National Security

Law-Terrorism

Terrorism & Human Rights

Violation
Introduction to terrorism

– The study of terrorism as a separate and distinct subject began in the late 1960s
and early 1970s. Prior to this, political violence by state or non-state actors was
studied as part of war, insurgency, repression, revolution and the acts of
terrorism were described simply as bombing, kidnapping, hijackings,
assassinations and so on.
– From 1970s onwards, this field of study began to grow steadily. A group of
recognised scholars soon emerged as ‘terror experts’, conferences were held,
new research centres and a body of literature was established.
̶ The field received another significant boost in a second wave of research
following the 9/11 terror attacks when 100s of scholars turned their
attention to the study of terrorism as a way of aiding efforts to try and
prevent further such attacks.

̶ Before 9/11 at least, most writers on terrorism recognized that the

physical threat posed by terrorism was dwarfed by other frequent
dangers. Despite that, ordinary people or their political representatives
were less inclined to minimize the threat or put it in perspective.

̶ Often urged on by a mass media that magnified the public danger,

politicians tried to answer the implicit or explicit call for protective action.
That action was, however, usually inconsistent and episodic. 9/11 attacks
called for more than this.

̶ As the dust settled, literally and figuratively, on Ground Zero, most of the
questions that had always formed the puzzle of terrorism remained. If
anything, the indefinite reach of President Bush’s ‘war against terror’
underlined more sharply than Terrorism ever the need for some definition
– or compartmentalization – of this manipulative term.
Meaning of Terrorism

– The term ‘terrorism’ comes from the French word ‘terrorisme’ which is based on
the latin verb ‘terrere’ meaning ‘to cause to tremble.’
– The Encyclopedia Britannica defines terrorism as the systematic use of violence
to create a general climate of fear in a population and thereby to bring about
particular political objectives. Terrorism is violence or other harmful acts
committed (or threatened) against civilians for political or other ideological goals.
– The European Union defines terrorism as an act with the aim of “destabilising or
destroying the fundamental political, constitutional, economic or social structures
of a country.”
̶ The Code of Federal Bureau of Investigation (FBI) of USA has defined
terrorism as “the unlawful use of force and violence against persons or
property to intimidate or coerce a Government, a civilian population or
any segment, in furtherance of political or social objectives.”

̶ The FBI further describes terrorism as either domestic or international

depending on the origin, base, and objectives of the terrorists.

̶ There are more than 100 definitions of the word ‘terrorism’; these
definitions are used by United Nations Organisation (UNO), the
European Union, United States and other countries and it is believed
that the modern definition of terrorism is inherently controversial.

̶ The United Nations states that “the question of a definition of terrorism

has haunted the debate among states for decades.” A first attempt to
arrive at an internationally acceptable definition was made under the
League of Nations, but the convention drafted in 1937 never came into
existence. The UN Member States still have not agreed upon a
definition. The lack of agreement on a definition of terrorism has been a
major obstacle to meaningful international counter measures.
Variables of Terrorism

– Violence: Terrorism is premised on the violent attack on life and security of human
beings. It encompasses the conventional criminal offences of murder, assault, rape and
kidnapping. Implicitly, it is not about property offences or about voluntary victimless
offences such as prostitution, gambling or drugs.
– The Required Intention: The official definitions of terrorism seem to focus very heavily
on the element of intention. The language typically follows the federal statutory
definition ‘to intimidate or coerce a civilian population, [or] to influence the policy of
government by intimidation or coercion’. Similar language is found in the 2004 UN
Security Council Resolution 1566: the purpose of terrorism must be to ‘intimidate a
population or compel a government or an international organization to do or to
abstain from doing any act’.
̶ The Victims: Most definitions of terrorism stress that the victims must
either be civilians or innocent persons. For example, the International
Convention for the Suppression of the Financing of Terrorism, adopted by
the General Assembly of the UN in 1999, defines terrorism, in part, as an
act ‘intended to cause death or serious bodily injury to a civilian’.

̶ The Wrongdoers: If there is some ambiguity about the range of victims in

the crime of terrorism, there is a parallel problem on the defendant’s
side of the action. Once more the problem juxtaposes private actors
against the state. In the classic cases, terrorists are fighters outside the
military command structure. But they may often have links with
governments that provide financing or moral support.

̶ Just Cause: The most controversial issue in the definition of terrorism is

captured by slogan: ‘One person’s terrorist is another’s freedom fighter’.
The problem is whether a good cause justifies the use of horrendous
means. Those who opt for terror always believe their cause is just.

̶ Organization: As adherents to principles of human rights and non-

discrimination, we naturally shy away from this factor in analyzing
terrorism. The underlying sensibility probably is the fear that the linkage
would lead to profiling and unjust prejudice.
̶ Theatre: The Internet contains dozens of definitions of
terrorism, but one stands out from among all the legalistic
efforts to reduce the concept to necessary and sufficient
conditions. In the 1970s, one Brian Jenkins captured the
phenomenon in a single word. Terrorism, he said, is theatre. You
should not expect to find that definition in a federal statute or
regulation, but nonetheless there is a lot of truth to the claim.
Terrorism always has a theatrical aspect. Effective terrorism is
always a dramatic event that captures headlines for long
periods. It is unexpected, with great shock value. The element of
surprise is critical, which explains why terrorists do not drop
leaflets and issue ultimatums in advance.

