NEW CHALLENGES, NEW RESPONSES: REFLECTIONS ON CONTEMPORARY TERRORISM AND THE ROLE OF THE JUDICIARY DR.

MALEEHA LODHI PAKISTAN HIGH COMMISSIONER TO BRITAIN In a globalized world of interconnected threats and challenges, terrorism poses a clear and present danger to peace and security, more menacing than ever in the past. Nature of contemporary terrorism. While terrorism is an old phenomenon, today we face a new and more complex variant. The level of the threat is more strategic, which is why some have equated this more destructive wave of terrorism with warfare, and argued that efforts to counter this ought to be predicated on the premise that this phenomenon goes beyond just criminality. The defining features of contemporary terrorism are its global nature and its capacity and intent to effect mass casualties. Their transnational character, global reach and easy access to technology have enhanced the lethality and agility of terrorists over the past decade. No country is immune from the threat today, which is pervasive and has both local and global dimensions and manifestations. Balance between Security and Liberty This new challenge places new responsibilities on us all and requires new capabilities and an integrated approach using all the tools at our command encompassing political, financial, legal and military means. The judiciary has a key role to play: in judicial enforcement of antiterrorism legislation, in the interpretation and application of these laws, as indeed the prosecution of terrorists. The enactment of legislation to deal with terrorism has created a new environment for the judiciary marked by questions which are not only new and unfamiliar but are

calls for the defence of human rights. and must work in tandem. indeed a central dilemma of our times. one of the five pillars of action that he identifies and recommends. especially given the instances of human rights abuses in Guantanamo Bay and Abu Ghraib. Many have argued. As reinforcement of this point. famously said it is where the rule of law has broken down that terrorism takes root. Lord Woolf. The legal and judicial community also has a significant role to play in the debate. How this is translated into action will be an important determinant of the new global norms and ‘rules’ governing the response to terrorism. not antithetical. currently being debated in New York. It is the judiciary that has to undertake the onerous task of balancing anti-terrorism concerns with the right of due process. .characterized by complex political and moral issues which often warrant taking a global perspective. The judiciary’s role in reviewing the provisions and supervising the application of counter-terrorist measures is an exceedingly important one. If security and liberty are decoupled. Human Rights Obligations. about whether certain aspects of current counter-terrorism strategies are compatible with international human rights standards. nationally and globally. In the global counter-terrorism strategy proposed by the UN Secretary General Kofi Annan. counter-terrorism efforts are denuded of their essential ethical moorings. is how to strike the right balance between security and liberty. One of the greatest challenges in this domain. that counter-posing security and liberty and mutually exclusive forces sets up a false trade-off because the two have to be seen as complementary. and I agree. Britain’s former Lord Chancellor.

It is important to recall that the 2005 World Summit resolution. called for “international cooperation to fight terrorism” to “be conducted in conformity with international law. violated US and international law embodied in the Geneva Conventions. in a recent landmark judgment. the US Supreme Court ruled (in Hamdan v Rumsfeld) that the executive’s authority to try terrorist detainees. refugee law and where applicable. The ICJ’s Berlin declaration also called on states to “strictly adhere to the rule of law including the core principles of criminal and international law and the standards and obligations of international human rights law. Several intergovernmental bodies and regional organizations such as the Council of Europe and the Organization of American States (OAS). refugee law and international humanitarian law”. held at Guantanamo Bay. in particular human rights law. humanitarian law”. Judicial Assertiveness There is increasing judicial assertiveness in defence of the principle that the battle against terrorism must be fought in accordance with the rule of law. . asserted. have adopted treaties or guidelines that affirm the importance of defending human rights in the struggle against terrorism. in specially organized military commissions. As the Berlin Declaration. approved by the high-level plenary meeting of the UN General Assembly in September 2005. For example. including the Charter and relevant international conventions and protocols.” It further urged states to “ensure that any measures taken to combat terrorism comply with their obligations under international law. “safeguarding persons from terrorist acts and respecting human rights both form part of a seamless web of protection incumbent upon the state”. adopted in 2004 by the International Commission of Jurists (ICJ).

