Law

Terrorism has always remained a controversial subject instigating fierce debates, passion and national interests. It is often times very difficult to produce an unbiased and objective review of what most of us perceive as terrorist activities. In fact, writing on terrorism is considered a risky as well as expansive preposition in countries like UK where actual convicts have sometimes successfully sued for defamation in the press. Therefore, writers need to be careful in naming a suspect without providing substantial evidence as weak claims are bound to increase controversy. Actually, these controversies are not without merit because any writing on this subject will always have harsh critics. The word Terrorism itself sparks other contentious issues such as the concept of freedom fighters or terrorists, human right laws and difference of opinion in the international communities. This paper strives to provide a broader view on terrorism as conceived by different groups in the World thus building on a debate on the response of international community in controlling terrorist activities. After reading the views discussed in this paper, it is expected that readers will be able to better understand why international responses to terrorism have been hampered by the adage one mans terrorist is another mans freedom fighter

Terrorism Defined
Members of the United Nations differ on the definition of Terrorism. Despite such universal disagreement, most of us may agree to a good extent that terrorism is a systematic act of violence against innocent and non-combatants to incite fear. Moreover, there is considerable argument on whether the term can be applied to wartime acts or even if it is an altogether different concept from crime. To spread their own propaganda, often times Governments have also deliberately used the term terrorist to degrade their political opponents, right and left wing political parties. Without any clear definition, many countries have now resorted to the legal definition of terrorists in order to distinguish between a terrorist and acts of terrorism. According to experts, a broader globally recognized definition will not only assist in recognizing terrorists but increase cooperation between law enforcement personnel in different countries. In view of these considerations, the law enforcements authorities in UK also take their guidance from the definition of terrorism, which is found in Section 1 of the Terrorism Act 2000. Under this definition of terrorism, UK authorities can take action on publications which indirectly encourage acts of terrorism or arrest a person reasonably suspected of being a terrorist without a search warrant, among other measures. Similarly, other nations have also endeavored to produce a single definition of terrorism. For example in India, this definition is very broad allowing authorities, in certain areas, to identify someone as terrorist if they carry a firearm. In United States, this definition allows law enforcement to enjoy wide executive powers including access to confidential information of citizens while in Iceland disrupting traffic safety by causing fear can be regarded as an act of terrorism. The purpose of relating these examples is to offer an insight on how Nations may manipulate the definition to help them identify a terrorist or to assist in their objectives for dealing with those who they define as terrorists.

Terrorists or Freedom Fighters
The most controversial aspect of this definition is revealed when it is unable to distinguish between legitimate resistance movements and freedom fighters. Since early human history there has not been a single law of war which can dictate as to when it is justifiable to engage in acts of physical aggression Still, it is agreed that after World War II, the treaty of Geneva Convention is the most authoritative documentation that offers actionable set of rules on when to declare War against an oppressor. In 1977, the proposed amendment to the original ruling of Geneva Convention specifically provided a ruling on the protection of the victims of international armed conflicts. The Article 1, Paragraph 4 of this ruling states that resistance movements are those in which people are fighting against colonial domination, alien occupation and racist regimes. Almost all principal nations in the World have ratified this treaty but it will not be an oversimplification to suggest that the controversial definition has sparked another debate on exactly which is a resistance movement and who is a terrorist Adding to this dilemma is the concept of freedom fighter that may loosely be defined as someone engaged in a struggle to achieve political freedom or making an attempt to free others from the shackles of a colonial domination, alien occupation and racist regimes.

Consider the IRA in Northern Ireland and Umkhonto we Sizwe in South Africa which were both regarded as terrorist groups by the governments but attracted a loyal following from supporter during their hey days. It is also noteworthy that some larger than life figures have been accused of terrorist acts. Consider three Israeli Prime Ministers Menachem Begin, Yitzhak Shamir and Ariel Sharon who have been criticized heavily for undertaking operations where civilians seem to be the primary target. Their opponent, Yasir Arafat is the leader of PLO whose weapon of choice is terror. Even Nelson Mandela was charged with plotting terror. If this seems controversial than what about the only Nation to drop atomic weapons on innocent civilians who were already at the brink of a loss.