̶ No Guilt, No Regrets: Terrorism depends on the fear of

repetition, either from the agent who has already struck or from
his associates committed to the same cause. The element of
organization contributes to these fears. Also relevant is the
perception of the terrorist as someone who acts without feeling
guilt or remorse.
Dilemma of Defining Terrorism

– Both political and academic efforts to get to grips with terrorism have repeatedly
been hung up on the issue of definition, of distinguishing terrorism from criminal
violence or military action. Most writers have no trouble compiling a list of legal or
other definitions running into dozens, and then adding their own to it.
– In a word, terrorism is labelling because ‘terrorist’ is a description that has almost
never been voluntarily adopted by anyone themselves. It is applied to them by
others, first and foremost by the governments of the states they attack.
– States have not been slow to brand violent opponents with this title, with its clear
implications of inhumanity, criminality, and – perhaps most crucially – lack of real
political support.
Two Ambitions for the Definition of
Terrorism
– The definition of terrorism should meet two ambitions. One is that it
corresponds reasonably closely to the moral idea of terrorism. The definition of
terrorism ought not to label as terrorists those whom the label does not fit.
– The other ambition is that the definition is fit for purpose: that it appropriately
triggers the use of terrorism law. The body of terrorism law consists of an
extended set of state powers that apply where terrorism is concerned.
Dilemmas for the Development of the
Definition
– Developing a definition of terrorism requires us to identify and resolve a
number of distinct dilemmas. These include the following:
– The Terrorist Purpose: Is terrorism restricted to the pursuit of certain goals, for
example, political goals? If so, is any political goal sufficient to amount to a
terrorist purpose? Are nonpolitical goals sufficient for a terrorist purpose? And
could there be acts of terrorism that lack any particular goal?
– The Terrorist Target: Can anyone be a target of a terrorist action? Are terrorist
actions restricted to attacks on noncombatants, and if so, how do we define
‘‘combatant’’? Or can combatants in an armed conflict be terrorist targets?
̶ The Terrorist Action: What kinds of act count as acts of terrorism? Should we
include only acts that kill or cause serious injury, or should we also include
damage to property, or threats to do any of these things?

̶ The Terrorist Method: Do terrorist acts need to relate to the pursuit of the
terrorist purpose in particular ways? Is terror central to terrorism, or can acts
that neither terrorize nor intimidate people be acts of terrorism?

̶ The Terrorist Agent: Can anyone commit an act of terrorism? Do terrorists

always act in groups, or can individuals acting alone be terrorists? Can a state,
or its representatives, commit acts of terrorism?

̶ In aiming to resolve these dilemmas we must keep the two ambitions for the
definition of terrorism in mind.

̶ In Madan Singh v. State of Bihar (2004) 4 SCC 622 the expression “Terrorism”
was observed to be “The peacetime equivalent of war crimes” as stated by a
noted United Nations official, Dr. Alex P. Schmid. It represents a clear and
present danger to the country and the rule of law. It needs no emphasis that
rule of law is the antithesis of violence and anarchy.
Human Rights of Terrorists

– In 2004, India took a significant step forward for human rights by repealing the
Prevention of Terrorism Act (POTA) of 2002, which had established a permissive set of
legal rules to prosecute acts of terrorism largely outside the ordinary rules of the
regular criminal justice system. While POTA itself was enacted in the aftermath of the
major terrorist attacks of 2001 in both the United States and India, the statute built
upon a long tradition of anti-terrorism and other security laws in India dating since well
before independence.
– Moreover, like antiterrorism laws in other countries, including the United States,
aspects of India’s anti-terrorism laws have raised significant human rights concerns.
Some of those concerns have remained even in the aftermath of POTA’s repeal, since
the Indian government has preserved many of the law’s provisions in other statutes.
Do Terrorists deserve Human Rights?

– Human rights, with all its limitations, provide a tool to interrogate the barbarism
of power. It is to be used as a tool for emancipation from want, oppression and
torture.
– Conor Gearty in his book “Terrorism and Human Rights” states that the idea of
human rights is a radical, emancipatory one. It should always be on the side of
the underdog, perpetually trying to force an invisible individual or groups of
individuals into public view, giving them a language with which to shout for
attention, then having secured it to demand an end to suffering and a better set
of life chances.
̶ Terrorism aims at the very destruction of human rights, democracy
and the rule of law. It attacks the values that lie at the heart of the
Charter of the United Nations and other international instruments:
respect for human rights; the rule of law; rules governing armed
conflict and the protection of civilians; tolerance among peoples
and nations; and the peaceful resolution of conflict.
Arguments in Favour of Human
Rights of Terrorists
– In a society marred by terrorism, the free enjoyment of human rights becomes
restricted and the societal right to peace and orderly conduct gains more
importance, but in the process, individual rights cannot be totally ignored.
– It is noteworthy here that the Constitution of India does not discriminate
between a prisoner, a terrorist, and an ordinary person, everybody is equally
entitled to protection of his or her personal liberty.
– Every person accused of an offence is entitled to remain silent and to be
protected from torture. This is apart from various other protections that have
been given to accused persons, including terrorists.
̶ The solution to the problem of terrorism lies in eradicating the
root causes of terrorism and working for overall development,
creation of new avenues of employment, amnesty to those who
have chosen the wrong path of terrorism, remedial measured in
the form of restoring faith in democratic institutions.

