TERRORISM Kill one frighten thousand Sun Tzu Mian

TERRORISM “Kill one, frighten thousand. ” Sun Tzu Mian Ali Haider L. L. B. , L. L. M(Cum Laude) U. K.

How has Terrorism been Defined? US Department of Defence: “The calculated use of violence or the threat of violence to inculcate fear intended to coerce or intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological” n Home Office proposal: “serious violence against persons or property, or the threat to use such violence … for political, religious or ideological ends” (including damage against property) n Walter Laqueur: “Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targeted” n

Basic Concepts “Courage is not the absence of fear, but being able to do what is right in the presence of it. ”

TERRORISM DEFINED “The unlawful use of force against persons or property to intimidate or coerce a government, civilian population, or any segment thereof, in the furtherance of political or social objectives. ”

The three common elements of terrorist acts: q q q Illegal use of force Intended to intimidate or coerce Support of political/ social objectives

POTENTIAL TARGETS q q q Government facilities Public assembly buildings Mass transit systems Telecommunications Symbolic Sites

Problems of Definition n n Core: “The use or the threat of the use of violence in order to achieve political aims” Are terrorists only non-state groups? – authoritarian regimes using methods; state sponsorship – Is it legitimate for states to violence without moral restraint? Non-combatants: is targeting non-combatants legitimate ? – Hamas tries to justify targeting Israeli civilians because they are all ‘conscripts’… Threats: do threats alone terrorise? “Terrorists want a lot of people watching, but not a lot of people dead” (B. Jenkins) – True of left-wing terrorism, it was not of right-wing terrorism, and ‘religious’ terrorism – Visibility is a key aim of political impact, and use of fear

Terrorism and Ideology… n Conceptual difficulties – Guelke: definition has become so elastic it can include anything… – Who defines what legitimate violence is, and using what criteria? Political Manipulation n The label terrorist makes a political group illegitimate and an acceptable target for violent repression n – Nelson Mandela’s ANC was labelled terrorist n A freedom fighter can later be a terrorist – E. g. Bin Laden – Afghan resistance to USSR vs. al-Qaeda n Most states secured their existence using terrorist means at some point! E. g. Decolonisation…

Terrorist movements in recent history n Left-wing groups: Red Army Faction (Germany), Red Brigades (Italy), Action Directe (France), Japanese Red Army (Japan), Revolutionary Armed Forces of Colombia (FARC, Colombia) n Right-wing groups: Ku Klux Klan, Aryan Nations, The Order (USA), Combat 18 (UK) n Some groups are better defined by the territorial disputes they are engaged in: PLO (1970 s), Popular Front for the Liberation of Palestine vs. Kach and Kahane Chai (Israel and United States), or IRA/PIRA vs. Ulster Volunteer Force, Ulster Defence Association, LTTE (Sri Lanka)

Traditional Responses to Terrorism I Security/Intelligence: n police and security organisations - n ‘target hardening’: making state objectives harder to hit – – – infiltrate organisations to gather intelligence infiltrate and monitor related non-violent organisations intercepting communications & mass surveillance – usually results in targeting of ‘soft’ objectives… n ‘hard line’: often first phase of state response, with security forces legally/illegally using means of violence – e. g. ‘pre-emptive neutralisation’, Israel’s policy of ‘targeted assassination’ in the Occupied Territories – this usually provokes escalation of conflict

Traditional Responses to Terrorism II Legal & Political: security-driven responses are usually not sufficient and often counter-productive n put in place legal instruments facilitating ‘defection’ n political negotiation or reform concerning underlying issues has been key to resolving conflict n § 1. bring terrorists to negotiating table; § 2. drain support from sympathisers as their grievances appear to be addressed (=’mainstreaming’ politics) – e. g. Red Brigades in Italy, IRA/N. Ireland, PLO in Palestine, ETA in Spain

Terrorism and (Organised) Crime n Terrorist suspects in Guantanamo Bay are not benefiting from Geneva Conventions because they are ‘criminals’, not ‘soldiers’…Thus, what is the relationship between crime and terrorism? n Terrorism is illegal… But is it immoral? – Terrorist groups frame themselves as fighting an unjust ‘system’. – Occasionally they are convincing (Apartheid)… n Crime to fund activities? arms smuggling; drug trafficking; or racketeering… – E. g. Provisional IRA, GIA (Algeria), Sendero Luminoso (Peru), FARC (Columbia) n Sometimes, criminals use terror tactics…Narcoterrorism - terrorist-type attacks against anti-narcotics police. E. g. Pablo Escobar's (Medellin Cartel) in Columbia.

