Straight Line
The elusive search for international law against terrorism
THERE are credible reasons to believe that terrorism afflicts the whole world, and has acquired the dimension of an industry. It has become an instrument of international politics. In fact, there are clear instances to prove that armed groups patronised by the superpowers have become armed mercenaries with little or no respect for international borders. The Taliban is a case in point.
It is indeed distressing that there is no single multilateral treaty which can claim to arrest and control the rise of international terrorism. In fact, there is no effective multilateral legal remedy to terrorism.
Many countries have turned, at one time or the other, to international law as a refuge against terrorism. Their interest has been sporadic and inconsistent, and not much is heard after the initial shock subsides.
It is interesting to note that contemporary terrorism transgresses international borders with impunity. It has also made profitable use of the so-called third party route. A third party route has essentially meant bringing in outside players to put pressure on interested parties or governments. Thus, an airliner carrying passengers of many nationalities is hijacked in order that governments representing those passengers put pressure on the target government to accede with the demands of the hijackers.
The path to the drafting of an international law on terrorism has been difficult, to say the least. Often, the efforts to understand the cause of terrorism have been an impediment to the process of combating it.
It was not appreciated that the study of the political or socio-economic causes of terrorism would necessarily take a long time, and that the completion of the necessary protective measures could not be postponed pending the completion of the study.
The effective freezing of attempts to draft, at the international level, a law against terrorism was indeed distressing. This was so because there were clever maneuverings at UN level, designed to reduce terrorism to a political question and, thus, to prevent concrete measures from being drafted.
As of now, in the absence of an umbrella act/legislation/ convention against terrorism, the only legal defence against terrorism today is a host of specific conventions and protocols. One must add here that international conventions are really of no help if they expressly have a "political offence" clause that terrorists can take advantage of. To be specific, the law has to be unforgiving in that sense, which present day international conventions are not.
Frustrated with the lack of serious efforts to enact a workable and effective international law on terrorism, states like US and Israel have gone in for "coercive responses." Such coercive measures could be wrong or illegitimate, and indeed they have been. One has to remember that it is impossible to measure the degree of consistency of a terrorist strike, or assess how much action is "proportional" to balance the attack.
Having understood that the rules of war cannot always be applied to terrorism, and also in the aftermath of the World Trade Centre bombings and the emergence of Osama Bin Laden as a major threat, the UN finally saw the need for a global mechanism; a network of inter-related laws to tackle terrorism. The idea was to:
"Establish an ad-hoc committee to elaborate an international convention for the suppression of terrorist bombings and, subsequently, an international convention for the suppression of acts of nuclear terrorism, to supplement existing international instruments... (and) to address means of further developing a comprehensive framework of conventions dealing with international terrorism."
Many countries have, in the past, lobbied for a comprehensive convention on international terrorism. India circulated a draft for this purpose at the United Nations General Assembly during its 51st session. The Indian draft spoke of the need to make it mandatory for countries to have, or to enact, laws domestically that makes all acts of terrorism for political purposes unjustifiable, "irrespective of the considerations, political, philosophical, ideological, racial, ethnic, religious or any other reason that may be invoked to justify them."
Sub-continent watchers are of the opinion that, with one eye on Pakistan, the Indian draft on terrorism makes it the duty of all states to refrain from "instigating, facilitating, financing, assisting or participating in the commission of terrorist offences" in other states, or even allowing its territory to be used for such purposes.
The Indian draft also links arms and narcotics trafficking with terrorism, and the use of so- called social and cultural organisations by terrorists as a cover for their activities.
What is clear is that India considers a sweeping international law against terrorism an absolute must. By de-linking terrorism from political offences, India hopes to make enforcement measures stricter, more narrowly focused.
Extradition agreements have been suggested as one way of combating international terrorism. The success or failure of extradition, as an instrument to tackle terrorism, remains mired in the political will of the states concerned. Extradition, simply put, is the official surrender of a fugitive, regardless of his or her consent, to a requesting state.
Each extradition is a separate agreement under international law. There is no duty to extradite if a treaty does not exist. Nothing denies the right to extradite without a treaty. Extradition, therefore, is a purely subjective matter, and herewith lie both its strength and its weakness. If countries want, they can narrow down or even stifle the definition of "political offence" to make extradition of terrorists quicker.
Pragmatism indicates that, if extradition treaties are to be successful, governments must stop confounding themselves with delicate matters of legal interpretation. One may have to agree that a terrorist is a person who violently attacks "stable democracies in which the political process is available to redress legitimate grievances, and in which the judicial system provides fair treatment." Human rights groups will, however, continue to question the credibility of the fairness of the political regime and judicial institutions.
Under the circumstances, we may consider, on a bilateral basis, entering into extradition treaties to defend our national interests. This is so because an international extradition law is perhaps an impractical proposition, particularly when one looks at the complexities of extradition. It has to be borne in mind that mutual advantage is the underlying motivation for extradition treaties.
We would do well to remember that all nations do not have a common interest in suppressing all forms of crime. Often the gravest terrorist crimes have confounded the courts. The contentious issue of whether extradition should take precedence over prosecution shall remain unresolved.
The debate to differentiate between activities motivated by political ideology and terrorist acts has deepened. The Interpol, the supposedly worldwide enforcement agency, stands seriously handicapped due to different governments' obduracy in agreeing with its version of right and wrong.
International diplomacy has become a product of national interest. Actually, it is a case of one country's national interest versus the others', and there is no space really for uniformity between nations. In fact, there is perhaps no real notion of a global offensive against terrorism.
There has to be a homegrown response to the terrorist challenge. This is so because, in dealing with crimes against humanity, international law will continue to be subject to global political interplay and economic interests than to the principles of unfettered justice. The focus has to be on self-help.
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