The Emerging International Law of Terrorism

In the wake of the recent rise in acts of terrorism and those which can more particularly be described as those of international terrorism, where the destructive actions are designed and garnered across national boundaries, a recent paper on SSRN makes an attempt to examine "whether contemporary terrorism and counter-terrorism responses have led to a new or emerging public international law of terrorism." Ben Saul in the paper titled "The Emerging International Law of Terrorism" discusses the recently emergence amongst the international law front of the specific rules to deal with terrorism.

The abstract of the paper, an apt introduction to its contents, states;

Until recently, terrorism been addressed under existing frameworks of the law on the use of force, humanitarian law and human rights law, or under sectoral treaties dealing with particular offences. This article asks whether there is now an emerging ‘international law of terrorism’ or ‘global anti-terrorism law’ of which it is possible to speak with increasing confidence, just as one can speak of specialised (or self-contained) regimes on the law of the sea, or of human rights, or international environmental law. It identifies key recent patterns in response to contemporary terrorism: (1) new or emerging anti-terrorism norms (in the criminal and financing fields) which can be properly called international anti-terrorism law; (2) an increasing clarification or particularization of general norms in their application to terrorism, usually without generating ‘new’ law as such; and (3) the continuing application of unaltered general norms to the problem of terrorism. While the focus is on developments in international criminal law and anti-financing law, the article also broadly charts the key trends in the law on the use of force, humanitarian law and human rights law.

The paper goes on to examine the "conceptual definition of Terrorism " in the context of International Criminal Law and explores the future trends in this area of international law in as much as the law is required to deal with various niche aspects such as terrorist financing,;international use of force against terrorists; the conflict with international humanitarian law; etc. to conclude that "the successful conclusion of the UN Draft Comprehensive Terrorism Convention might go some way towards consolidating and progressively developing a field of global anti-terrorism law and enhancing the effectiveness and clarity of counter-terrorism efforts. Such a 'framework‘ convention would establish conceptual agreement on the definition of terrorism and exceptions to it, as well as setting out principles for resolving conflicts between anti-terrorism norms (including the sectoral treaties) and between other international norms and anti-terrorism norms (particularly as regards international criminal law, humanitarian law, Security Council measures, and human rights law)."

Indian Anti-Hijacking Law: An analysis

Having heard of 9/11 for just six years now, it seems quiet surprising that the law against hijacking of aircrafts has been in vogue for almost four decades now. Signed in 1970, the 'Convention for the Suppression of Unlawful Seizure of Aircraft' [click here for the full text of the Convention] was neither the first nor the last international treaty reflecting the concern of the States against the acts of aircraft hijacking and its relation to terrorism. But than reference to it is relevant as far as Indian Anti-Hijacking legislation is concerned.

The first international convention in this line was the Tokyo 'Convention on Offences and Certain Other Acts Committed on Board Aircraft' which was signed in 1963 but came into force only in 1969. This Tokyo Convention obliged all the signatories to take all appropriate measures required in order to restore control of an hijacked aircraft to the Captain of the ship or the person in-charge and various other measures in relation to the safety of the crew and the passengers. The 1970 Convention, signed in Hague and hence 'the Hague Convention', was a measure to strengthen up this 1963 Convention in the sense that it defined what constituted an "unlawful seizure of aircraft" and obliged the signatories to engraft this offence in their domestic laws as one punishable with various penalties. This Hague Convention was further built upon by the Montreal 'Convention for the Suppression of Unlawful Acts against Safety of Civil Aviation (Sabotage)', signed in 1971 and provided for situations such as attack against a person on-board a civilian aircraft in flight or an attack which would endanger the aircraft.

As for India, as I mentioned, the 1970 Hague Convention is relevant for it formed the backdrop for the passing of the Anti-Hijacking Act enacted in 1982. Nonetheless, India being a dualist State, only the provisions of the Anti-Hijacking Act are applicable in India and the Convention per se is not of relevant except as it may be referred by courts for interpretation of Act if required. This Act of 1982 [click here for the full text] came under intense criticism when IC-814, an Indian Airlines plane, was kidnapped and taken to Kandhar and it was only upon the release of a few terrorists, as demanded by the kidnappers, that the hostages could be released. Nonetheless a newly wed Rupin Katyal was killed on-board for refusing to co-operate with the kidnappers. [click here for wiki version of it]

This Anti-Hijacking Act defines the act of hijacking is based upon a single line definition of hijacking, which has been defined as seizing or exercising control of an aircraft, unlawfully, by force or threat of force or by any other way of intimidation on board an aircraft in flight. The term aircraft in flight has also been defined as starting from the moment external doors of the aircraft are closed following by embarkation till the moment they are opened again for disembarkation. Here it to be noted that the Act covers any aircraft which is not a military aircraft or one used by customs or police and the nation in which the aircraft is registered is not relevant.

The punishment for hijacking is "imprisonment for life" along with a fine and there is no power with the judge to reduce the sentence below that and this raises question of constitutionality of this provision for Section 301 of the Indian Penal Code, which did not leave any power with the judge as to the quantum of punishment was declared as unconstitutional by the Supreme Court on grounds that it interfered with judicial review, a facet of basic structure doctrine. As regards the commission of violence in connection with hijacking, the perpetrator shall be liable to the same punishment which is imposable for a similar offence if committed in India.