State sponsors and ‘rogue states’ n State terrorism: Judge B. Garzón – “…a political system whose rule of recognition permits and/or imposes a clandestine, unpredictable, and diffuse application, even regarding clearly innocent people, of coercive means prohibited by the proclaimed judicial ordinance. " – Is authoritarianism terrorism? n State-sponsored terrorism: The funding and/or supplying of terrorist groups by states. – Iran: ‘exporting the revolution’ in the 1980 s, Hezbollah – USA: Overthrowing Mossadeq in Iran; supporting Pinochet in Chile; Grenada; sponsoring the Contras against the Sandinistas in Nicaragua; etc. n Rogues States and WMDs: a state that refuses to play by the rules of the game? Current definitions emphasise sponsoring of terrorism and WMDs…

Dilemmas of the War on Terror security, intelligence, & military crackdown as core response: e. g. Afghanistan – Enormous pressure to show ‘strength’ in response to 9/11… – Ignores the political grievances of these movements… § Despite the successful European experience of political solutions! – Can terrorism be defeated by force, does it create new recruits? n Political initiatives: US: traditional and cultural diplomacy to secure allies (9/11 exhibition) n Legal: Civil liberties – E. g. USA: Patriot Act, Guantanamo Bay and torture scandals – Dilemma of choosing between ‘personal freedom’ and ‘security’…, Pakistan’s Anti- Terrorism Act, 1997. , U. K’s Terrorism Act, 2000 & 2006. – ME authoritarian states have been encouraged to crack down on any opposition they consider terrorist! n

Dilemmas of the War on Terror II n Economic – threats and incentives in the security council to secure support for the war in Iraq – Lack of support in the Global South could mean trade and aid disaster – Postwar Iraq contracts to supporters! – No fundamental change in economic relationship. What are the reasons for this ‘new wave’ of terrorism? …Responses to ‘imperialism’? n The answer to above is available only in Legal response. n

Pakistan’s Role in Countering Terrorism n In 2006, in Pakistan 657 terrorist attacks, including 41 of sectarian nature were perpetrated, leaving 907 people dead and 1, 543 others injured ‘Pak Institute for Peace Studies’ n Pakistan is signatory to 11 United Nations Counter Terrorism conventions

Pakistan’s Role in Countering Terrorism n Pakistan has signed extradition treaties with thirty countries n Enhancing cooperating with ASEAN Regional Forum n Cooperating with coalition partners in Afghanistan

Pakistan’s Role in Countering Terrorism n Captured more terrorists, especially over 600 linked with Al-Qaida n Committed some 80, 000 troops along its Western Borders n Pakistan has so far lost ………. . personnel in counter terrorist operations in areas close to Pakistan – Afghanistan Border

Future Security Challenges / Issues n Extremism – At the national and international levels, unjust economic, social and political systems which really spawn violations of economic, social, cultural, civil and political rights, contribute to the birth and nurturing of extremism which ultimately leads to terrorism

Future Security Challenges / Issues n Extremism – To break the synergy between politicoreligious extremism, major powers should avoid the double standards, discriminatory approach, intolerance, unwillingness to compromise

Future Security Challenges / Issues n Role of Non State Actors – pursue their own agenda, protect their own interests and have loyalties only to themselves, hence further complicate the global security environment

Future Security Challenges / Issues n Role of Media – Media through focus on violence can negatively contribute to conflict escalation and distort the public's perceptions of the situation – Where it can accrue, if managed adroitly, numerous advantages, it can be an effective propaganda tool in the hands of terrorists which they will use for both tactical and

This is heavy stuff, time for a break. . be back in ten minutes.