In another case the House of Lords rejected the government’s contention that it could use information obtained by torture by foreign governments as evidence in UK courts. and the use of force against civilians by states’ armed forces in armed conflicts. A number of important steps have been taken to provide a legal basis for common actions against the spread of terrorism. I will return to these vexed issues later. 13 universal Conventions or Protocols in additional to regional legal instruments have been adopted to provide the legal framework to outlaw various forms of terrorist behavior. But disagreements continue on key issues: on a definition of terrorism. Recently the appeals court upheld a previous ruling that so-called control orders – a form of house arrest – used to detain terrorist suspects constituted a breach of European human rights law and had to be quashed. that the executive’s counter-terrorism actions must be bound by law. Between 1963 and 2005. Britain’s highest court. this has not prevented progress in the adoption of legal and operational measures to combat various aspects of terrorism. have ruled more than once.Similarly the House of Lords. Consensus on Goals: Disagreement on definition There is wide consensus among the international community on the need to confront the grave threat posed by terrorism comprehensively and decisively. before and after . Several Security Council resolutions have also been adopted. Although an internationally agreed legal definition of terrorism continues to defy a consensus. on the distinction between terrorism and legitimate resistance against foreign occupation or for self-determination.

The Counter Terrorism Committee set up under this Resolution to monitor the implementation of its provisions. the Counter Terrorism Committee Executive Directorate (CTED). Earlier in 1999. and 1624(2005).9/11. Resolution 1373 adopted under Chapter VII of the Charter within a couple of weeks of the 11 September 2001 terrorist attacks against the US. 1973 (2001). the Security Council had set up the 1267 sanctions committee (against Al Qaeda and the Taliban). The Committee also has an executive arm. As a result. 1540 (2004). there has been an increase in the ratifications by states of these UN conventions. Anti-Terrorism Conventions Thirteen Conventions/Protocols oblige member states to take a number of steps to eliminate terrorism: • • Convention on Offences Committed on Board Aircraft (1963) Convention for the Suppression of Unlawful Seizure of Aircraft (1970) . to hunt suspected terrorists and share information. designed to cast a legal net around terrorism: 1207 (1999). calls on states to become parties to the different UN conventions against terrorism. Resolution 1373 binds member states of the UN to modify their national legislation to permit more effective surveillance and powers of arrest. There are also reporting obligations to the counter-terrorism machinery established within the UN system. engages in a regular dialogue with states and impresses on them the need to ratify these conventions.

theft and injurious use of nuclear material and plastic explosives. transfer. These two conventions criminalize attacks on targeted state officials and representatives and hostage-taking. These four Conventions criminalize violent and dangerous acts in an aircraft or at airports. These two conventions criminalize unlawful possession. • Convention on the Physical Protection of Nuclear Material (1988) • Convention on the Marking of Plastic Explosives (1991). • Convention for the Suppression of Unlawful Acts against Maritime Navigation (1988): outlaws seizure of a ship by force or acting to endanger its navigation . • Convention on the Prevention and Punishment of Attacks on Internationally Protected Persons (1973) • International Convention Against the Taking of Hostages (1979).• Convention for the Suppression of Unlawful Acts against Civil Aviation (1971) • Protocol for the Suppression of Unlawful Acts at Airports (1988).

deter and prevent bombers and use legal means of prosecution and extradition • International Convention for the Suppression of the Financing of Terrorism (1999): obliges states to prevent and counter act direct or indirect financing of terrorists • International Convention for the Suppression of Acts of Nuclear Terrorism (2005). . Negotiations for Comprehensive Convention at UN: Lack of Agreement Sharp disagreements have marked the negotiations since 1999 on the draft Comprehensive Convention on International Terrorism. Pakistan is a signatory to 11 of the 13 Conventions and Protocols (it has yet to sign the latter two listed above). and since. on aspects of the proposed articles that raised the traditionally controversial issues at the UN: the definition of terrorism and its relation to liberation movements and possible exemptions for the activities of armed forces.• Protocol for the Suppression of Unlawful Acts against Fixed Platforms on the Continental Shelf (1988) • International Convention for the Suppression of Terrorist Bombing (1997): obliges states to take precautions against bombing. but differences continued then. In 2002 the UN’s Ad-hoc Committee on Terrorism made considerable progress in agreeing on 27 articles of the draft Convention.

