20 August 2002

Law Relating To Freedom Movements And Terrorism

Surridge & Beecheno


Surridge & Beecheno
Pakistan Corporate/Commercial Law
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Presented at the Pakistan Supreme Court International Law Conference on "Peace Through Law" held at Islamabad on 29-31 Mach 2002

1. The world has witnessed Freedom movements through centuries, but the one that made a mark on history is the Americans war of independence against British initiated during the year 1770 by throwing tea chests off-board the ships in sea at the Boston harbor, resulting in violence, political resistance and war between the British and the American colonists, finally, getting America its independence from the British occupation. Since then and particularly after the first and second world wars number of freedom movements took place in various parts of the world, resulting in creation of number of independent States, in Africa, Middle East and South East Asia from occupation by British, Dutch, Portuguese and Spanish Empires. Similarly, after the fall of Soviet Empire again through freedom movements number of countries have emerged as independent countries in Eastern Europe and Central Asia, but none of these freedom movements was classified as terrorism. The Northern Ireland violent freedom movement from Britain both within Northern Ireland and also in Britain has been going on for almost half a century. Those responsible for freedom movement adopted militant and guerilla action wherever possible, yet at no point of time were the movements or actions on the part of IRA classified as terrorism, nor did the British Government declare a war or take military action against Northern Ireland.

There does not appear to be any specific law relating to freedom movements. However, the United Nation Charter states one of its purposes is to promote and encourage respect for human rights and for fundamental freedom for all. To my mind, this should include freedom struggle against colonial occupation of people, or racist or repressive regimes violating human rights on the basis of race, language or religion.

In this respect one can rely on the United Nation General Assembly agreement of 1973 on the legal status of combatants struggling against colonial and racist regimes for the right to self-determination. The principles agreed are:-

i) such struggles are legitimate and in full accord with the principles of international law;

ii) attempts to suppress struggle against colonial and racist regimes are incompatible with United Nation Charter, the Universal Declaration of Human Rights and the Declaration on the Granting of Independence to colonial countries and people as well as with the principles of international law concerning friendly cooperation amongst States.

The 1948 United Nation Assembly’s adoption and proclamation of universal declaration of human rights can also be relied upon, which recognizes inalienable rights of freedom to all human beings.

The world has witnessed a change since the 11th September attack on World Trade Center and Pentagon and freedom movements are likely to suffer being labeled and dealt with as terrorism.

2. Terrorism is older than the word itself, which has roots in the "Reign of Terror" during the French Revolution. The practice of threatening, injuring or killing innocent people for political, religious or other ideological reasons goes back to at least Biblical times. Zeal (Greek for "jealous") is the basis of zealot – the name given to a Jewish sect that led a bloody uprising against Roman occupation 2,000 years ago. And thug (Hindu for "thief" based on Sanskrit "sthagati" for "concealed person") originally referred to a member of a band of killers in India who waylaid and strangled travellers as part of a religious ritual.

Would "zealots" and "thugs" be considered terrorists today? There is disagreement over what the word means. Richard Baxter, a judge on the International Court of Justice, once said: "We have cause to regret that a legal concept of 'terrorism' was never inflicted upon us. The term is imprecise; it is ambiguous; and above all, it serves no operative legal purpose." Similarly some people have reacted to a different famous comment, in 1964 by U.S. Supreme Court Justice Potter Stewart who admitted it might be impossible to "intelligibly" define obscenity, but quickly added "I know it when I see it."

The world awoke to the word "terrorism" only after the 11th September 2001 when civilian planes hit the World Trade Center and the Pentagon. Prior to this, the Middle East, Philippine, throughout Africa, Indonesia, India and several countries have witnessed violent movements against the government in power or the occupation forces, but none of these was ever termed as terrorism. The latest example is East Timor, where the United Nation even brokered peace and independence from Indonesia.

The word "terrorism" has many approximate meanings and it evades exactitude. It is like many abstract words which different people understand differently. The meaning is usually given to an idea or thing by classification and generalization by finding its purpose, goals and functions. Often the opposite clarifies the meaning more sharply such as the meaning of light is the absence of darkness. It, therefore, relates something to something else to appreciate similarities and differences.

The interesting thing about human language is that it defies logical build-up, that meanings change with the change of time. It always keeps pace with the user’s social development. Meanings are always not those found in the dictionary or lexicon. For example, the pitch of the voice, phonetic distortion and facial expressions can easily give a twist to the established meaning. Language is not simply patterns of noise. No matter how systematic noise is. It cannot be a language until it has been given a meaning and it derives the meaning largely from its use in real-life situations. Now take the word "terror". It can be as harmless as to say "It is terrible weather", or "I am terribly sorry" or "I am sorry I am terribly late". But at the same time, terrorism has come to mean many horrendous things. It seems to have become a word incorporating all such words as fear, horror, intimidation, breaking of the law, madness, oppression, panic, repression, savagery, scare-mongering, shock, threats, turmoil, war of nerves, etc. From this collection of words, it crashes down to nefarious deeds such as random shooting in public places and bomb blasts.

The word terrorism came for discussion before the United Nations during the conference in Durban, South Africa, when the organization was sharply criticized for deep divisions over racism. The world today is certainly not united over the definition of "terrorism". During the past few decades, the United Nations has adopted a dozen protocols and conventions that condemns global terrorism, which urge countries to fight and banish it from the face of earth, as said by its Secretary General Kofi Annan. But the members of the United Nations have not been able to sit down and agree on exactly what they are talking about.

