covert both were encouraged by both the super powers of the day, United Nations created a commission to create a proper definition for aggression in the hope of bringing it under the international law. But only in 1974, Resolution 3314 could be adopted by the General Assembly. It clearly listed all the acts that could come under the heading of aggression, including sending of armed bands, groups, mercenaries, carrying out attacks in small and big way on another country. It is an ironical fact that the September 11 attack was not considered as the attack by Afghanistan or even Taliban. Initially, the world accepted that the attack was from a fanatical group led by Osama Bin Laden and Afghanistan was not reckoned as a terrorist country. Still the fact remains that coherence about terrorism and self defence of the states is lacking in the international sphere. Despite numerous efforts since the 1920s, the international community has failed to define or criminalize 'terrorism' in international law. So the States fall back again and again on the Article 51, as the lone rescuer. “The fact that terrorist attacks qualify as armed attacks means that they are subject to the full application of article 51: no more and no less.7” Nevertheless, the International Court of Justice pointed out that Article 51 ‘does not contain any specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law8’. It had always been a legal grievance that the definition of the word terrorism is loaded with political meaning and has no connection with the legal perspective. According to scholars of international law, terrorism lacks legal meaning and a legal definition. Terrorism is grouped as individual and state terrorisms. The ongoing Muslim terrorism is mainly individual terrorism and it is difficult to find a state which is actually and fully sponsoring it. But there could be terrorism of a different kind. There are terrorist acts conducted within the country by the State itself on its own citizens and even this comes under the purview of terrorism. “While individual terrorism is usually anti-State, and, therefore, subversive, the purpose of State terrorism is to enforce the authority and power of the State.9” So, while covering the ground, even such State sponsored terrorism too has to be taken into account. Jurisdictions over crimes of terrorism are rather difficult to define because the entire paradigm of terrorism is caught between politics and international relations, and to some extent, trade and economic patterns. Hence the risk involved and the crime itself is managed by the political leaders and national statesman and very little of it comes actually to the International Court of Justice or any other domestic Court of Law. “The States that are politically concerned (target State(s) and sponsoring State(s) are not likely to cooperate with the basis of the aut dedere aut judicare principle may be possible in theory but problematic in practice. In addition, there is the problem of the immunities that may be enjoyed by certain defendants suspected of terrorist acts.10” Still, the United Nations completely disapprove all kinds of aggressions in spite of terrorist acts. The United Nations General Assembly Resolution 42/22 (1988) says: “Convinced of the need of the effective universal application of the principle of refraining from the threat or use of force in international relations and of the importance of the role of the United Nations in this regard.11” A state, while acting in self defence and self help, it is necessary to know that it is not infringing the legal rights of another state. So, if use of force is denied to the state, the right of self-defence is rather mutilated and is available only in the form of a threat of force (this too could be considered illegal by international law), reprisals, sanctions etc. Interventions could be conducted under very serious circumstances; but again, they will be against the law12. Definitely the territorial integrity serves as one of the most important rights of self defence. But this too is argued that ‘it was never meant to acknowledge an absolute right to inviolability.13’ There is another right which is the so-called Right of Hot Pursuit under which in May 1836, US forces under General Gaines invaded Mexican territory in order to pursue marauding Indians, who had infiltrated into US and committed many crimes and were escaping to Mexico. This was justified as self-defence by US; but it is very difficult to condone such acts of aggression and the international law, once again, disapproves it. . Right of political independence provides a partial right of self defence. “The measures of self-defence which may be permissible are, of course, subject to the conditions governing the right of self-defence generally, and of particular relevance here is the condition of proportionality; there must be a proportionate relationship between the delict and the action in self-defence.14” Davida Kellog15 says that the current terrorism could be called genocide. “Terrorism directed at particular nationalities, religious communities, or ethnic groups is outright genocide.” Article 85 of Protocol 1, of Geneva Convention opines that the terror warfare is “Making the civil­ian population or individual civilians