this will have a divisive effect and mire counter-terrorism efforts in controversy. So. especially to the draft article that proposes to exclude “armed forces” from the purview of the Convention. The conclusion of negotiations on this Convention remains blocked because of continuing objections from OIC countries including Pakistan.For a number of countries mostly from the OIC (Organization of the Islamic Conference) the definition issue has been of major concern. Major Muslim countries believe that excluding state terrorism from the Convention’s purview would indirectly legitimize suppression of struggles for self-determination and against foreign occupation. rather than armed forces . the argument goes. therefore there is no need to deal with this in the counter-terrorism context. the definition of terrorism should cover the actions of individuals and nonstate actors. how to define non-combatants. It would leave unsettled a number of issues which have long been the source of contention and historical debate at the UN: how to deal with situations of armed conflict where foreign occupation and alien domination persists. State Terrorism The concept of state terrorism has long been rejected by USled Western countries who argue that such actions by states have been criminalized in the Geneva Convention (IV) related to the Protection of Civilian Persons in the time of war. Pakistan’s position is that if a definition that is not backed by a solid consensus is incorporated. and how to regulate acts of terrorism committed by or on behalf of states in situations of suppression of legitimate struggles for selfdetermination and against foreign occupation.

and measures to deal with underlying or “root causes” of terrorism including foreign occupation. This view has also been endorsed by the UN Secretary General. Divergent views on evolving Global Strategy Similar underway at divergences the UN are also apparent on in the debate a General Assembly formulating “comprehensive” counter-terrorism strategy. In the deliberations on the report submitted by the UN Secretary General containing his recommendations for a global strategy. They disagree with the Secretary General’s suggestion to “set aside debates on so-called state terrorism”. Pakistan has pointed to a number of critical gaps. the phenomenon of state terrorism. Historically. but for many Muslim countries this remains a fundamental issue. a general consensus had emerged that all acts of deliberate violence against innocent civilians and other non-combatants . terrorism by states has dwarfed the acts of terrorism committed by non-state actors. during and after the 2005 Summit in New York. In Pakistan’s view.because the latter are bound by the rules of war and need not be covered by additional language prohibiting terrorism. The report focuses on the operational aspects of counterterrorism advocated by Western countries and contains some important proposals. Unless these are addressed the proposed strategy will neither be comprehensive nor effective in eliminating terrorism. which need to be addressed. But it does not address the issues of priority concern to the OIC countries: a clear definition of terrorism.

Addressing “Root Causes”: Divide between the West and the Muslim World Islamabad has also argued that the tendency in the Secretary General’s proposed strategy to ignore “root causes” is one that many states find unacceptable.should be condemned and outlawed as terrorism. Pakistan rejected as spurious the argument that acts of violence by a state’s military are already outlawed by international law. These contentious debates point to and reflect the divide between the West and Muslim countries in the context of countering terrorism. Instead Pakistan has taken the position that a state’s military should be subject to at least the same if not higher standards of accountability as those applied to nonstate groups that resort to terrorism. Yet agreement on a definition eluded the international community because states’ military forces were sought by Western nations to be included in the category of “non-combatants”. Their exclusion would create a situation of legal and political impunity that would enable states to use their military power for repression and occupation of people’s whose legitimate resistance would be de-legitimized as “terrorism”. To address “root causes” is not to justify terrorism but to understand and identify the means to overcome it. . Western countries and Muslim nations mean different things by “underlying factors”. This led to deadlock following vigorous objections by leading Muslim countries. regardless of their motivation or justification offered. The divergences extend to how “root causes” are conceptualized.

but they have yet to put out the fire. enforceable counter-terrorism strategy that differences become evident. social and economic marginalization. This effort must be informed over by what the recognition that continuing terrorism is disagreements this threat. foreign occupation. the media and of course the judicial and legal community – at both national and international levels. In galvanizing this effort. Challenge Ahead Therefore. as well as political. the challenge ahead is how to harmonize these positions to be able to evolve a consensus backed. Muslim countries identify as “root causes”. “extremist” ideology.The West generally takes a behavioural approach. lack of democracy in the Middle East and social and economic stagnation are among the primary factors conducive to terrorism. If the challenge appears too intimidating we need only to remind ourselves that so far the actions taken to combat terrorism may have doused the flames. actually constitutes forestalling more effective and cohesive collective action to combat . These polar views obscure several areas of agreement between the two. political leaders and diplomats must be joined by leaders of civil society. For most Western nations. but it is where the prime emphasis is placed in proposals for a comprehensive. while non Western nations take a structuralist view. political and economic injustice. rule-based comprehensive strategy to counter terrorism. denial of the right to self-determination.