Use of Force Terrorism and International Law

International law, as commonly understood, consists of a body of rules governing the relations between states. It is a system of jurisprudence which for the most part has evolved out of the experiences and the necessities of situations that have arisen or time to time. It has developed with the progress of civilization. Thus international law is the standard of conduct at a given time, for states and other entities subject thereto. It comprises the rights privileges, powers and immunities of states and entities invoking its provisions as well as the correlative fundamental duties, liabilities and disabilities.

Thus, International Law is more or less in a continual state of change and development. The very essential attribute of the sovereignty is that it should possess jurisdiction over all persons and things within its territorial limits and in all causes civil and criminals arising within these limits. Mutual respect to each other’s sovereignty places an obligation on the states to ensure that the state by itself its nationals do not indulge in activities against another state in violation of international law and similarly that its territory is not used by persons on its territory in acts in violation of international law. Violations of obligations attract criminal responsibility and gives right to the other state to take measures to protect itself. Problem of Terrorism:

International Community is facing the problem of use of force or violence in the form of terrorism. States as well as non-state actor are indulging in terrorism. A number of states have engaged and continue to engage, directly or indirectly in violence against populations in a manner designed to create fear among them to serve their political ends. Due to increased activities of terrorism, the aims and objects of the U.N. are being undermined and world peace is in danger.

Characteristics of terrorism are its extreme violence, its indiscriminate, inhuman and perfidious use of armed force from across the national borders, use of highly injurious weapons, innocent and unsuspecting target victims, chosen target places of religious, or sentimental or national significance or crowded, without warning and surprise attacks, utter disregard of any rules and regulations relating to use of armed forces and complete violation of international humanitarian law.

The terrorists indulge in these activities to spread terror and fear among the civilians to demoralise them against the established state authorities, knowing fully well that their activities are in violations of well established and well meaningful principles of international law and against peace and security of mankind. But these elements or people are not without aims.

The terrorists want to establish their hegemony or one can say their dictatorship based on their own thinking giving the dogma a name. In the words of Prof. Louis Rene Beres, “like the ironic playwright who explodes the myth of an ordered cosmos, the contemporary terrorist often sees great beauty in the ultimate form of disorder in chaotic visions of an apocalyptic end to ‘heresay’ ‘blasphemy’ ‘apostasy’ and all other forms of unbelief. For the terrorist who remains defined in many different ways by the diverse words of law and politics, violence is not only a sacred path to universal cleansing and redemption, it is the only path. What is more, this “path”- to continue the metaphor-is more than a means to an end. It is in essence the end, unto itself”.

And Prof. Beres further adds that “Today this path can even include nuclear terrorism”. After discussing various aspects of the problem and probable solutions, Prof. Beres concludes: “Recalling the legal implications of perfidy for anticipatory self-defence, and understanding the potentially dreadful fusion of enemy irrationality with weapons of mass destruction, our only immediate remedy appears to lie in preemption…International Law is not a suicide pact.

Facing various intolerable expressions of “sacred violence” the civilized community of states must quickly understand the availability of authoritative norms supporting anticipatory self-defence”. On the other hand, Professor Parvez Ahmed in his article “Terror in the name of Islam unholy war, not jihad” arrives at different conclusions based upon his analysis of the problem. In his view, Islam provides a theology for peace and guidelines for living peacefully in a world with diverse people and nations. Indeed peace and justice are the fundamental elements of Islam. The Qur’an preaches pluralism and also emphasizes the sanctity of life. In short, Islamic jurisprudence advocates the preservation of life, honour and the dignity of all human life as a supreme endeavour.

The meaning of word ‘jihad’ has a vast number of connotations including giving charity and feeding the poor, concentrating intently in one’s prayers, controlling one’s self and showing patience and forgiveness in the face of offences, gaining authentic knowledge, and physical fighting in order to stop oppression and injustice to name a few. Therefore, there is no place for terrorism in Islam. Al- Qaida is one such group whose actions are contrary to the teachings of Islam, yet they are often labeled as “Islamic”.

The American Muslim community has always taken a principled position on the issue of terrorism- an unequivocal condemnation. American Muslim organizations rallied behind a ‘fatwa’ against terrorism and extremism issued by American Muslim jurists which stated in part: “Islam strictly condemns religious extremism and the use of violence against innocent lives. There is no justification in Islam for extremism or terrorism. Targeting civilians’ life and property through suicide bombings or any other method of attack is ‘haram’- or forbidden- and those who commit these barbaric acts are criminals, not martyrs”. In the light of the teachings of the Qur’an and Sunnah we clearly and strongly state: 1.

All acts of terrorism targeting civilians are haram (forbidden) in Islam. 2. It is ‘haram’ for a Muslim to cooperate with any individual or group that is involved in any act of terrorism or violence. The U.S. has a terrorism problem in good part because it is so closely allied with Israel, not the other may around. America allowed Israel, the more powerful party, to continue a policy of territorial expansion and unilateral action. This context produced suicide bombers. It was a tragic out- growth of a brutal occupation. As far as the problem of terrorism in Afghanistan is concerned, the blame squarely lies on U.S.A. In Afghanistan, the CIA covertly and overtly supported Bin Laden’s jihad and celebrated his band of loyal men as ‘mujahids’.