the object of attack [and] the perfidious use . . . of the distinctive emblem of the Red Cross [and so on] or of other protective signs . . . when committed wilfully . . . shall be regarded as grave breaches.” This is very important while applying the International Law to terrorism trials, because Article 85 also states that “grave breaches of these instruments shall be regarded as war crimes.” International community has to protect its citizens against the threats of terrorism and this has become the foremost responsibility of almost all the countries, except perhaps China, where we hardly see any terrorism growth. Countries like India are suffering on a highly regular basis. It is important to know the extent of self defence that the international law provides to all the countries. “International law, particularly human rights law, humanitarian law, and refugee law provides that framework. These three branches of law are particularly tailored to address the rights of individuals during difficult times such as a public emergency, challenges to national security, and periods of violent conflict.16” Article 51 says: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.17” These are the other forms of self defence available for the States under threat. “The Fourth Geneva Convention (Article 33) states that "Collective penalties and likewise all measures of intimidation or of terrorism are prohibited", while Additional Protocol II (Article 4) prohibits "acts of terrorism" against persons not or no longer taking part in hostilities. The main aim is to emphasise that neither individuals, nor the civilian population may be subject to collective punishments, which, among other things, obviously induce a state of terror. Both Additional Protocols to the Geneva Conventions also prohibit acts aimed at spreading terror among the civilian population. "The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited" (AP I, Article 51(2) and AP II, Article 13(2)). “ http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList488/0F32B7E3BB38DD26C1256E8A0055F83E This introduces another element into the self defence, that is the scope of international humanitarian law, because even the terrorists have the right to humanitarian treatment when they are captured. “The application of international humanitarian law does not constitute an obstacle to the fight against terrorism. Indeed, suspected terrorists can be prosecuted for acts of terrorism. But even the members of armed forces or "unlawful combatants" suspected of acts of terrorism are protected by the Geneva Conventions and are entitled to judicial guarantees if put on trial.” http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism?opendocument Even the use of force should be controlled proportionately by the act of terrorism involved under the circumstances. “The use of force is also regulated by the principle of military necessity. However, the question of military necessity is different from the justification of military actions based on self-defence. The notions stem from different bodies of law - self defence comes from the UN Charter, and miltiary necessity is part of the laws of war”.  http://www.diakonia.se/sa/node.asp?node=1130 It is necessary to make the acts more coherent, because most of the definitions are not yet approved by the perceptions of all the States that differ enormously. “It is evident that the Western, ‘like-minded states’ sometimes have differing perceptions of the nature of international terrorism itself, and also accord differing degrees of respect or trust to the data furnished to them in the name of Western intelligence agencies or secret services.18” This shows that even though certain possibilities of self defence are available for the states, it is necessary to make them more coherent and more effective. As the attacks are not showing any signs of getting abated, in the coming years, it is natural that the States need more and more measures and legal options for their self defence. Under the aeries of the United Nations, it is necessary to form better options and clear laws of self defence to make the world a safer place. BIBLIOGRAPHY 1. American Society of International Law, http://www.asil.org/insights/insigh77.htm 2. Dinsteil, Yorum. War, Aggression and Self Defence, Cambridge Univesity Press, 2005. 3. Elagab, Omer Y., International Law Documents Relating to Terrorism, Cavendish Publishing, London. 4. Heere, Wybo P., Terrorism and the Military, TMC Asser Press, The Hague, 2003. 5. Kellog, Davida, International Law and Terrorism, September-October 2005, MILITARY REVIEW. 6. Lambert, Joseph, Terrorism and Hostages in International Law, Cambridge, Grotius Publications, 1990. 7. McWhinney, Edward, Aerial Piracy and International Terrorism, Martinus Nijhoff Publishers, Dordrecht, 1987. ONLINE SOURCES 1. http://www.michaelschmitt.org/images/4996terr.pdf 2. http://www.austlii.edu.au/au/journals/QUTLJJ/2004/13.html#Heading15 3. http://www.ceeol.com/aspx/getdocument.aspx?logid=5&id=8E0CD358-45C1-4970-AD9B-139AD5982D1D 4. http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList488/0F32B7E3BB38DD26C1256E8A0055F83E 5. http://www.icrc.org/web/eng/siteeng0.nsf/html/terrorism?opendocument 6. http://www.diakonia.se/sa/node.asp?node=1130 7. Read More