According to a recent survey by University of Liverpool on Kashmir conflict between India and Pakistan, it is interesting to note that 60 of the overall respondents see plebiscite acceptable but 66 of Buddhist living in the area perceive it as totally unacceptable. It can be argued that Buddhist are against the plebiscite not that they dont believe in a neutral plebiscite but the fact that migrating Buddhists have long enjoyed protection by Indian authorities from repression in their homeland, Tibet. They may fear that a plebiscite in favor of Pakistan may endanger their peaceful existence in Kashmir valley due to Pakistans deeply rooted ties with Chinese authorities. In light of this issue, it will be interesting to conduct a study which asks the Buddhists population on their views on the ongoing armed struggle by Kashmiri separatist groups. As Buddhists are themselves striving for freedom in Tibet, it is assumed that they will be in a state of limbo as if to call the combatants of armed resistance freedom fighters or terrorists. Amid these ambiguous definitions and the difficulty in referring anyone as good or bad, freedom fighters have historically been labeled as assassins, insurgents and terrorists. It can reasonably be concluded that it all depends on ones point of view, the ideology of the user and the context of its use.

Who is a Terrorist
Despite a loose definition of terrorism, fortunately there is a growing uniformity in the consequences of general public that there are indeed groups which can be labeled as terrorists without much ambiguity. These groups include organizations that have consistently shown patterns of attacks on public places including assassinations and kidnapping, without any official statement of remorse. Another distinguishing characteristics of these fighting units is their involvement in organized crimes for the purpose of extortion and drug trafficking. Kurdistan Workers Party, Lashkar-e-Taiba operating in Indo-Pak subcontinent, Tamil Tigers and Islamic Jihad Movement in Palestine have frequently been cited in public press to carry out militant activities that bear hallmarks of a typical terrorist activities. As discussed, the definition of terrorism is broad therefore some groups that are considered to form a terror group may not be viewed in similar category by other Nations. In this regard, the UK government does not list some well known armed groups as terrorist which includes several key Palestinian separatist organizations including Al-Asqa Martyr Brigade, Asbat-al-Ansar, Hamas, Hezbollah, Palestinian Liberation Front and Popular Front for the Liberation of Palestine. Likewise, it is also reluctant to include Revolutionary Armed Forces of Columbia, United Self Defense Forces of Columbia and Shinning Path of Peru, even though these organizations have been labeled as terrorists by EU, USA and Canada. These differences in opinions clearly suggest that there is no universal definition of Terrorism whereby Nations are always flexible in interpreting according to their own agenda.

Terror  the Struggle for Peace
Before discussing the involvement of multiple nations to counter terrorism as it happened on 911 and 711 attacks, it is useful to highlight that despite controversies and blame games, there have been very successful peace process that can act as a model for international community. One of the most talked about is definitely the Northern Ireland peace process. After decades of armed resistance from IRA and other groups, the 1994 ceasefire was the first major step in promoting peace efforts as talks between members of Northern Ireland nationalist parties, SDLP as well as Sinn Fein along with Irish and British governments ended in a success. These talks were being carried out since 1980s which concluded with British government declaring that it will abide by the decision of Northern Ireland to decide between Ireland and UK. Accordingly, the Irish government agreed that it would do everything to persuade Unionists to consent to the idea of a United Ireland. Every party involved also agreed that such a peace process can only be sustained by ending a paramilitary campaign. In April, 2005 a landmark was achieved when Garry Adams, then head of the IRA, called its members to lay down arms and use exclusively peaceful means to achieve goals.

In 1996, when Irish peace treaty was developing, another important breakthrough took place in Guatemala where the 36 years old Civil War was ultimately brought to an end by the declaration of Unidad Revolucionaria Nacional Guatemalteca to lay down arms and subsequently become a recognized legal party two years later. It is estimated that over 200,000 civilians were killed during the conflict. This is a sizeable portion of the countrys population which dwells only 13.2 million inhabitants. Just four years earlier, across the continent in Africa, Mozambique Civil War came to an end in 1992 when South African backed Mozambique Resistance Movement laid down arms. Almost 900,000 lives were claimed in this 15 year old brutal conflict. The two year transition period overseen by UN forces paved way for democracy when conflicting parties took part in general elections. Examples of these peace accords confirm that there always exists a suitable solution to humanitys problems. In addition, terrorists, freedom fighters, dictatorships and governments can iron out issues by committing to dialogues.