A proxy war of different sort ensued as the U.S. began to aid the ‘mujahideen’ against the Soviets in Afghanistan. As a result of war, Afghanistan became a brutalized society. But unlike rebuilding Europe through the Marshall Pan after World War II, no such efforts were undertaken to develop a civic Society in Afghanistan. Instead, the CIA actively promoted violence in Afghanistan. In fact, they are the result of the socio-political conditions of occupations (e.g. Palestine, Chechnya, Iraq) and the outcry of proxy wars fought in Afghanistan where America not only armed the ‘Mujahidden’ but also enabled a culture of drugs and violence. And large number of Muslims are also Al-Qaida’s victims.

U.N. Actions: There are many different views on the aspects of terrorism and how to solve the problem. The increasing intensity spread and frequency of terrorist acts compelled both the General Assembly and the Security Council to take measures in the matter.

The General Assembly adopted the International Convention for the Suppression of Terrorists Bombings, (1997) and the International Convention for the Suppression of Financing of Terrorism (1999). The Security Council, which is primarily concerned with the maintenance of international peace and security adopted strong and comprehensive resolutions in this regard. In its resolution 1269 (1999), the Security Council unequivocally condemned all acts, methods and practices of terrorism as criminal and unjustifiable regardless of their motivation, in all their forms and manifestations, whatever and by whomsoever committed, in particular those which could threaten international peace and security.

It called up on states to cooperate in the suppression of terrorism and in criminals proceedings against persons accused of terrorist acts. After the outrageous event of violence of 11 September 2001, the Security Council adopted resolution 1373 (2001) acting under Chapter VII of the UN Charter. This resolution referring to its earlier resolution 1368 (2001) confirmed that the Charter does not displace the right to resort to armed force in circumstances not contemplated beg the Charter. Further, it recognized that acts of terrorism constitute a threat to world peace and security and the need to combat them by all means, in accordance with the Charter.

At the same time, it reaffirmed the inherent right of individual or collective self-defence as recognized in the Charter. It also emphasized the duties of states in connection with the financing of terrorism, the freezing of assets of persons who commit or attempt to commit terrorist’s acts or facilitate or participate in the commission of terrorist acts and the like and their freedom of movement. It also decided that all states: (a) Shall refrain from providing any form of support, active or passive to entities or persons; (b) Shall not supply weapons;

(c) Shall deny safe heaven to them or to their activities in any form; (d) Shall bring them to justice and punish them commensurate with their crimes; (e) Shall prevent their movement by all means.

The above resolution also noted with concern the close connection between international terrorism and transnational organized crime, illicit drugs, money-laundering, illegal arms trafficking and illegal movement of nuclear, chemical, biological and other potentially deadly materials. Following the practice that it has developed when sanctions have been imposed, the Security Council established a Counter Terrorism Committee to monitor the implementation of the resolution and called upon all States to report within ninety days (90) on the steps taken to implement the resolution.

The resolution concluded by expressing the determination of the Security Council to take all necessary steps to ensure its full implementation. It is heartening to note that the text of the resolution was carefully negotiated beforehand and thus has the support of all the members. The above resolution is a law into itself on the subject and places heavy responsibility on the members of the UN to comply with it in letter and spirit in interest of international peace and security. It is binding on all states.

It may be noted that the resolution recognizes that the state- the victim of terrorism may exercise its inherent right of self-defence in such cases. It is also the recognizes of the immense dangers posed by power hungry, unscrupulous, misguided, cruel, lawless, and cynic terrorists who could get access, by unlawful means, to weapons of mass destruction, including nuclear armaments, and would not hesitate to use them. Inspite of the expressed U.N. concern and the above resolutions, the continuation of terrorism is cause for great concern.

The opinion vary but the one which makes sense is that the U.S.A might not have been sincere in pursuing its objective of ending terrorism because of its policy objectives in Iraq, Palestine, Pakistan and Afghanistan as it would like to have leverage and the reasons for its interference or say in these places; otherwise how is it that apparently it is not getting full cooperation of Pakistan who is its long time very closely and is fully dependent upon military and non-military aid on U.S.A. it is often said that without the aid of U.S.A., Pakistan could crumble any day.

At this point it is relevant to examine the implications of change of policy arising from the election of Mr. Obama as President of the United States. In his inaugural address on 20th January 2009 President Obama mentioned a few points which have a direct relevance on the subject. Those points- vague as they were because of the occasion- have been made explicit in the Foreign Policy Agenda document dated January 23, 2009 called titled Obama Biden Plan. The said document contains the following relevant points. Obama and Biden will:

(a) Refocus American resources on the greatest threat to our security- the resurgence of Al-Qaeda and the Taliban in Afghanistan and Pakistan. They will increase our troop levels in Afghanistan, press our allies in NATO to do the same, and dedicate more resources to revitalize Afghanistan’s economic development. They will demand the Afghan Government do more, including cracking down on corruption and the illicit opium trade.

