Transcript IR3001 week 7 lectures Transnational Actors I: Terrorism

TERRORISM
“Kill one, frighten ten 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”
 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)
 Walter Laqueur: “Terrorism constitutes the
illegitimate use of force to achieve a political
objective when innocent people are targeted”

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:
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Illegal use of force
Intended to intimidate
or coerce
Support of political/
social objectives
POTENTIAL TARGETS
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Government facilities
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Public assembly buildings

Mass transit systems
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Telecommunications

Symbolic Sites
Problems of Definition
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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…

Conceptual difficulties
– Guelke: definition has become so elastic it can include
anything…
– Who defines what legitimate violence is, and using what
criteria?
Political Manipulation
 The label terrorist makes a political group illegitimate
and an acceptable target for violent repression

– Nelson Mandela’s ANC was labelled terrorist

A freedom fighter can later be a terrorist
– E.g. Bin Laden – Afghan resistance to USSR vs. al-Qaeda

Most states secured their existence using terrorist
means at some point! E.g. Decolonisation…
Terrorist movements in recent
history

Left-wing groups: Red Army Faction (Germany), Red
Brigades (Italy), Action Directe (France), Japanese
Red Army (Japan), Revolutionary Armed Forces of
Colombia (FARC, Colombia)
 Right-wing groups: Ku Klux Klan, Aryan Nations, The
Order (USA), Combat 18 (UK)
 Some groups are better defined by the territorial
disputes they are engaged in: PLO (1970s), 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:

police and security organisations -
– infiltrate organisations to gather intelligence
– infiltrate and monitor related non-violent organisations
– intercepting communications & mass surveillance

‘target hardening’: making state objectives harder
to hit
– usually results in targeting of ‘soft’ objectives…

‘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
 put in place legal instruments facilitating ‘defection’
 political negotiation or reform concerning
underlying issues has been key to resolving conflict

 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

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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?
Terrorism is illegal… But is it immoral?
– Terrorist groups frame themselves as fighting an unjust ‘system’.
– Occasionally they are convincing (Apartheid)…

Crime to fund activities? arms smuggling; drug trafficking;
or racketeering…
– E.g. Provisional IRA, GIA (Algeria), Sendero Luminoso (Peru), FARC
(Columbia)

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’

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?

State-sponsored terrorism: The funding and/or
supplying of terrorist groups by states.
– Iran: ‘exporting the revolution’ in the 1980s, Hezbollah
– USA: Overthrowing Mossadeq in Iran; supporting Pinochet
in Chile; Grenada; sponsoring the Contras against the
Sandinistas in Nicaragua; etc.

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
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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?
Political initiatives: US: traditional and cultural diplomacy to
secure allies (9/11 exhibition)
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!
Dilemmas of the War on Terror II

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’?
 The answer to above is available only in Legal response.

Pakistan’s Role in Countering
Terrorism

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’
 Pakistan is signatory to 11 United Nations
Counter Terrorism conventions
Pakistan’s Role in Countering
Terrorism
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Pakistan has signed extradition treaties with
thirty countries
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Enhancing cooperating with ASEAN Regional
Forum
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Cooperating with coalition partners in
Afghanistan
Pakistan’s Role in Countering
Terrorism

Captured more terrorists, especially over 600
linked with Al-Qaida
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Committed some 80,000 troops along its
Western Borders

Pakistan has so far lost ………..personnel in
counter terrorist operations in areas close to
Pakistan – Afghanistan Border
Future Security Challenges /
Issues
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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
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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

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

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.

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
anti-terrorism
legislation
endangers
democracy by creating a state of exception
that allows an authoritarian style of
government.
Pakistani Experimentation
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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.
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”.
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”.
Experimentation Continues
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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”.
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.
The Oct 24, 1998 Anti-Terrorism (Amendment) Ordinance
attempted to respond to most of the Supreme Court’s objections.
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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.
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”.

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, AntiTerrorism (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.

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 their heirs 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.
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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.
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..
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.

No, we still want to do more experiments.
U.S.A., U.K. Legal response to
terrorism
 Now
some,
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 panEuropean 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
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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

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PATRIOT ACT (OCT. 26, 2001), or The Uniting and

Primarily a collection of changes to existing laws, for
example:
Telemarketing Consumer Fraud and Abuse Prevention
Act [to hinder fundraising]
Racketeer Influenced and Corrupt Organizations Act
(RICO) [to prevent money laundering and permit
expanded wiretapping, surveillance of email]
Reauthorized March 9, 2006
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Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of
2001
Effects of Legislations
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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 $136M in assets around the world
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
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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 $10K 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
European Council, Declaration on
Combating Terrorism (Mar. 11, 2004)
 Expressed the basic framework for EU
responses to terrorism following the 2004
Madrid bombing
 Represents the importance of European
security cooperation
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2004 Declaration on Combating Terrorism
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
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

Saddam Hussein is charged with crimes against humanity committed during
1982-83.

“Crimes against humanity” is an international offense.

There was no Iraqi law addressing crimes against humanity.

The 2003 CPA statute is the first Iraqi law addressing crimes against
humanity.

Law No. 10/05 replaced the 2003 statute.

Can the court convict under law No. 10 for acts committed in 1982/83
without violating the legality principle?

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

United States, sections 9 and 10 of Article I of the Constitution

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.

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 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

A 1987 law gave Canadian courts extra-territorial jurisdiction
for crimes against humanity.

Imre Finta was charged for crimes against humanity committed
in 1944.

Finta was acquitted by a jury trial, but the case reached the
Supreme Court.

Did the 1987 law violate the nullum crimen principle of the
Canadian Charter?

Court adopted the notion of an act "illegal but not criminal" at
the time it was committed.
Spain: The Scilingo Case

In 2001, Adolfo Scilingo was arrested in Spain and charged with
international offenses committed in Argentina.

In 2004, the Supreme Court (Tribunal Supremo) confirmed the
jurisdiction of the National Court (Audiencia Nacional) to try Scilingo.

In April 2005, Scilingo was convicted and sentenced to 640 years in
prison.

The conviction relied on article 607 bis of the Spanish penal code.

Article 607 bis was added to the Spanish Penal Code in 2004.

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

France amended article 211 of its penal code to incorporate
crimes against humanity into French law in 1994.

A subsequent complaint alleged commission of crimes
against humanity in Algeria between 1955 and 1957.

Could the investigation proceed on the basis of article 211?

Could the investigation proceed on the basis of the
charter of the Nuremberg Tribunal?

Could principles of international customary law provide a legal
basis for proceeding in the investigation?
CONCLUSION