The Case of International Terror Networks
While these conflicts involved groups that are easier to discern by identifying them by their objective, geographical location and method of operation but there are international networks that seldom fit this profile. These types of global terror network were hardly ever present a century earlier due to limitation in communication, technology and transport. Nowadays, Al Qaeda is the leading example of a terror network that spans multiple continents. Laws pertaining to domestic terrorism sometimes seem obsolete in elaborating on this type of network which operate in different countries and may constitute different groups operating in the same territory. It is logical to assume that international community is already facing difficulty in implementing universal laws due to the fact that every other country has its own definition of terrorism.

Fight on terror is further compounded by human rights issues when Nations differ on who is a terrorist and how to deal with those terrorists Consider Guantanamo bay detention camp where hundreds of prisoners are thought to be detained against the International law. In confronting international terror networks Law of War and International Humanitarian Law play an important role.

Terror Networks in UK
Understanding the implications of these two international laws is important because international terrorism is the number one threat to the stability of UK. According to MI5 security services there are more than 2000 British residents and foreign born residents, 200 terrorist networks and 30 active plots against the Queens empire. The nature of this threat state that these people are involved in supporting overseas terror organizations, acquiring false documents to use in terror activities and spreading extremist ideologies. A number of British citizens have also traveled to Iraq and Afghanistan to train and involve in terror activities upon their return. According to the same source, the threat has developed overtime as terrorists promote their views over the internet and distributing free disks. Since UK has long standing commercial, political and military links in Muslim World, these home based terrorists work on Al Qaedas agenda to retaliate. As of March 2007, 1,165 people were arrested under the Terrorism Act and another 114 were awaiting trial.
As UK authorities plan to counter international terrorist organizations and other extremist elements on home soil, international laws and human rights issues are taking a center stage. Per the most significant Law of War, Geneva Convention, the Article 4.1.2 affirms that if a country is being confronted with someone who is conducting its operations in accordance with laws and customs of war then that someone falls under the protection of third or fourth Geneva Convention treaty relative to treatment of prisoner of War and Civilians, respectively.

Definition Revisited
Accordingly, UK government has to face harsh criticism from human rights group who maintain that UK is wrongly supporting American cause knowing that America has disregarded the definitions of Geneva Convention by self endorsing a new category called unlawful combatants. Although the International Tribunal for the Former Yugoslavia have already challenged this new category by quoting the fourth Geneva Convention that there is no intermediate status but US authorities continue to put several UK citizens on trial. There have been nine UK citizens detained in the infamous Guantanamo detention camp under the definition of unlawful combatants. All of them have been released including five without any charges. The release of these prisoners comes as no surprise as most of those in custody may not fall under the definition of terrorists. A detailed report on the profile of 517 detainees was prepared by Mark Denbeaux who acted as a counsel to two detainees. According too this interim report 55 of the detainees are determined not to have committed a hostile act against USA or its allies. Among these, only 8 detainees can be categorized as Al Qaeda fighters and 60 are there because they are affiliated with groups that the Government, where they were apprehended, classifies as terrorist organizations. One of the UK detainees was Feroz Abbasi whose excerpts with the Tribunal president at the Guantanamo Bay revealed that Mr. Abbasi was consistently reminded that international laws does not apply in his case and that the Tribunal does not care about the International law. Another well known British prisoner, Moazzam Begg was charged as an enemy combatant by the US authorities. While Moazzam Begg was denied legal assistance throughout his two and half years detention, the Combatant Status Review Tribunal determined that Mr. Begg had links with Al Qaeda therefore he cannot be provided the status of POW under the guidelines of Geneva Convention.