(b) They will increase non-military aid to Pakistan and hold them accountable for security in the border region with Afghanistan. (c) The gravest danger to the American people is the threat of a terrorist attack with a nuclear weapon and the spread of nuclear weapons to dangerous regimes. For this purpose the U.S. and its allies will pass laws to detect and stop the smuggling of weapons of mass destruction throughout the world. (d) The will deny terrorists the ability to steal or buy loose nuclear materials. (e) America is the strongest when (we) act alongside the strong partners.

Hence the U.S. will strengthen old partnerships and build new ones to confront the common challenges of 21st Century terrorism and nuclear weapons, climate change and poverty; genocide and disease. (f) They will pursue tough, direct diplomacy without preconditions with all nations, friend and foe. And, after careful preparation will signal that America is ready to come to the table, the world will be more willing to rally behind American leadership to deal with challenges like confronting terrorism and Iran and North Korea’s nuclear program. (g) A bipartisan consultative group of leading members of congress will be constituted to foster better executive-legislative relations.

This group will also include the Chair and ranking members of Armed Services, Foreign Relations, Intelligence and Apparitions Committee. This group will meet the President once a month to review foreign policy priorities and will be consulted in advance of military action.

It is too early to say in what way these policy statements will be acted upon and with what result. One has to wait and see for assessing whether they are cosmetic and rhetoric for the occasion as evidence for change. The reaction in India has been to ‘wait and watch’. The reason is obvious namely absence of any definitive indication of action by the Obama administration about

Bombay tragedy, which hurted Indian nation very badly. India statesmanship in the aftermath of terrorists’ attacks in stands on a very high pedestal as judges by any standards. Inspite of the most heinous crimes committed by Pakistani terrorists according to plans hatched in Pakistan, terrorists trained in Pakistani camps and aided and abetted by Pakistani Government, India did not use force in response.

On the other hand Indian External Affairs Minister Shri Pranab Mukherjee, stated while equating the Mumbai terror strikes with the September 11, 2001 terror attacks in the U.S. said that it was time states supporting terrorism were disciplined by the international community. He stated, “Terrorism is not just the act of misguided individuals. Since 9/11 the magnitude depth and audacity of terror acts, as once against manifested in Mumbai attacks, demonstrate that this is no longer a problem of a state or of a region but of the whole world.

This problem becomes more acute when it becomes state sponsored. Recalcitrant states must be brought to discipline by various international measures.” Mr. Mukherjee further suggested forging of closer economic and political links among countries opposed to terrorism ‘to rebuff such evil attempts that strike at common civilization roots and to ensure a peaceful environment. Both India and ASEAN will need to act resolutely. Our growing economic and political links will send a message that the terrorists’ design will have to be defeated not just by India but by the International Community as a whole. (Hindu, 22.01.09). The above statement is not only in conformity with the U.N.

Charter and various resolutions but demonstrates India’s active support to the high ideals mentioned tin the Preamble and supports the Purpose laid down in the U.N. Charter through action in the face of grave provocations in the context of grave situation arising from Mumbai attacks. Now it is for the International community as a whole to take collective action end terrorism to and to restore world peace. Conclusion:

It is recognized that the UN system, in the face of terrorist acts is going through a crisis period. Unilateral armed actions are posing a threat to the principle of the rule of law which is the very basic of international law. Anarchy will rule if the rule of law is not observed. Therefore, it is the duty of jurists world over that the rule of law is affirmed and established. If any change is required in the rules, it must be done after due participation and deliberation by the international community.

It must be recognized that the policies of states formulated by the governments in power are at variance. These policies are also subject to change. This is particularly so in democratic countries. We must also recognize that even in the US at present there is a strong body of jurists who support the UN.

The International community must seriously consider proposals which suggest reform of the UN system. Our quest for rule of law should concentrate more on mobilizing the consciences of the people besides activating the consciences of their rulers. All is not lost. The process of thinking in the US itself has started. There is strong message to the American people and in what Senator Robert Byrd said: Ultimately, it will always be the interest of even a superpower for the system of international law to survive. Fundamental to that system is the idea of agreed ‘rule of law’.

-------------------------------------------- [ 2 ]. Student, Third Year, B.A.L.L.B. (Hons.), Gujarat National Law University, Gandhinagar, Gujarat, India. The author can be contacted at [email protected] . [ 3 ]. Prof. Louis Rene’ Bares , Religious Extremism and International Legal Norms : Perfidy Preemption and Irrationality, p. 709-710’ and 128, Case Western Reserve Journal of International Law, vol. 39, no. 3 (2007-08), pp. 709-710, 728. [ 4 ]. Ibid pp 728-729.

[ 5 ]. See generally Parvez Ahmed, Terror in the Name of Islam-Unholy War, Not Jihad, Case Western Reserve Journal of International Law, Vol. 39, no. 3(2007-2008), pp. 759-788.