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

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

It is important to recall that the 2005 World Summit resolution, approved by the high-level plenary meeting of the UN General Assembly in September 2005, called for international cooperation to fight terrorism to be conducted in conformity with international law, 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, in particular human rights law, refugee law and international humanitarian law. As the Berlin Declaration, adopted in 2004 by the International Commission of Jurists (ICJ), asserted, safeguarding persons from terrorist acts and respecting human rights both form part of a seamless web of protection incumbent upon the state. The ICJs 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, refugee law and where applicable, humanitarian law. Several intergovernmental bodies and regional organizations such as the Council of Europe and the Organization of American States (OAS), have adopted treaties or guidelines that affirm the importance of defending human rights in the struggle against terrorism. 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. For example, in a recent landmark judgment, the US Supreme Court ruled (in Hamdan v Rumsfeld) that the executives authority to try terrorist detainees, held at Guantanamo Bay, in specially organized military commissions, violated US and international law embodied in the Geneva Conventions.

Similarly the House of Lords, Britains highest court, have ruled more than once, that the executives counter-terrorism actions must be bound by law. 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. In another case the House of Lords rejected the governments contention that it could use information obtained by torture by foreign governments as evidence in UK courts. 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. But disagreements continue on key issues: on a definition of terrorism, on the distinction between terrorism and legitimate resistance against foreign occupation or for self-determination, and the use of force against civilians by states armed forces in armed conflicts. I will return to these vexed issues later. Although an internationally agreed legal definition of terrorism continues to defy a consensus, this has not prevented progress in the adoption of legal and operational measures to combat various aspects of terrorism. A number of important steps have been taken to provide a legal basis for common actions against the spread of terrorism. Between 1963 and 2005, 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. Several Security Council resolutions have also been adopted, before and after

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

Convention for the Suppression of Unlawful Acts against Civil Aviation (1971)

Protocol for the Suppression of Unlawful Acts at Airports (1988).

These four Conventions criminalize violent and dangerous acts in an aircraft or at airports. Convention on the Prevention and Punishment of Attacks on Internationally Protected Persons (1973) International Convention Against the Taking of Hostages (1979).

These two conventions criminalize attacks on targeted state officials and representatives and hostage-taking. Convention on the Physical Protection of Nuclear Material (1988) Convention on the Marking of Plastic Explosives (1991).

These two conventions criminalize unlawful possession, transfer, theft and injurious use of nuclear material and plastic explosives. Convention for the Suppression of Unlawful Acts against Maritime Navigation (1988): outlaws seizure of a ship by force or acting to endanger its navigation

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, 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).

Pakistan is a signatory to 11 of the 13 Conventions and Protocols (it has yet to sign the latter two listed above). 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. In 2002 the UNs Ad-hoc Committee on Terrorism made considerable progress in agreeing on 27 articles of the draft Convention, but differences continued then, 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.

For a number of countries mostly from the OIC (Organization of the Islamic Conference) the definition issue has been of major concern. Pakistans position is that if a definition that is not backed by a solid consensus is incorporated, this will have a divisive effect and mire counter-terrorism efforts in controversy. 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, how to define non-combatants, 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. The conclusion of negotiations on this Convention remains blocked because of continuing objections from OIC countries including Pakistan, especially to the draft article that proposes to exclude armed forces from the purview of the Convention. Major Muslim countries believe that excluding state terrorism from the Conventions purview would indirectly legitimize suppression of struggles for self-determination and against foreign occupation. 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, therefore there is no need to deal with this in the counter-terrorism context. So, the argument goes, the definition of terrorism should cover the actions of individuals and nonstate actors, rather than armed forces

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

should be condemned and outlawed as terrorism, regardless of their motivation or justification offered. 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. This led to deadlock following vigorous objections by leading Muslim countries. Pakistan rejected as spurious the argument that acts of violence by a states military are already outlawed by international law. Instead Pakistan has taken the position that a states 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. 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 peoples whose legitimate resistance would be de-legitimized as terrorism. Addressing Root Causes: Divide between the West and the Muslim World Islamabad has also argued that the tendency in the Secretary Generals proposed strategy to ignore root causes is one that many states find unacceptable. To address root causes is not to justify terrorism but to understand and identify the means to overcome it. These contentious debates point to and reflect the divide between the West and Muslim countries in the context of countering terrorism. The divergences extend to how root causes are conceptualized. Western countries and Muslim nations mean different things by underlying factors.

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

forestalling more effective and cohesive collective action to combat