In contemporary International Law the acts of terrorism have many complex legal dimensions. In the aftermath of the 9/11/2001 attacks in US, the debate on the terrorist status became more acute. The US government out rightly refused to recognise POW status to Al-Qaeda members. This was done by United States because according to the US authorities those terrorist fighters were neither lawful combatants nor civilians. It considered terrorists as unlawful combatants. It justified the detention in Guantanamo on this ground only. Therefore, the issue is that whether or not terrorists fall into the bracket of unlawful combatants which was not envisaged by the International Humanitarian Law Conventions.
In “the Public Committee against Torture in Israel, Palestinian Society for the Protection of Human Rights and the Environment v. the Government of Israel” the Supreme Court held that the terrorist do not fulfil the conditions for combatants therefore it is proper to say that they have no allotted emblem which can be recognised from a distance and also that they do not conduct their working in accordance with the customs and laws of war. The Israeli government wanted that the Court should declare that the terrorist falls into the category of unlawful combatants but the President A. Barak of the Supreme Court stated that in their opinion (Israel SC) there is no sufficient data for recognising a third category of unlawful combatants in the framework of The Hague and Geneva Conventions. It has also not been recognised by the Customary International Law.
In consonance with the decision of the Israel SC many scholars too believed that there is no third category in International Law. In international humanitarian law the person can either be a combatant or a civilian. Article 4 para 1 of the Geneva Convention – IV states that any person who finds himself in the hands of the other of which he is not a national will still be protected by this convention. This means that if a person fulfils the nationality criteria he will be protected under the Geneva Convention – IV even if he fails to fall under the Geneva Convention-III.
The same way human rights protection is also granted to the terrorists. No matter how gruesome or diabolical act a terrorist has committed basic human rights to him/her should not be denied. This is in consonance with human rights approach. UDHR, 1948 and ICCPR, 1966 gives many rights to an individual by virtue of being a human. These basic rights cannot be denied by any chance. Even in Indian cases like of terrorists like Yaqub Memon, Afzal Guru, Ajmal Kasab, they all were given basic minimum human rights such as right to fair trial despite they were responsible for so many terrorist activities in India. Human rights are basic tenets of individual autonomy. No doubt whenever there is a conflict between the individual and society rights, the individual rights have to be yielded. But proper safeguards and basic facilities like food, water, clothes, shelter should be provided by the State under whose prison such terrorists is bolted.
Terrorism poses a great challenge to the state’s very existence therefore many terrorists are not spared and well treated by the Government officials for example Guantanamo detainees. It is understandable that hatred is there within us for the terrorists and we should not have even slightest of mercy for them but we should also understand one thing that they are also the outcome of social and economic exploitation and thus by virtue of being humans they must be entitled to some basic human rights. Article 5,10 and 11 talks about the prohibition against inhuman/degrading treatment, right to fair trial and freedom from ex-post facto laws respectively.
Article 7, 10, 14, 15 too talks about freedom from inhuman treatment, right of detained to be treated with humanity, right to fair trial and non-retrospective application of criminal law respectively. Globalisation has advocated a new approach in which terrorists have also attained basic human rights and the countries have consented on this on international platform thereby resulting in effective and efficient International instruments of Human rights like UDHR, ICCPR, and ICESCR.
COMBATING OF TERRORISM
There were several International Conventions which some way or the other aimed at combating or reducing terrorist activities even prior to 9th September, 2001. Some of the most prominent among them were “the Tokyo Convention on Offences and Certain Acts Committed on Board Aircraft (1963), Hague Convention on Unlawful Seizure of Aircraft (1970), the International Convention against the Recruitment, Use, Financing and Training Mercenaries (adopted by General Assembly in 1989).”