Pakistan’s Legal Response to Terrorism. n CONCEPTUALLY, anti-terrorism laws usually include specific amendments allowing the state to bypass its own legislations when fighting terrorismrelated crimes, on the grounds of necessity. Because of this suspension of regular procedure, critics often allege that antiterrorism legislation endangers democracy by creating a state of exception that allows an authoritarian style of government.

Pakistani Experimentation Suppression of Terrorist Activities Ordinance 1975 enacted by Z. A. Bhutto, which remained in force in Sindh and Punjab until its repeal in 1997. It remained the law in then NWFP and Balochistan until August 2001. n Another law giving wide-ranging powers to the army to curb violent activities was the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998, initially applied to Sindh. Since this law was passed in the aftermath of the army operations in Karachi, the ordinance granted broad judicial powers to the military. It also created the new crime of “civil commotion”. n On Jan 30, 1999, the Pakistan Armed Forces Ordinance of 1998 was extended to the entire country. It was also amended to enable absconders to be tried in absentia by any military court. Many constitutional petitions challenging the validity of the ordinance were filed, resulting in the landmark judgment Liaquat Hussain versus Federation of Pakistan on Feb 22, 1999. The Supreme Court declared the ordinance “unconstitutional, without legal authority, and with no legal effect”. n

Experimentation Continues The Anti-Terrorism Act was signed on Aug 17, 1997. It created special anti-terrorism courts (ATCs) as well as an anti-terrorism appellate tribunal which was to be a court of appeal for verdicts handed down by ATCs. The 1997 act very broadly defined “terrorism” as murder, malicious insult of religious beliefs, the use of derogatory remarks with respect to holy personages, kidnapping and various statutes relating to “robbery and dacoity”. n It was clear from the outset that the wide-ranging definition of terrorism would become a widely abused device, and also cause crimes registered under the Anti-Terrorism Act to go up, thus increasing the workload of the ATCs. The Supreme Court later declared most of the provisions of the 1997 anti-terrorism act unconstitutional. n The Oct 24, 1998 Anti-Terrorism (Amendment) Ordinance attempted to respond to most of the Supreme Court’s objections. n

On Aug 27, 1999, amendment to the act authorised ATCs for the entire country. Another two amendments in December that year extended the schedule of offences to include several other provisions of Pakistan’s criminal code. It was envisaged in the original act that investigations would be completed within one week, and ATC trials would not take longer than seven working days; this principle faded away. n Another amendment on Aug 15, 2001 further expanded the ambit of terrorism. The government was by now recognising that terrorist organisations were conspiring against the state. Special provisions were introduced giving powers to the government to proscribe an organisation if it had “reason to believe that the organisation is concerned with terrorism”. n

n On Jan 30, 2002, another amendment, the Anti- Terrorism (Amendment) Ordinance, 2002, was introduced, with the aim to speed up the judicial process. Yet another amendment, Anti. Terrorism (Second Amendment) Ordinance, 2002, gave police the power to detain anyone listed on the government’s ‘terrorism list’ for up to one year without filing specific criminal charges. n When the spectre of suicide bombers began to rear its head, further amendments to the ATA of 1997 were made in November 2004. The maximum jail term for supporters of militants was increased from 14 years to life imprisonment. Victims and theirs obtained the right to appeal against the acquittal of the accused by an anti-terrorist court. Another amendment to the Anti-Terrorism Act authorised government officials to seize the passport of anyone charged under the law. The Anti-Terrorism (Second Amendment) Act on Jan 10, 2005 enhanced the minimum and maximum punishment for acts of terrorism. It also enhanced the jurisdiction of the ATCs so that cases of abduction and kidnapping for ransom, the use of explosives in places of worship and court premises could be exclusively tried by them.