The Legality of Self Administered Courts of Law
Critics of Combatant Status Review Tribunal insist that the nature of CSRT is inherently flawed. They further argue that this flawed nature is visible by proceedings in the cases of Feroz Abbasi and Moazzam Begg, among others. Moreover, experts point out to the fact that mere existence of such tribunals is not only questioned by international community but US courts, too. Reasons cites for illegal status of these tribunals include carrying out rudimentary proceedings without providing detainees any legal protection and without counsel. In addition Guantanamo detainees had no right to present witness or cross examine government witness and their chargesheet for enemy combatant status was always kept confidential. On June 12, 2008 US Supreme Court ruled 5-4 that Guantanamo Bay captives had right to access the US justice system. Noteworthy is the fact that Chief Justice John Roberts, who opposed the decision, wrote in minority report that these are the most generous set of procedural protections ever afforded to aliens detained by this country as enemy combatants even though the status of classifying someone as enemy combatant was itself overseen by a controversial system a system whose neutrally was the primary objection in the case.

Sovereign States
Perhaps the reluctance of United States to address international concerns pertaining to US Guantanamo Bay detainees can reasonably be explained by the definition of Sovereign State when countries are at War. A good example in this regard would be the military occupation of Iraq by United States and by its main ally, UK. The laws of occupation, as it concerns to Iraq, are explicitly stated in three prominent treaties on International Law of War. These three treaties are 1907 Hague regulations, the 1949 IVth Geneva Convention and the 1977 1st Additional Protocol. The regulations of these treaties are derived from customary international laws that have prevailed for over a century. According to these classical regulations, an occupied territory is a Sovereign territory that is under the military occupation of another State at the time when the State of War exists between them. As Iraq is under the military occupation of USA and UK, Iraq at present, is considered a Sovereign territory which in under military occupation of allied nations.

International laws requires that if such a condition exist then the occupier must set up military government in order to control the affairs of that occupied sovereign territory according to the International Law of War. These International laws also contain provisions regarding humanitarian laws. UK and USA are both bound by the International Law as customary International law forms part of the law of land in both of these countries. In an ideal situation, the allied nations should follow the guidelines of the three treaties in resolving issues in Iraq but in reality, it may not be the case.

In contrast, very few Nations may have applied the protocols of Geneva Convention due to problems in defining Sovereign territory. In WWII, the laws of occupation were never applied in Germany because allied powers concluded that after the demise of the Reich, there existed no Soverign power in Germany therefore, to some extent, the rulings of Hague Convention become void. The case of Iraq can be related to the German Reich where Saddam Hussein acted as the dictator of oppressive regime corresponding Hitler therefore Iraq may not be considered a Sovereign territory under the clause of Geneva Convention.
Consequently, a number of treaties of International Law cease to exist. These intentions of UK and USA are manifested by their joint letter to the UN Security Council on May 2003 in which they have formally refrained from stating that they will be applying regulations of Geneva Convention. Instead, the coalition declared that the States participating in the Coalition will strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq. In an online University of Pittsburg Law forum, prominent commentator Dr. Robbie Sabel at Hebrew University Faculty of Law in Jerusalem has provided a lucid commentary on this controversy where he further explained that UN in responding to the letter did not use the word occupying powers. Reviewing the response letter UN Doc.SRES1483, it becomes apparent that UN only referred to the international resolutions after the Gulf War and avoided discussing specific resolutions of the Geneva Convention or Hague, for that matter. One can argue that the hybrid nature of the International Law regarding the definition of Sovereign State and other relevant laws needs to be clarified because occupying Nations, intentionally or inadvertently, may present the occupied territory as an exception to Sovereign State. Seeking the benefit of such loop holes, USA, UK and their allies are able to setup camps like Guantanamo Bay where detainees may not be covered under the provisions of law of occupation.

Investigating Loop Holes in the Law
It is not only Nations but individuals who are greatly affected by the controversies surrounding the implementation of international laws. Just as the Law of War, the international humanitarian law holds utmost importance to human right organizations. The four Geneva conventions of 1949, their two additional Protocols of 1977 and Protocol III of 2005 are the principle instrumentation of humanitarian law. These are collectively known as treaty law. Amid gross human right violations, one of the primary roles of United Nations is to assure that countries abide by this treaty law, when in state of War. Unfortunately the plight of human suffering is increased when governments try to find loopholes in international humanitarian treaty law. According to the latest edition of the Yearbook of International Humanitarian Law there exist substantive loopholes in the law of neutrality because there hasnt been any development in the law since the Hague Convention in 1907. Had there effective guidelines been in place, mass civilian causalities by Allied forces could have been prevented in Iraq and Kosovo. Other important rules such as issues involving air warfare and belligerent occupation also needs reevaluation.

