An Overview of International Legal Framework for Combating Terrorism

AN OVERVIEW OF INTERNATIONAL LEGAL AN OVERVIEW OF INTERNATIONAL LEGAL FRAMEWORK FOR COMBATING TERRORISM By Barrister Zeeshan Adhi1 Advocate, Karachi Introduction: Terrorism has adversely affected a number of countries across the globe. Pakistan has been one of the major casualties of the rising trend of transnational terrorism. It appears that the counter-terrorism measures are not working in Pakistan. The menace of terrorism is no longer a phenomenon limited by national boundaries; it transcends continents and oceans alike. Consequently, no anti-terrorism framework can be successful unless it is based on mutual cooperation of States. This is only possible if there are international treaties, conventions and agreements which facilitate such cooperation. It therefore goes without saying that the role of international law has substantially become more important and relevant in combating terrorism. This paper seeks to analyze the international law mechanisms and instruments in relation to counter terrorism. Thereafter, this paper deals with the argument that measures adopted by States to counter terrorism have themselves often posed serious challenges to human rights and the rule of law. It discusses how some States have engaged in torture and other ill-treatment to counter terrorism, while the legal and practical safeguards available to prevent torture, such as regular and independent monitoring of detention centres, have often been disregarded2. To this end, this paper also examines whether it is possible for States to effectively combat terrorism without infringing on the human rights of individuals. Finally, this paper makes certain recommendations in the context of Pakistan. International Law: Academics have always had difficulty in defining international law in view of its changing and evolving nature. This is perhaps not the proper occasion to delve into a detailed discussion of what is, and what is not, international law. Suffice it to say for present purposes that in recent years, reliance is placed on the Statute of the International Court of Justice Article 38 (1) when defining international law, which includes, within the ambit of international law, the following: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law3. It may be observed that international treaties and conventions are considered a source of international law. Why International Legal Cooperation? It is of pivotal importance that States cooperate extensively if they are to adequately deal with terrorism. The key to this cooperation is to establish a mentality wherein States think of terrorism as a crime, and therefore employ mechanisms of criminal justice to address it. This will involve a major shift from the "war on terror" mentality wherein terrorism is considered a phenomenon in itself and not necessarily a crime. A necessary by-product of this mentality is that States and its military think of entering into a "war" to counter terrorism. This results in an antagonistic mentality rather than a cooperative approach. The mindset-shift from "war on terror" to terrorism as a crime, it is submitted, is the need of the hour. There is an immediate need for an international legal framework wherein the States agree to jointly investigate and prosecute terrorists. One way of doing so is by way of developing joint investigation teams4. Similarly, it is crucial that financing of terrorism related activities is curtailed by extensive banking and financial laws enforceable across borders. Similarly, there is a need for continued cooperation between national investigation agencies. Finally, States must be ready and willing to provide mutual legal assistance to each other, including legal assistance for purposes of extraditing or prosecuting criminals. Legal Definition of Terrorism Although there are multiple conventions, protocols, and treaties that deal with particular crimes which fall under the ambit of terrorism, there does not currently exist any international treaty which specifically defines the term terrorism. Some have gone on to argue that, we now have in place an impressive array of antiterrorist conventions, at both global and regional levels, that cover almost all possible manifestations of terrorism5. On numerous occasions since the 1920s, the international community has attempted to arrive at a generic definition of terrorism for the purposes of prohibition and/or criminalization6, however, there has been no success as yet. It may be apt to point out at this stage that a major theme in international legal framework is the obligation of a State to either extradite or to prosecute a criminal who is accused of an offence. This duty to extradite or prosecute applies equally to terrorism related offences. It is submitted that this duty of a State is based on a series of treaties and has also evolved into a principle of customary international law. With this background, it may be appropriate to discuss two particular conventions which have a direct impact on the prevention of terrorism-related offences in the world. Terrorist Bombings Convention An offence under this convention is defined comprehensively in the following manner: 1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility: (a) With the intent to cause death or serious bodily injury; or (b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss. 2. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph I. 3. Any person also commits an offence if that person: (a) Participates as an accomplice in an offence as set forth in paragraph I or 2; or (b) Organizes or directs others to commit an offence as set forth in paragraph I or 2; or (c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned. Although the word "terrorism" is not defined as such, it is clear from the above that the definition of the offence under this convention is wide enough to cover most, if not all, manifestations of the contemporary form of terrorism. It is pertinent to note that this convention does not deal with terrorist activities within a particular State and only applies if more than one State is involved. that is, in cases of international terrorism. It is submitted that in today's globalized world, most terrorism related offences are transnational in nature, and consequently, this convention will apply in most instances. The convention has not been signed by a large number of states, and even though Pakistan has acceded to the convention on l3th August 2002, it has not ratified it. It is also important to note that Pakistan has made the following declaration to the convention: "The Government of the Islamic Republic of Pakistan declares that nothing in this Convention shall be applicable to struggles, including armed struggle, for the realization of right of self-determination launched against any alien or foreign occupation or domination, in accordance with the rules of international law. This interpretation is consistent with Article 53 of the Vienna Convention on the Law of Treaties 1969 which provides that an agreement or treaty concluded in conflict with an existing jus cogen or preemptory norm of international law is void and, the right of self-determination is universally recognized as a jus cogen." Under this convention, a state is duty bound to extradite or prosecute those responsible for acts of terrorism. However, it is submitted that since not many states have signed and ratified this convention, the utility of it is rather limited. It is therefore important that the States take appropriate measures to do the needful and sign and ratify this convention. It appears that the purpose for the abovementioned declaration of Pakistan to the convention is to ensure that the convention does not in any manner affect the right of self-determination of peoples, particularly that of the peoples of Kashmir. Terrorist Financing Convention The purpose of this convention, as evidenced by its title, is to cut at the very root of terrorism: its finances. Needless to say that if finances of terrorist organizations are curtailed it will be substantially difficult for transnational terrorist organizations to conduct their unscrupulous activities. Article 18 of the convention mandates the States to take the following measures: 1. States Parties shall cooperate in the prevention of the offences set forth in Article 2 by taking all practicable measures, inter alia, by adapting their domestic legislation, if necessary, to prevent and counter preparations in their respective territories for the commission of those offences within or outside their territories, including: (a) ...; (b) Measures requiring financial institutions and other professions involved in financial transactions to utilize the most efficient measures available for the identification of their usual or occasional customers, as well as customers in whose interest accounts are opened, and to pay special attention to unusual or suspicious transactions and report transactions suspected of stemming from a criminal activity. For this purpose, States Parties shall consider: (i) Adopting regulations prohibiting the opening of accounts the holders or beneficiaries of which are unidentified or unidentifiable, and measures to ensure that such institutions verify the identity of the real owners of such transactions; (ii) With respect to the identification of legal entities, requiring financial institutions, when necessary, to take measures to verify the legal existence and the structure of the customer by obtaining, either from a public register or from the customer or both, proof of incorporation, including information concerning the customer's name, legal form, address, directors and provisions regulating the power to bind the entity; (iii) Adopting regulations imposing on financial institutions the obligation to report promptly to the competent authorities all complex, unusual large transactions and unusual patterns of transactions, which have no apparent economic or obviously lawful purpose, without fear of assuming criminal or civil liability for breach of any restriction on disclosure of information if they report their suspicions in good faith; (iv) Requiring financial institutions to maintain, for at least five years, all necessary records on transactions, both domestic or international. 2. States parties shall further cooperate in the prevention of offences set forth in Article 2 by considering: (a) Measures for the supervision, including, for example, the licensing, of all money-transmission agencies; (b) Feasible measures to detect or monitor the physical cross-border transportation of cash and bearer negotiable instruments, subject to strict safeguards to ensure proper use of information and without impeding in any way the freedom of capital movements. This convention has been agreed to and ratified by a large number of States. Pakistan has acceded to this convention on 17th June 2009, but has not signed it, or ratified it. When acceding to the convention, Pakistan has expressed various reservations, although these reservations are in relation to extradition of an accused and the jurisdiction of International Court of Justice, and not necessarily to the steps that are to be taken in order to halt the financing of terrorist activities. It is submitted that this convention is comprehensive in nature and broadly covers most activities required for combating the financing of terrorist activities. It is further submitted that if all States enact laws implementing this convention, the flow of money and finances across borders will become substantially more difficult. It may also be noted that the United Nations