In the aftermath of the Lal Masjid incident, the definition of terrorism was expanded by including attack on government premises, official installations, schools, hospitals and other public property through an amendment in 2009. n Drawing lessons from the Swat insurgency, any groups or organisations (not recognized by the law) that took the law into their own hands were also recognised as perpetrators of acts of terror. To stop the trend of changing the nom de guerre of an organisation, whence the same office-bearers make a new entity with a different name, the government also got the power to ban the new organisation which ‘sprang’ from the old one, to freeze its accounts and to forbid its office-bearers from obtaining a passport and travelling abroad. . n Preventive detention was also introduced by which a person could be kept in detention for 90 days without this being challenged in court. To keep the accused in custody the right of bail was withdrawn. n

n No, we still want to do more experiments.

U. S. A. , U. K. Legal response to terrorism n Now some,

n n n n The US reacted quickly after 9/11 Numerous significant policy changes Creation of Department of Homeland Security Robust military response, including the largest sustained call-up of Reserve and National Guard forces in US history EU has struck a balance between national and pan. European policy Each EU member state is responsible for the security of its citizens The EU has responsibility for coordinating these activities effectively

U. S. Major Legislations n n n n n AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION ACT (2001) Passed less than one week after 9/11 Purpose was to protect airlines from ruinous lawsuits Provided an administrative remedy for victims and families through the office of “special master” [Kenneth R. Feinberg] established to consider claims and determine awards out of the September 11 Fund, also created by the Act TERRORISM RISK INSURANCE ACT (2002) Attempts to protect insurance companies from catastrophic claims in the event of another large-scale terrorist attack “A system of shared public and private compensation for insured losses resulting from acts of terrorism. ” No victims other than 9/11 victims have ever been successfully included in the such protective legislation, including 1993 WTC bombing, 1998 East Africa Embassy bombings, 2000 USS Cole attack, even though several attempts to include them have been made

n PATRIOT ACT (OCT. 26, 2001), or The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 Primarily a collection of changes to existing laws, for example: n Telemarketing Consumer Fraud and Abuse Prevention Act [to hinder fundraising] n Racketeer Influenced and Corrupt Organizations Act (RICO) [to prevent money laundering and permit expanded wiretapping, surveillance of email] n Reauthorized March 9, 2006 n

Effects of Legislations n n n Library records: Aimed at patron internet usage, previously required a subpoena, PA permitted the use of search warrants to obtain information Tracking of financial data: welcomed by financial institutions INS: closer tracking of those here on student visas Scientists: Background checks to obtain access to material on a newly-expanded toxin list Truck drivers: fingerprinting those with HAZMAT certification Internet: permits access to ISP records on Web traffic, not content Data sharing with law enforcement agencies: Requires court order Major provisions have been thoroughly reviewed by courts 401 criminal charges brought under PA, 212 convictions Broke up terror cells in Buffalo, Detroit, Seattle, Portland (Ore. ) and northern Virginia Frozen $136 M in assets around the world

n n n n HOMELAND SECURITY ACT (2002) Created Dept. of Homeland Security: to reduce vulnerability of US to terrorist attacks at home, minimize damage and improve recovery from terrorist attacks Five Responsibilities 1. Information analysis and infrastructure protection 2. WMD countermeasures 3. Border security 4. Emergency preparedness and response 5. Coordination: intergovernmental & private sector

n n n BENEFITS FOR VICTIMS OF INTERNATIONAL TERRORISM ACT (2003) Programs to provide benefits to those US citizens who find themselves victims of terrorism compensation is also sought under ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT (1996) Established right of victims to sue foreign states listed as state sponsors of terrorism (Iran, Iraq, N. Korea, Cuba, Libya, Sudan, Syria) Compensation for hostages now set at $10 K per day as a result of high profile cases such as Terry Anderson, Joseph Cicippio Wrongful death awards usually based on lost earnings, calculated by tax returns and actuarial tables

E. U. Legal Responses n European Council, Declaration on Combating Terrorism (Mar. 11, 2004) n Expressed the basic framework for EU responses to terrorism following the 2004 Madrid bombing n Represents the importance of European security cooperation

n n n 2004 Declaration on Combating Terrorism is not new and has been until recently a problem for national governments (i. e. , Irish Republican Army, ETA in Spain, Red Army Faction in Germany) Terrorism has now emerged as a global phenomenon, with al Qaeda pioneering the pattern for other orgs. The global threat is from fundamentalist religious groups [the term Islamic is not used] that follow the teachings of leaders such as Sayyid Qutb Attacks are not limited to symbols of the state but are designed to achieve maximum publicity These groups are international and are linked

n n n Common European standards for authorization to access classified information Interoperable and interconnected EU security systems An effective intelligence-led enforcement capability at EU level and the establishment of an EU criminal intelligence network Intelligence sharing Cooperation crucial with EU and non-EU countries Inherent barriers in intelligence gathering: internal and international Member states retain security responsibility, EU acts as policy coordinator intelligence clearing house

