The Notions of Global Law vis-à-vis Counter-Terrorism: A Study

  • Mayank Sethi and Swati Sharda
  • Show Author Details
  • Mayank Sethi

    LLM student at Rashtriya Raksha University, Gujarat, India

  • Swati Sharda

    Assistant Professor at Rashtriya Raksha University, Gujarat, India

Abstract

Terrorism and extremism have engulfed every nook of the world. This plague against humanity has become a global challenge for law enforcement agencies internationally. Despite numerous counter actions and strategies that took place every year globally, it still continues to thrive the world. Since the terror attack of 26/11, terrorism has taken a new dimension and has challenged the foundations of global civilization. It became a global phenomenon instead of a domestic national issue. This changing form of terror is becoming more complex with each passing day. Today, globally, there is no single nation left that did not face terrorism. Due to this, there has been an increasing demand from many countries like India, Australia, France, Russia to make a global definition of terrorism and to codify a global law on Counter-terrorism that could help establish criminal accountability at the global and domestic level. This paper analyzes the need for constructing and codifying a global law on counter-terrorism that will facilitate smooth communication between states to prosecute or extradite, such enemies of the community. This paper also analyses the need to construct a global database on terrorism, which includes international and domestic terror activities across different parts of the globe. Such a database will help us to investigate the modus operandi of different terror organizations. It will also strengthen the unilateral prosecution of terrorism which possess another major task that needs to deal with while forming a global law.

Type

Research Paper

Information

International Journal of Law Managment and Humanities,
Volume 4, Issue 2, Page 2599 - 2606

DOI: http://doi.one/10.1732/IJLMH.26572

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

I. Introduction

The current modus operandi of terrorism is quite different from the past. This current phenomenon of terrorism has led the world into a different generation war fair.  Defining terrorism is becoming a major challenge for world countries. The terrorist organization of one country might be the freedom fighter for their own country like organizations fighting to snatch Kashmir from India is labelled as a terrorist in India but are heroes in countries like Pakistan. Similarly, fighters for Palestine are freedom fighters for Muslim countries. However, they are terrorist for Israel; such different of interest makes this difficult to approach unanimously to arrive at the globally one recognized definition of terrorism in the world.

The UN general assembly report of the Ad hoc committee on International terrorism (28th session/A/9028,1973) was a crucial document in history. Recalling the 1972 resolution entitled “Measures to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair, and which causes some people to sacrifice human lives, including their own, in an attempt to effect radial changes” the Ad Hoc committee established three sub-committee to examine definition. The non-aligned grouped states are composed of Algeria, Congo, democratic, Yemen, Guinea, India, Syria, Unisia, Tanzania, Yemen, Yugoslavia, Zaire, and Zamia submitted a collective proposal on the definition of terrorism. These non-aligned grouped states defined terrorism “as an act of violence committed by a group of individuals which endanger human lives and jeopardize fundamental freedoms the effect of which are not confines to one state”. However, this definition does not affect the unassailable right to self-determination under the colonial and racist regimes. The French gave another definition in which they described international terrorism as a “heinous act of barbarism committed in the foreign territory”. Greece came up with another definition. They have distinguished terrorism from freedom fighting and defined it as a “criminal act of violence…. with the aim to put the pressure on any dispute or personal satisfaction”. The house was divided wholly into different views, and thus no unanimous resolution could be adopted on the definition of terrorism.[3]

The first time when international law was connected to terrorism was during the united nation 1993 Vienna world conference on human rights. [4] At this time, the world conference considered that the acts, methods and practices needed to tackle terrorism but failed to adopt a resolution due to difference in opinion among them.

Within the United Nations, until late 2001, the general assembly did not impose any measures against terrorism, and neither did they were able to define it. However, after the attack of 9/11, the council gave a vague definition of terrorism, and they have regarded “any act of terrorism as a threat to peace and security, regardless of its severity, or international effects”.[5] The quasi-legislative approach made by the council after 9/11 creates numerous other problems. There was no proper definition of terrorism, and nor were the lists of terrorists recognized anywhere globally.[6]

There are numerous definitions of terrorism in many different states, and every single definition, though it appears to be correct in its own perception but lacks some vital elements of terrorism in it. However, if all these definitions are analyzed and clubbed properly, then an acceptable definition of terrorism could be evolved globally. Multiple definitions across different states could not solely complicate the conviction of such terrorist but also encourages perpetrator to escapes from the hands of law within the name of economic deficit and freedom fighting. As there is no proper definition of terrorism globally, such terrorist continues to permeate the political system of a country and hence there is no punitive action against such perpetrators either by any government or by any international organization.

(A) Research Methodology

The descriptive and analytical methodologies are used in the course of the research. This is qualitative research in nature. The facts and historical data are analyzed and investigated from secondary sources and research articles.

(B) Research Objective

The main objectives of this research paper are to examine and analyze:

  1. The need to formulate the universally accepted definition on terrorism.
  2. The need for constructing and codifying a global law on counter terrorism.
  3. The need for constructing global database of terror organization present in each part of world.