Human Rights
It is particularly worth discussing how Nations have developed means to interrogate alleged terrorists away from home soil. While Guantanamo Bay is a stark example of human rights violations, UK authorities have also been involved in carrying out intense interrogations outside their home soil. The infamous Bagram interrogation center and the recent revelation of using law enforcement agencies of other allies have raised eye brows against United Kingdoms violation of human right issues. It is usually believed that foreign interrogation centers such as Guantanamo Bay and Bagram, inter alia, are utilized in order to use questioning techniques that may face severe legalities in developed countries. The case of British resident, Omar Deghayes, is a prominent example of extracting evidence by violating international treaties. Omar Deghayes spent more than six years in Guantanamo Bay where he faced brutal torture resulting in a lost eye, broken nose and other minor deformities. The only evidence against him was a video of his look alike, who was later identified to be a dead Chechnyan rebel, in the terrorist training camp in Russia. Like many others, Omar was released without charge on the intervention of UK authorities. Before Guantanamo, Omar was detained at Bagram where his British investigators forced him to confess under duress.

Outsourcing Torture
In July 2009, Guardian revealed how UK intelligence agencies had outsourced torture of British Citizens to Pakistani authorities. The report corroborated earlier findings by another US based NGO which accused MI5 to detain accused in a Jail in Rawalpindi where Pakistani intelligence agencies would torture suspects on the guidelines provided by UK authorities. A British officer, who was involved in the torture of Rashid Rauf, was quoted as saying that the suspect of 2006 airline bombing was unlikely to be tried in British courts because of brutal torture carried out by Pakistani officials on the whim of British. Several Pakistani officials claimed that British intelligence officers would request them to carry out inhumane activities and be grateful to them for this. A member of Intelligence Bureau from Pakistan summarized the whole affair by confirming that I do not know if the British knew we had given him a good thrashing and the treatment. But they know perfectly well we do not garland terrorism suspects nor honour them. We do what we do and its not pretty. And with them breathing down our necks for information from Runnymede the British Deputy High Commission in Karachi is known as Runnymede Estate and the ISI eager to take over our turf and our suspect, we would naturally be keen to produce results. Results are not produced by having chats with the suspect. During a cross examination of one MI5 officials in British high court, the existence of an interrogation policy involving high level British officials was exposed. Further investigation led human right committees to an extended link between Pakistani officials, UK and United States. A terror suspect was first interrogated by Pakistani authorities then handed down to UK who would make a decision to hand over UK citizens and residents to United States. The UK high court did not disclose the 42 undisclosed documents to Public as it can damage the UK-USA relationships. UK officials even confirmed that US authorities warned UK that it would stop information sharing if those documents were released.

The War on Terror and its Impact
Decline in civil liberties becomes more obvious considering that only 340 of 1,471 terror suspects were ever charged in UK between 2001 and 2008. Only 7 of these were found guilty under terrorism legislation. These figures rise to overall conviction rate of 14 when terrorism related charges are countedAlthough British Home Office statement regarding these figures stated that the total charged or convicted is comparable to other indictable crimes but gross human rights violations faced by these terror suspects remain a major concern. For anyone indicted in terror charges, just the stories of torture are enough to send shivers down the spine. Amid this controversy, the legislation of Terrorism Act 2006 came in spotlight which would allow UK authorities to detain a terror suspect without charges for up to 90 days. Even though the bill was revoked but the detention period was doubled from the previous 14 days to 28 days.

International response to terrorism has been hampered by such critical issues and the support on the alleged War on Terror may actually be decreasing. According to the Pew Global Attitude Project, the largest percentage drop in support of this War was observed in industrialized countries who are allies with America. After September 11, public opinion in Britain, Germany, France, Spain, China and Japan decreased considerably. Another survey by a prominent American think tank tells a similar story by pointing out that only 4 Americans believe that they are winning the War on Terror. Whatever the case but it is becoming obvious that Nations need to clarify their position before engaging in conflicts or develop Universal rules otherwise the World will have to confront increasingly complex phenomenon such as Talibization Hence, making it nearly impossible to tackle the newly emerging legal complexities.