̶ It must be remembered that the use of force cannot completely

eradicate the menace of terrorism; rather, it seriously dents the
human rights of individuals in the society. Respect for human
rights of all must be ensured.

̶ The law enforcements agencies should be equipped with

scientific modes of investigation, so that they do not resort to
force. It must be ensured that police training in counter-
terrorism operations includes respecting due process, non-
discrimination, and humane treatment.
Arguments against Human Rights of
Terrorists
– Terrorism is itself an extreme denial of the most basic human right, namely, the right to life;
it creates an environment in which people cannot live in freedom from fear and enjoy their
other rights
– Secondly, the threat of terrorism can be used by governments to enact laws that strip away
many civil liberties and political freedom.
– Without necessarily amending laws or enacting new ones, governments can use the need to
fight terrorism as an alibi to stifle dissent and criticism and imprison or threaten domestic
opponents.
– The basic pillars of a modern state, such as democracy, state security, rule of law, sovereignty
and integrity and basic human rights are under attack by terrorism. It has a disproportionate
impact on communities and is corrosive of the very fabric of society.
̶ The greatest threat at the hands of terrorists is to the right to life
and personal liberty, which are the most fundamental of all rights.
Killings, rapes, bomb blasts, attacks on institutions of democracy are
used to terrorize people and to shake the credibility of the
government and law enforcement agencies.

̶ Apart from the threat to security, stability, national integration of

the country, various other human rights threats are posed by the
terrorists, including: threat to life and personal liberties; threat to
various freedoms, including freedom of expression, freedom to form
associations; threat to human rights in the form of torture; threat to
economic, social, cultural, and religious rights.
War on Terrorism and Human Rights

– The tragic events of 9/11 attacks have strengthened the attitude of human
rights violation. As the March 2005 National Defense Strategy states, and in a
bizarre juxtaposition of factors: "Our strength as a nation will continue to be
challenged by those who employ a strategy of the weak using international fora,
judicial processes and terrorism.
– Five or more years on from that terrorist attack, we have all become familiar
with persistent US executive branch attempts to circumvent, over turn, or adapt
core principles of human rights law, or the laws of war. However, familiarity
cannot conceal the sweeping nature of that attack on what have long been
regarded as the core legal rights of the persons.
̶ The Bush administration has circumscribed the meaning of what has come to
be regarded as torture, it has denied a proper legal status for detainees and
prisoners held at Guantanamo Bay and in Afghanistan and has undercut
another central plank of the Geneva Conventions when in May 2006 it refused
to allow the International Committee of the Red Cross (ICRC) to have access to
terrorist suspects held in secret locations.

̶ But even if they have been temporarily emptied, the inmates sent to
Guantanamo, and the ICRC at last given access to these prisoners, the prisons
themselves have not been closed down. As places of detention, CIA
interrogators remain unconstrained in terms of the methods they may adopt,
George W. Bush using his executive power to ensure this outcome.

̶ President Bush stated that the Geneva Conventions did not apply either to al
Qaeda or Taliban detainees, adding that except as a matter of policy and thus
not as a matter of law those imprisoned would be treated humanely.

̶ Detention without trial, arbitrary arrest, disappearance, torture and the like
soon result once a political authority decides to describe a conflict in which it is
involved as war. National or regime security takes center stage, security
ideologies play a stronger role, and the means employed push at the
boundaries of the acceptable.
̶ Such violations of human rights neither helped to stir the conscience
of human rights advocates nor helped to move powerful nations in
the world. But any use of state firepower by the armed forces
resulting in deaths would invariably attract condemnation from these
very groups.

̶ This is not to condone the misuse of coercive power by the armed

forces or police but only to point out the double standards often
adopted by the human rights advocates and powerful western nations
in the world.

̶ Assistant Secretary General, Giandomenico Picco wrote in 1993:

“Terrorism is a criminal in manifestation of intolerance. Appeasement
to intolerance has always bode - ill for humanity. A criminal
manifestation of intolerance has to be addressed with speed,
steadfastness and determination. But to be credible and effective, it
has to be consistent ... intolerance anywhere has to be tackled with
determination and courage. If we demonstrate consistency, the
number of those who will join the effort will grow larger, thus reducing
opposition.”

̶ The problem is, therefore, one of accepting unreservedly that

terrorism cannot be an instrument of state policy.