II. Defining Terrorism: A Global Issue

In general, the word terrorism is derived from the Latin word, “Terrere”, which means “to frighten”.  However, this definition is too vague to set up coordination among states. It has become an international dilemma for human right activist and has represented the dark side of human attitude for the thrust to fulfil their demands.[7]

Academics, politicians, security experts and journalist all gave a variety of definitions to define terrorism. Out of which some definitions are more focused on the mode of organization of such terror organization while the other emphasizes the characteristics and motivation of terrorism, the modus operandi of individual terrorist or their organization, etc.

Scholars all around the world have expressed different interpretations on how to define terrorism globally. Amongst them all, the most widely accepted definition among scholars is given by Yonah Alexander. He defines terrorism as “the use of violence against random civilian targets in order to intimidate or create generalized pervasive fear for the purpose of achieving political goals”. This definition is precise; however, it lacks a number of vital components of terrorism like international linkage. It is observed that terrorist cannot impose terror without the funds and other facilities like infrastructure, weapons training received from many different international connections.[8]

Similarly, Brain Jenkins writes that “the threat of violence, individual acts of violence or a campaign of violence designed primarily to instil fear of terrorism”. [9] This definition seems to be too close to the act of terrorism, but it still ignores to include two important aspects in it. These vital aspects are international support and training. These two significant factors are analyzed by Christopher Dobson[10] and Martha Crenshaw[11]. Dobson writes that ‘the use of explosive devise by the terrorist needs appropriate training’,[12] ‘the need for international assistance is expressed in the definition of Martha Crenshaw’.[13] Wilkinson on observing the terror activities in Asian countries and their link to the political parties, has righty defines “the acts of violence as political terrorism”.[14]

India puts a strong argument in front of united nations that “the modern terrorist does not have any regard national boundaries and declares that all violent acts against states deserve the condemnation”.[15] Indian Prime minister Vajpayee while addressing the UNGA, said that “we must firmly rebuff an ideological, political or religious justification[..] reject self-serving arguments seeking to classify the root causes of the brutal acts of terrorism around the globe.”[16]

However, the biggest question which is in front of all countries in the united nation is that whether or not it is all attainable to reach an objective and exhaustive definition of terrorism that could be accepted and agreed upon by the set rules of foundations of the academic research and which also facilitates the operation on an international scale against the perpetrators of terror activities. All the major definitions proposed by different scholars majorly includes “the terrorism is the intentional use of, or threat to use, violence against civilians or against civilian targets, in order to attain political aims”.[17]

In order to prevent these terror activities across the world, the definition of terrorism must be founded, and it should be based on the system of principles and the law of wars, and also, it should be legislated and ratified by many countries. Thus specifically, we can say that, in order to arrive at an accepted definition of terrorism, we have to construe from the prevailing principles of conventional warfare (between the countries) to reach similar concepts of the principles for nonconventional warfare (for our resolutions, a violent scuffle between a state and an organization).

III. A Global Law against Terrorism: A Need of an Hour

Mr. Kofi Annan has successfully pointed out that “the respect for human rights was not only compatible with a successful counter-terrorism strategy that a country could adopt but was equally an essential element of it in making a global law on it”.[18]

After the attacks of 9/11, a unique approach was adopted by the United States to tackle terrorism, and now the states started seeing them as an armed conflict against themselves.[19] The security council has involved for a quite long time in making a global law in international counter-terrorism but failed to make it because of difference in opinions among nations. A global law on terrorism becomes necessary for all the nations as it is no longer problem of specific countries, but it has become an issue involving a number of international aspects. Since it has become an international phenomenon, a response to terrorism must also be given on an equitable large scale. Developing an effective international strategy to combat terrorism requires an understanding of what it is we are dealing with, and in other words, we need a definition of terrorism. Without answering the question of what is terrorism, there can be no responsibility to be imposed on the countries who are supporting such terror organization, nor can any steps be taken to combat such terror organization and their allies.[20]

Without definition, it would be impossible to formulate or implement worldwide an international global law against terrorism—a conspicuous example of the want to define terrorism that concerns the extradition of terrorist. Although most of the countries worldwide have signed the bilateral and multilateral agreements among themselves concerning a variety of crimes, extradition for political offences, whereas in the majority of those agreements, it is far analyzed that the background of terrorism in a majority of those agreements is political. These loopholes allow the countries to shirk their obligation to extradite individuals who are wanted in terrorist activities.

The goal of the nations while drafting a global law against terrorism is to make it a universal crime like genocide and piracy. The world nations have to come forward and make a resolution that supporting or committing it would also compromise the identity of such state as a sincere member of the international community. If the comprehensive convention against terrorism in its present state is enacted and adopted, it will definitely put pressure on all the other countries to accept that only the crime against the state can be named terrorism.