Security Council resolutions 1267 and 1373 were designed to promote international co-operation in the pursuit and freezing of assets believed to be connected with terrorists or terrorist organizations10, and these resolutions, in conjunction with the abovementioned convention, make it mandatory for States to curb terrorism related financing by enacting laws to that effect. At this point, it is also important to understand the difference between money laundering and terrorist financing. Money-laundering typically involves transfer of significant proceeds derived from illegal transactions into legitimate commerce or banking channels, often divided or disguised to avoid being conspicuous. Conversely, terrorist financing may involve aggregating sums derived from lawful activities or micro-criminality and transferring them to a person or entity that ultimately may send relatively small payments to support terrorist activities. Such funds become legally tainted only when the originator or some person in the chain along which they pass, has the intent to use them to finance a terrorist act11. It is therefore submitted that even though anti-money laundering laws may already be in place in Pakistan, nevertheless, more stringent anti-terrorist financing laws are necessary since the two phenomenon, although similar, have their own peculiarities. Mutual Legal Assistance: Mutual legal assistance is the process by which States assist each other to obtain evidence and other forms of cooperation necessary for criminal investigations and prosecutions in relation to criminal offences12. It is important to appreciate the difference between cooperation at investigation level and that of cooperation at the level of prosecution. Reference at this juncture may be made to United Nations Model Treaty on Mutual Assistance in Criminal Matters. This treaty has been passed by the General Assembly of United Nations, and it is now upto individual States to adopt it at a bilateral and/or multilateral level. According to this treaty, if adopted by States, assistance must be provided by States to each other, on the following accounts: (a) Taking evidence or statements from persons; (b) Assisting in the availability of detained persons or others to give evidence or assist in investigations; (c) Effecting service of judicial documents; (d) Executing searches and seizures; (e) Examining objects and sites; (f) Providing information and evidentiary items; (g) Providing originals or certified copies of relevant documents and records, including bank, financial, corporate or business records13 It must be remembered that this is not a treaty or convention as such. It is only a model treaty and the States are at liberty to enter into such arrangements with other countries. To this end, the SAARC (South Asian Association for Regional Cooperation) countries have entered into a multilateral treaty14 on 3rd August 2008. It would not be out of place, when discussing mutual legal assistance, to make reference to the United Nations Security Council Resolution 1373, Article 2(f) of which makes it mandator for the States to, "Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings15". It is therefore submitted that even in the absence of any specific statutory framework or multilateral treaty, by virtue of this Security Council resolution, States are obligated to assist each other in combating terrorism by providing the necessary prosecutorial and investigative assistance. When discussing mutual legal assistance, it is both proper and necessary to make reference to intelligence assistance and intelligence sharing amongst various States. Intelligence sharing is the key to combating transnational terrorism since terrorist organizations are employing increasingly complex mechanisms and tactics to achieve their nefarious goals. Good intelligence is key in preserving our security. No state has the 'Eye of Providence', and therefore cooperation of intelligence services plays a critical role in assessing the security risks that are of importance to the safety of a nation and its interests abroad. However, this cooperation of intelligence services comes with serious challenges to the legality and the legitimacy of the activities of both partners in the cooperation arrangement16. We have seen a serious backlash in Pakistan against the activities of a foreign intelligence agency. While it is necessary that intelligence agencies cooperate in order to combat terrorism, it is crucial that such cooperation shall be well documented, and must be in the interest of both countries. Cooperation between intelligence agencies which is shrouded in mystery, or which is not beneficial to both the States concerned, can result is serious backlash from the public, thus completely undermining the anti-terrorism efforts. Human Rights and Terrorism: A major casualty of the struggle against terrorism has been respect for human rights. Not only do terrorists violate the lives of innocents, but state authorities, too, stand accused of acting indiscriminately, opportunistically, and illegally in their moves to counter terrorism".17 It is submitted that one of the major issues with combating terrorism is that the steps taken by the executive may result in violation of an accused's human rights. It is critical that while enacting legislation, as well as when entering into international legal treaties, it is ensured that adequate protection is provided to the accused, and the accused is only convicted after due process of law. The States must ensure that the accused is not tortured, is not detained without a proper hearing, and is made available every opportunity of a free and fair trial. In the event that such protections are not awarded to the accused, the whole idea of rule of law is compromised, resulting in far reaching consequences for the society