Daily Times

Various conflicts around the world have been described as part of a ‘war on terrorism’. If regular armies are indeed engaged in armed conflict with terrorists, what protection do they derive from the international treaties against terrorism? To what extent are international treaties against terrorism applicable to acts committed by armed militant forces during an armed conflict or occupation? To what extent do these treaties protect armed forces from terrorist attacks in times of peace, and to what extent do they apply to abuses committed in peacetime by militant forces? What is the relationship between these branches of international law and international humanitarian law? Terrorism is not a new phenomenon. During the second half of the 20th century, many countries in Europe, Latin America, Africa and Asia confronted militant movements of very diverse kinds that had in common the willingness to resort to the use of violence against innocent civilians to obtain their goals. In some conflicts, the victims numbered in the tens of thousands. In response, the international community began to adopt a series of treaties concerning specific types of terrorist acts and the obligations of states with regard to them. There are now 13 international treaties against terrorism, as well as numerous regional treaties and a general treaty against international terrorism.

It is a widely recognised fact now that terrorism presents a global threat that cannot be addressed by countries individually, irrespective of how strong they are or whether they face, at a given period of time, a particular threat of hostile terrorist activities. A relatively strong country with all the might that in the past served as a deterrent, protecting it from hostile acts by militants, today is made a more probable target. It is also quite possible that terrorist groups might temporarily use the territories of some countries to prepare hostile actions against other nations, while avoiding problems with their ‘host countries’. So, as a basic premise, serious international cooperation against terrorism is undeniable, which constitutes a strong argument, supporting the case that treaties have a big role to play here. This argument, however, may not suffice for the final judgment, at least because treaties are just one form of international cooperative interaction. So, a relevant question to consider is whether international treaties can play a role in the fight against terrorism and, if the answer is yes, then we have to ask: what role? To answer this question, it would be logical to look at which key activities and objectives, pertaining to the prevention of terrorism, can be seen as requiring broad international cooperation, at how better cooperation in these areas can be solidified, managed and sustained, and what kind of treaties can be helpful in this regard. It would also be helpful to keep in mind that, while in the past international treaties were mainly concluded to fight wars and establish conditions for peace, nowadays they cover a broad range of interrelated areas, such as interaction among countries and regions of countries, irrespective of whether its nature is friendly or competitive. The diplomatic lounge has expanded dramatically but the circumstances of such interactions also tend to evolve at a much faster pace thanks to a mix of political, social and technological factors.

Since treaties concerning terrorism have been made mainly in order to combat international terrorism, their scope is generally limited to acts that have an international dimension. International treaty laws concerning terrorism, which initially covered only acts affecting civilians, have gradually expanded to cover some acts of terrorism against military personnel and installations. The taking of military personnel hostage is, in principle, covered by the convention against hostage-taking, if the act in question is not covered by the Geneva Conventions or their Additional Protocol I or II, for example, because it does not occur during an armed conflict or occupation. The use of explosives or certain other lethal devices in a public place or against a state facility to cause death, serious injury or serious economic loss is, in principle, covered by the convention against terrorist bombings, even if the target is a military one, when the act does not take place during an armed conflict, or when it does take place during an armed conflict but the perpetrator is not part of an armed force. The principal obligation set forth in international treaties against terrorism is to incorporate the crimes defined in the treaty in question into domestic criminal law, and to make them punishable by sentences that reflect the gravity of the offence.

The countries party to these treaties also agree to participate in the construction of ‘universal jurisdiction’ over these offences; that is, to take the necessary measures to give their courts very broad jurisdiction over the offences in question, including jurisdiction based on territoriality, jurisdiction based on the nationality of the offender and the victims and, according to most of these treaties, jurisdiction based on the mere presence of a suspect on the territory of the country. In addition, they accept the obligation either to extradite any suspected offenders found in their territory or to begin criminal proceedings against them. In order to facilitate extradition these treaties invariably provide that the offences in question shall not be considered political offences, which are not extraditable under most extradition treaties. In addition, these treaties require various types of cooperation among the participating countries, ranging from cooperation in preventing terrorist acts to cooperation in the investigation and prosecution of the relevant offences. Most of these treaties also contain dispositions concerning the protection of human rights. Such dispositions are of three kinds: general provisions indicating that the obligations set forth in the treaty are without prejudice to other international obligations of the state party, provisions concerning the right of accused or detained persons to due process and provisions establishing conditions regarding extradition and the transfer of prisoners. Recent treaties also contain a provision that in effect prohibits the practices known as ‘rendition’ and ‘extraordinary rendition’, whose links to torture, denial of access to competent courts, incommunicado detention and other human rights violations have been documented.

There are several areas of international cooperation relevant to the fight against terrorism and, without prejudice to others, a simple purpose-built approach, like general cooperation against any kinds of terrorism would be a good start. Given the multiplicity of tasks involved in the fight against terrorism, it is prudent to at least create international legislation against terrorism while ensuring its consistency with the principles of democracy, government accountability and protection of human rights and liberties. Specific strategic plans and task oriented cooperation aimed at pre-empting terrorist attacks, neutralising terrorist groups and structures and intelligence sharing between intelligence agencies, police and other specialised agencies is vital. While this area is critical for the successful fight against terrorism, and arrangements of this sort are already in force, this is hardly an area where treaties could play a big role. However, there is another challenging question: how to facilitate broader and equitable interaction amongst those specialised agencies and a proper oversight over their activities. In this sense, a possibility to conclude special protocols to more general treaties, not necessarily involving all parties to the latter, might be of some use. The final, even more provocative question: while everything that has been said above relates to treaties between and among states, one may wonder whether treaties with non-state actors aimed at preventing or limiting the manifestations of terrorism are going to be viable.

The writer is a member of the Diplomate American Board of Medical Psychotherapists Dip.Soc Studies, member Int’l Association of Forensic Criminologists, associate professor Psychiatry and consultant Forensic Psychiatrist at the Huntercombe Group United Kingdom. He can be reached at fawad_shifa@yahoo.com