IV. Global Terrorism Database

The need of an hour is to create a database that is formed with universal standards of major countries and contains all the statistics of all terror organizations and terror acts committed by them in various areas across the globe. The important thing here is to note that these databases which need to be formed should be within reach of every country. It shall contain the modus operandi of terrorist and their organizations to whom they belong and other various important things that could help the countries investigating such terror attacks to trail the chain of custody during their investigations. Since it is seen that most terror organization has a particular modus operandi so while investigating a case the law enforcement agencies of respective states can easily determine the organization involved in such attacks. Making a global database also helps to improve the coordination among the states. It also put pressure on those various states which under the influence of the population of their country, categorizes such terror organization as freedom fighters of their country.

There are many databases formed by different organizations in the world which contains a part of such information on terrorist or their organization. Many of these databases are closed source, and if any country needs such information from such databases, then they have to go through long application processes.

Over the past few decades, world countries had diverted their focus on establishing open-ended databases. A similar example of this kind of database is the global terrorism database (GTD), which is an open-source database that contains information about 82,000 terrorist attacks since 1970.  It is formed by Pinkerton global Intelligence Service.[21] It contains information about fatalities conducted by various terror attacks, attack frequency of terror organizations and different kinds of weapons used in various terror attacks across the globe.

This database has serious errors in it, which are formed due to many issues faced by Pinkerton global Intelligence Service during the collection of such information. Some of the main issues are inaccurate reporting by media, government censorships and disinformation, but still, they have managed to build a database that contains a rigorous analysis of terror activities.[22]

V. Conclusion

Undoubtedly, terrorism has influenced our lives in the most disproportionate way and has relative harmed us with different kinds of violence, particularly to the States, and even to our common lives by causing greater harm to mankind. In the light of this, there is an intense and persistent disagreement about defining terrorism over many years; it becomes our crucial priority to first discover precisely what is so objectionable about defining terrorism. The views and actual practice amongst different states and by being evidenced through the United Nations organs indicates us that the international community regard to terrorism is a grave injury to the fundamental human rights and freedoms, given by the State authorities and by the international securities of the united nations. Terrorism should suppose be distinguishable from private violence due to its political or public motivations and connections. However, while a definition, one could concentrate on the structure and restrains of the unilateral implementation of Security Council measures. These considerations, along with other incidental or subsidiary opinions, provide for a coherent but unproblematic basis on which internationally we can define and criminalize terrorism globally.

Moreover, it is also suggested that under the guidance of the United Nations, the definition of terrorism should be agreed upon at the earliest by the states so that it can put aside the States’ self-interests as discussed above. The lack of a universally accepted definition under international law helps several states to indulge in state terrorism and state-sponsored terrorism by using force against their own citizens and by repressing or exploiting human rights. In future, the use of nuclear, biological and chemical weapons and suicide attacks may become a common modus operandi by different terror organizations.

The access to terrorism database needs further improvement in their quality and quantity. More work needs to be done in validation, and expansion of these databases for a complete terror profiling; further, it must include geospatial analysis.

Further, at last, it the duty of all international societies to refrain themselves from adopting the dual standards when it comes to combatting terrorism. This can be achieved if they keep their self-interests aside and focused on overcoming the battle against terrorism. As soon as nations of the arena come to this consciousness, the more fruitful it will be for our society.

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[3] Kshitij Prabha, Defining terrorism, 24 Strategic Analysis (2000).

[4] Vienna Declaration, Programme of Action § 25 (1993).

[5] Security Council, Resolution 1566, Adopted by the Security Council at its 5053rd meeting (October 8, 2004), available at https://www.un.org/ruleoflaw/files/n0454282.pdf.

[6] Lawrence A Kletter, The Palestine Yearbook of International Law (HeinOnline 1987).

[7] Paul Wilkinson, Technology and terrorism (Psychology Press. 1993).

[8] Arthur J Goldberg, International terrorism: National, regional, and global perspectives (New York: Praeger. 1976).

[9] Brian M Jenkins, International terrorism: trends and potentialities, Journal of International Affairs (1978).

[10] Christopher Dobson & Ronald Payne, The Weapons of Terror—Guns, in The Weapons of Terror (1979).

[11] Martha Crenshaw, Theories of terrorism: Instrumental and organizational approaches, 10 The Journal of strategic studies (1987).

[12] Supra note 10.

[13] Supra note 11.

[14] Supra note 7.

[15] Karthika Sasikumar, State agency in the time of the global war on terror: India and the counter-terrorism regime, Review of International Studies (2010).

[16] Atal Behari Vajpayee, Address to the 56TH session of the UN General Assembly, 10 November (2001).

[17] Boaz Ganor, Defining terrorism: Is one man’s terrorist another man’s freedom fighter?, 3 Police Practice and Research (2002)

[18] Javier Rupérez, The United Nations in the fight against terrorism, United Nations Counter-Terrorism Committee Executive Directorate (2006).

[19] Supra note 6

[20] Supra note 6.

[21] Anthony H Cordesman, Tracking the trends and numbers: Islam, terrorism, stability and conflict in the Middle East, Washington, DC: Center for Strategic & International Studies (2017).

[22] Gary LaFree & Laura Dugan, Introducing the global terrorism database, 19 Terrorism and political violence (2007).

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