as a whole. The Universal Declaration18, as well as the International Covenant on Civil and Political Rights 196619, are the leading international legal documents which guarantee various human rights. It is submitted that the rights contained therein, as well as the fundamental rights as enshrined in the Constitution of Islamic Republic of Pakistan 1973, be made available to the accused before he/she is convicted of a crime. It is often argued that if one is to effectively and successfully combat terrorism, some of the human rights of accused will have to be put aside, in order to do complete justice. It is submitted with utmost respect that such a view is based on misunderstanding of the interconnection between human rights and counter terrorism. At this point, it would be apt to quote a para from a document prepared by the United Nations Counter-Terrorism Implementation Task Force (CTITF), which addresses this very issued in the following words, "We resolve to undertake the following measures, reaffirming that the promotion and protection of human rights for all and the rule of law is essential to all components of the Strategy, recognizim; that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing and stressing the need to promote and protect the rights of victims of terrorism..."20 There is an ongoing concern based on concrete evidence that the international campaign against terrorism has or will lead to violations of human rights, such as inappropriate detention, denial of access to defence, presumption of guilt, unfair trials and discrimination on racial grounds21. It is submitted that forced detentions and disappearances without due process of law only end up collapsing the whole legal structure. In addition, the confidence of populace in the courts and the judicial system substantially decreases when the accused's human rights are grossly violated. To this end, it is important to understand that, although sometimes portrayed as an obstacle to an effective response to the threat of terrorism, human rights are a key component of any successful counterterrorism program22, and consequently, it is recommended that any updates to anti-terrorism laws in Pakistan must be in conformity with globally recognized principles of human rights. Conclusion: It is clear that there are numerous international legal mechanisms already in place to combat transnational terrorism. What is needed is a task-force within Pakistan consisting of lawyers and jurists in order to conduct an in-depth study of international law frameworks, and thereafter recommend updates to the domestic law of Pakistan. Similarly, model Legislative Provisions Against Terrorism provide a comprehensive legal framework for dealing with various forms of multinational and transnational terrorism23, and the same can be used as a model law when updating the anti-terrorism law of Pakistan. However, it is submitted that the current international legal framework is by no means comprehensive and needs substantial effort and work by international organizations and States alike. For example, no specific witness protection measures are provided for in the universal anti-terrorism instruments, even though facilitating the taking of evidence and statements from persons is of particular importance in curbing such crimes. The perpetrators of terrorist acts should be prevented from undermining the integrity of the criminal justice process and attempting to evade law enforcement action24, and for that a witness protection program and other protections are necessary. This will ensure that fair and just trials of terrorists are conducted and justice is done. This is an example of how it is not only necessary to revise the substantive law to combat terrorism, but a revision to procedural laws is equally essential. What is needed is an overhaul of domestic anti-terror laws in Pakistan, including procedural laws, to make them in tandem with the provisions of international treaties and conventions. It is submitted that where a particular procedural issue is not addressed by international treaties, Pakistan can take a diplomatic lead by suggesting a fresh treaty governing procedural aspects of international anti-terrorism law. There is always an argument from certain quarters of the society, including some lawyers and jurists, that the menace of terrorism can be best addressed by non-legal mechanisms. It is argued that terrorism related offences are so complex that if legal and judicial protections are provided to the accused, it is likely that they will be released by the courts. It is suggested that our courts and judicial system is not structured to deal with such complex terrorism offences. I humbly disagree with such an assertion. Admittedly, trials may take very long, may cost a lot of money and may potentially even lead to the acquittal of a suspect. A targeted killing will certainly 'solve' those issues in the short-term. However, only a public trial will allow the world to see the strength of judicial processes and the rule of law25. In addition, what is required is that courts, judiciary, prosecution, and the wide rule of law mechanism is strengthened, such that acquittals are minimized and the crooked elements are brought to justice, albeit by purely lawful means. In the end and as a final comment, it is submitted that the effectiveness of the struggle against terrorism could be enhanced by the establishment of a generally agreed definition of international terrorism. However, the absence of such agreement to date has, inter alia, thwarted efforts aimed at adopting a comprehensive international, legally binding instrument regarding international terrorism26. It is therefore necessary that States convene, enact, and agree upon a comprehensive treaty on international terrorism governing both substantive and procedural aspects.