The Nullum Crimen Principle and the Trial of Saddam Hussein Issam Michael Saliba March 2, 2006 The Law Library of Congress Serving the United States Congress Since 1832

Basic Facts n Saddam Hussein is charged with crimes against humanity committed during 1982 -83. n “Crimes against humanity” is an international offense. n There was no Iraqi law addressing crimes against humanity. n The 2003 CPA statute is the first Iraqi law addressing crimes against humanity. n Law No. 10/05 replaced the 2003 statute. n Can the court convict under law No. 10 for acts committed in 1982/83 without violating the legality principle? n What is the legality principle?

The NULLUM CRIMEN SINE LEGE Principle in Criminal Law Universal Declaration of Human Rights, Article 11. 2 (1948): No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

The Nullum Crimen Principle in International Law (continued) International Covenant on Civil and Political Rights, Article 15, sec. 1 : No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

The Nullum Crimen Principle in International Law (continued) European Convention on the Protection of Human Rights and Fundamental Freedoms, Article 7, sec. 1 (1950) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

The Nullum Crimen Principle in National Law n United States, sections 9 and 10 of Article I of the Constitution n Iraq, section 2 of Article 19 of present Constitution: There shall be no crime and no punishment without a stipulation [by law]; there shall be no punishment except for an act the law considers a crime at the time of its commission; and no punishment shall be imposed that is more severe than the punishment in effect at the time of the commission of the crime. n Iraq, Article 1 of the Penal Code: There shall be no punishment for an act or omission except on the basis of a law so stipulating at the time of its occurrence. And no penalties or precautionary measures shall be imposed without being prescribed by law.

Can a National law Incorporating an International crime Apply Retrospectively? There are four major court decisions from different countries on the issue, with two differing points of view Canada and Spain United Kingdom and France

Canada: The Finta Case n A 1987 law gave Canadian courts extra-territorial jurisdiction for crimes against humanity. n Imre Finta was charged for crimes against humanity committed in 1944. n Finta was acquitted by a jury trial, but the case reached the Supreme Court. n Did the 1987 law violate the nullum crimen principle of the Canadian Charter? n Court adopted the notion of an act "illegal but not criminal" at the time it was committed.

Spain: The Scilingo Case n In 2001, Adolfo Scilingo was arrested in Spain and charged with international offenses committed in Argentina. n In 2004, the Supreme Court (Tribunal Supremo) confirmed the jurisdiction of the National Court (Audiencia Nacional) to try Scilingo. n In April 2005, Scilingo was convicted and sentenced to 640 years in prison. n The conviction relied on article 607 bis of the Spanish penal code. n Article 607 bis was added to the Spanish Penal Code in 2004. n How did the Court justify its decision?

United Kingdom: The Pinochet Decision (Regina v. Bartle, et al. ) • Universal jurisdiction for local courts was granted in the UK by the Criminal Justice Act, 1988. • Spain requested the extradition of Pinochet, while he was in London, to stand trial for torture and conspiracy to torture committed in Chile. • Double criminality rule requirements. • The House of Lords held that the alleged acts must be crimes under UK law at the date of commission. • Were the alleged acts extraditable?

France: Decision on Crimes Committed During the Algerian War n France amended article 211 of its penal code to incorporate crimes against humanity into French law in 1994. n A subsequent complaint alleged commission of crimes against humanity in Algeria between 1955 and 1957. n Could the investigation proceed on the basis of article 211? n Could the investigation proceed on the basis of the charter of the Nuremberg Tribunal? n Could principles of international customary law provide a legal basis for proceeding in the investigation?

CONCLUSION