Then the Act also prescribes that hijacking of aircrafts shall be considered as a part and parcel of the various grounds under the extradition treaties signed by the Government of India with other countries. It also makes way to provide for extensive cooperation with and in relation to the Contracting Parties (to the Hague Convention).

This is the sum and substance of this eleven section Act. But the reality does not stop at that for this law is substantiated by the external and defense policy of India, as revamped by the former National Security Advisor, J.N. Dixit. Nonetheless, nothing has been done on the legal front as the 1982 Act continues whereas there have been a number of changes all across the world, brought in the legal systems to deal with the menace of terrorism, of which aircraft hijacking is a distinct part.

In retrospect, however, it looks that the system does work with this older law for the IC-814 hijackers have been finally brought to book and punished under this 1982 Act itself, as this NDTV news-item reports. But as there is always a room for improvement, so does the argument of reforming this outdated law find strength in the wake of the recent advances with the terrorist activities have made.

India: Another anti-terrorism law?

Terrorism, the growing menace in India and internationally, has evoked serious countenances. After all, desperate times call for desperate measures. Since executive branches have to take permission of the legislative branches and have to act within the authorized perimeter of permitted activity (defined by law), growing instances of terrorism have led to increasing under-currents in the developmental and institutive processes functional in the legal designs and frameworks worldwide. Internationally when we already have the various war crimes tribunals (such as International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, etc.), still the world-felt need for improved mechanism for international crimes led to the institutionalization of the International Criminal Court. Though there have been issued about its legitimacy, jurisdiction, infringement on state sovereignty etc., yet the ICC is here to stay and has commenced its work.

Nationally, as well, there have been wide-spread developments. For example, UK enacted a series of Parliamentary laws to deal with the issue; namely the Terrorism Act, 2000; Anti-Terrorism, Crime and Security Act, 2001;Prevention of Terrorism Act, 2005; Terrorism Act, 2006; etc., to deal with the grappling issue. Similar was the situation in the United States, a series of laws, with the most prominent amongst them being the USA PATRIOT Act, 2001 (i.e. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, 2001).

As for India, the thing is not new. We have had seriously-civil-rights-prejudicing sedition laws for long, thanks to the colonial law. The hay days of Indian democracy have seen them implemented frequently, with the last most prominent invocation of them being in and around the 1975 national emergency. But we do have specialized terrorism laws as well. The first probably (though not technically) can be recalled as the infamous 'Maintenance of Internal Security Act, 1973' which was hugely invoked during the emergency period a couple of years later. The hype of the law was such that Lalu Prasad Yadav named one of his daughter as Misa Bharti (after the 'MISA Act').

This MISA Act was followed by more infamous Terrorism and Disruptive Activities (Prevention) Act, 1985 (or simply TADA), which was in fact the first specialized and focused Indian legislation on terrorism. It was invoked heaving and indiscriminately against the Khalistan movement and during the 1990s Bombay blasts.

Thereafter we had a refined version of terrorism law, with a bit more rights to the accused, but an anti-terrorism law anyways: The Prevention of Terrorism Act, 2002 or POTA. The use of this enactment was not very prominent was still had a huge impact on the working psyche of the Indian police and armed forces, which employed the usage of this law to such a great extent that there was huge political furore over its misuse and thus leading to its repeal.

So, as of today, India does not a specialized anti-terrorism law. Any aftermaths? I do not think so. But still the Indian Parliament would like to have another stint with framing one. Good news or bad, that time will tell, depending upon the manner it is invoked and the use it is put to, but definitely, not a good precedent. Why do not we decide in principle to either have one or not to have one. Why do we keep on fondling with successive governments coming out with their own versions of such a law. It might even be better not to have one; there are sufficient powers vested under our ordinary criminal laws on the executive to deal with such situations.

The major advantages which an anti-terrorism law has on the ordinary criminal law of the land can be viewed as; giving more powers to executive to deal with situations; greater ability to armed forces to counter-act, with generally civil rights being suspended; higher conviction rates of the accused with less requirements of evidence and intent to be shown; etc.

But in any case, where would be head to with such a law and why? What are the major motivations for the government to go for a law which subverts and in some cases even over-rides the judicial process? I personally and frankly believe it is influenced by their distrust on the ability of the judicial process and the carving for more power.

If its the former, i.e. lack of trust on the judicial system, then why have one at all? Is it there for formality, to show the world that we have a civilized system with a committed judiciary and a developed jurisprudence but internally we find that its not worth it so we have special mechanisms in place to over-ride them at time and do what we think is the correct sense of justice such that it even does not require a trial.

If its the latter, it does not require any elaboration but is in fact an illustration of the human personality and diaspora; greed for power.

In any case, its not worthwhile to have one such law. It leads no where except for killing millions of innocent civilians, who are scarified in the name of preserving national integrity and well-being. And then there always are fall-outs from having a biased law, not to mention the irreparable harm it causes to the growth of judicial tolerability and legal certainly. Any body remembers the Habeas Corpus case in India, and the Regina v. R case in UK?