Some others were too made to face the growing terrorism for example- “Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted by General Assembly of the United Nations on 14th December, 1973), International Convention against the Taking of Hostages (adopted by the UNGA on 17th December, 1979), International Convention for the Suppression of Terrorist Bombings (adopted by UNGA on 9th December, 1997), International Convention for the Suppression of the Financing of Terrorism (adopted by UNGA on 9th December, 1999), International Convention for the Suppression of Acts of Nuclear Terrorism New York, 13th April 2005 etc.”
The United Nations role is to maintain international peace and security. It is also one of the purposes stated in Article 1(1). Article 1(1) of the UN Charter states that UN has “to maintain international peace and security” by taking “effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other breaches of the peace and also to bring about by peaceful means, in conformity with principles of justice and International Law the settlement of international disputes.”
The UNGA (United Nations General Assembly) in 1994 condemned all acts, practices and methods of “terrorism as criminal and unreasonable” wherever it is committed and by whomsoever it is committed. It also includes those which risk the very amiable relations among peoples, states and “thereby threaten the territorial integrity and security of states.” UNGA also noted that that the States should refrain themselves from “instigating, organising, facilitating, financing, encouraging or tolerating terrorist related activities.”
The UN Millennium Summit Declaration too upheld the immediate need for the prevention and eradication of International Terrorism. The 9/11/2001 attack shook the world and after the strike on World Trade Centre and Pentagon, there was a huge consensus among the UN members for developing International legal framework for proper tackling of this global terrorism. The UNSC (United Nations Security Council) just after this 9/11 attack passed the Resolution 1373 under “Chapter VII (Action with respect to threats to peace, breaches of peace and acts of aggression)” of the UN on 28th September 2001.
The obligations on member states
The Resolution press several duties on the member states including efforts:
- “To suppress and prevent financing of terrorist acts.
- To criminalize the wilful provision/collection by any means of funds by their nationals or in their territories.
- To freeze without delay the financial assets, funds, economic resources of persons committing/participating in the commission/facilitating commission of terrorist acts.”
Apart from international instruments many regional instruments like “Arab Convention on the Suppression of Terrorism (1998), Convention of the Organisation of the Islamic Conference on Combating International Terrorism (1999), European Convention on the Suppression of Terrorism (1977), SAARC Regional Convention on Suppression of Terrorism (1987)” were also adopted to combat terrorism. The need of the hour is incorporation of the principles of these conventions in the domestic laws of the country and making them implement smoothly so that they can attain the objective with which they were passed. This is the only method which can help in combating the terrorism and bring about international as well as national peace and security
Terrorism is the most gruesome and barbaric act. It defeats the basic morale of the existing civilisation. It doesn’t differentiate between who are the targets and who possibly will be affected by this deadly act. Terrorist attack anywhere in the world shook the world. Media and technology has brought people of the world together. The attacks in France or the ambassador killed in Russia too brought the people of the world together against terrorism. But this creates a sense of fear among everyone. No matter what patriotic day comes the security forces in India and other nations becomes tight in order to curb the possible terrorist attack. There is always a threat among people, we hardly talk to anyone these days since we suspect that anyone can be terrorist these days.
Many factors like state sponsored terrorism, political instability, unemployment, illiteracy and fanaticism acts as an obstruction in prevention of terrorism. In the end let us pledge together that no matter how hard the situation becomes we will hold our hands and stay together in this globalised world. Let us hope that a day will come when justice will prevail and we will have a happy global village where no disease of terrorism would be in existence and only prosperity would prevail in the international arena.
Author’s Name: Muskan Sethi (University of Petroleum and Energy Studies, Dehradun)
 Anthony Dworkin, Crimes of War Project.
ILDC 597 (IL 2006).
Universal Declaration of Human Rights, 1948.
International covenant of Civil and Political Rights, 1966.
United Nations Charter, 1945.
 United Nations Charter,1945.
 Omprakash Mishra and SuchetaGhosh (Eds.), Terrorism and Low Intensity Conflict on South Asian Region 190-193 (Manak Publications, New Delhi, 2003).