As far back as 1937, the League of Nations tried to settle the matter. It defined "terrorism" as "all criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public". But the draft proposal was never ratified.

A 1999 United Nation resolution reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.

After the 11th September attacks and a 5-day debate at the United Nations, the General Assembly once again declared that terrorism is a threat to worldwide peace, but during discussion it was clear that many members did not consider what they call "legitimate attempts by people to resist foreign occupation" as terrorism. When a suicide bomber kills a crowd of shoppers in Israel is it "terrorism" or merely tragic violence in a war over territory? Or when Kashmir Freedom Fighters hurl a bomb at Indian Security Forces is it terrorism? What if only soldiers are killed? If troops end up shooting unarmed civilians is it State terrorism? And how should the world see governments that help foreign militia overthrow existing regimes and governments, as has been practiced by the intelligence agencies of the West throughout the last century.

3. Since the United Nation has failed to come up to a universally acceptable definition of terrorism, some of the western countries have gone alone in defining terrorism to suit their own purpose.

i) The Canadian government tabled a legislation expected to pass soon which states, "Terrorist activity is an action within or outside Canada that is taken or threatened for political, religious or ideological purposes and threatens the public or national security by killing, seriously harming or endangering a person causing substantial damage that is likely to seriously harm people, or by interfering with or disrupting an essential service, facility or system".

The Canadian Security Intelligence Service (CSIS) Act compels its members to investigate activities "directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state."

According to a CSIS report last year, "this distillation of terrorism into its basic elements makes no effort to ascribe value to the motives of the actors, and gives equal weight to terrorist acts directed toward foreign states and to persons who provide support for such acts. Terrorist violence and activities in support of such violence may be carried out in the name of independence, freedom, or religious belief, but Canada has chosen through its legislation to give first consideration to the act of serious violence, not the nature of the cause."

ii) The US State Department relies on its own guideline in Title 22 of the US Code, Section 2656f(d), "The term ` terrorism’ means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents, usually intended to influence an audience". The use of the word "noncombatant" implies civilian and unarmed military support staff. The word "subnational" excludes the possibility that a country’s own national government could be directly guilty of terrorism.

iii) Last year, Britain introduced a similar law that prohibits threats or actions "designed to influence (any) government or to intimidate the public (in any country) … for the purpose of advancing a political, religious or ideological cause." Critics also think that the illegal "actions" referred to in this legislation are far too broad. They argue that vandals damaging property or disrupting phone lines might be considered terrorists, and that the phrase "serious risk to health" could include a union going on strike at a hospital.

4. In addition to outlining what constitutes terrorism, some countries have also drafted lists of groups that fall into the category. Critics view the practice as arbitrary, especially since the evidence collected is sometimes not made public on grounds of national security.

It's worth noting that the entries are regularly updated. Washington, for instance, recently revised its Federal Register. The Japanese Red Army and the Peruvian group Tupac Amaru were dropped. The Real IRA, accused of the 1998 bombing of Omagh in Northern Ireland, was added.

The original IRA, whose political wing, Sinn Fein, is involved in peace negotiations, remains off London's list. But Hezbollah, which holds seats in Lebanon's parliament, is considered a terrorist outfit.

Skeptics question the criteria used for classifying some organizations as terrorists. For instance, until the early 1980s Iraq had a prominent spot on the U.S. list of countries supporting terrorism. When Baghdad went to war with Iran, one of America's bitter enemies, it was removed from the scroll. After the fighting stopped, Iraq was put back on.

Over the time, some of the decisions made by governments have become conspicuous reminders of how subjective the process can be. For example, former South African president Nelson Mandela, who won the Nobel Peace Prize for his struggle against apartheid, was once branded a terrorist.

Scholars like Noam Chomsky , an American linguist well known for his criticism of Washington foreign policy, in his book "Necessary Illusions" contends that the meaning of the term "terrorism" is not seriously in dispute, because it has been laid out in so many government documents, including the official U.S. Code. He then cites a U.S. Army Manual’s definition, which states, "the calculated use of violence or threat of violence to attain goals that are political, religious or ideological in nature. This is done through intimidation, coercion, or instilling fear". Based on these words, Chomsky goes on to argue that the United States itself actively supports international terrorism on a scale in many countries that puts its rivals to shame.

It appears, therefore, the western countries are laying their own definition of terrorism to suit their individual purpose, the world having not come up with a universally acceptable definition. However, recently in Istanbul at a conference of European Union and OIC the participants have unanimously come to a conclusion and given a slogan, "terrorism has no religion". I think, this in itself is an achievement because otherwise after the event of 11th September the world was moving towards the conflict of civilization. It is an irony that terrorism has been going in Ireland both within and outside Ireland but those responsible for violent attacks are being called loyalists, nationalists, separatists and were never labeled as terrorists. In Sri Lanka terrorism has claimed thousand of lives since quarter of century and those responsible are called Tamil tigers or Tamil separatists but not terrorists. Recently, in Nepal there have been terrorist attacks killing hundreds of policemen and civilians but those have been termed as Mao separatists and not terrorists, whereas in Palestine and Kashmir, the people are struggling against illegal occupation of their homeland and are being labeled as terrorists. It is unfortunate that wherever Muslims are fighting for their survival/independence, the term terrorism is commonly used both by the western countries as well as western electronic and print media. It is, therefore, imperative, the West in particular and the United Nation should find a universally acceptable definition of terrorism to avoid freedom movements by Muslims in particular and generally by others, being labeled as terrorism.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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