Mr. Ahmer Bilal Sufi - Supreme Court of Pakistan

1. INTERNATIONAL LAW ON TERRORISM1.1. Treaties and conventions on terrorismLets first enlist major treaties and conventions on terrorism under the auspices of the UN:Convention on Offences on-board Aircraft, Tokyo 1963Convention of Unlawful Seizure of Aircraft, Hague 1973Convention of Unlawful Acts against the Safety of Civil Aviation, Montreal, 1971Protocol for Acts of Violence at Airports, 1988Convention on Crimes against Internationally Protected Persons, 1973Convention on Physical Protection of Nuclear Materials 1979Protocol on Safety of 6 Platforms in Continental Shelf, 1988Convention against the Taking of Hostages 1980Convention against Recruitment, Use, Financing and Training of Mercenaries, 1989.Convention on Safety of United Nations and Associated Personnel, 1994Convention against Suppression of the Financing of Terrorism, 1999Convention on the Nuclear TerrorismAll these treaties are in the nature of law making treaties and they do not simultaneously serveas a constituent instrument of an implementing organization.1.2. No implementing mechanismIt should be noted, that the above conventions primarily create an obligation on the memberstates to cooperate with each other or to carry out prosecution procedures in accordance withtheir domestic laws. They also create an obligation to strengthen their domestic laws, so that itreflects the provisions of the above-referred Conventions.In other words, in most of these conventions, there is no organization being set up foradministering the text of the convention. The administration and the interpretation of the text isleft to the states. In the event of dispute, regarding the interpretation of the text, an option ofarbitration and subsequent access to International Court of Justice has been provided.

most of these conventions states are induced to emphasize bilateralism rather than resorting toa third party or international organization involvement.This is an attitude evident from the reservations attached by most of the states, while ratifyingthe instruments of these conventions. As referred above, these conventions do not set upinternational organizations for their implementation. They all carry provisions of identical nature,that in case of dispute of interpretation, the parties may refer the matter to internationalarbitration/failing which put up the issue to the International Court of Justice. Most of theexpressed reservations on the intervention of ICJ are to interpret the obligations forimplementation between the parties.This attitude needs to be revisited and the delegations of the member states need to bepersuaded that for effective implementation and ensuring cooperative mechanism, there shouldnot be any inhibition to involve an internationally recognized organization to facilitate theprocess of cooperation and implementation.It would be appropriate to undertake a study, whereby specific concerns of member statesexpressed through reservations are identified in respect of each convention. That study wouldalso highlight the subject matter and the scope of the convention, as well as the nature ofbilateral obligation imposed. These issues may arise from domination of International Law overdomestic laws or vice-versa and identify precisely the concerns based on which the memberstates have expressed reservations against intervention of any international organization for thecooperation under the convention or is it an issue of mere political reluctance.For instance, in International convention against the Taking of Hostages in 1979, Algeria, China,India, Saudi Arabia, Mexico, Venezuela and Turkey have expressed reservations and resistedthe compulsory adjudication by ICJ on interpretation of implementing provisions betweenmember states. Bulgaria in its reservation has actually attempted to broaden the implement ablescope of the convention and introduce a concept of institutional and ‘governmental’ terrorism asinferred from the language used in the said reservation. Lebanon, likewise, has qualified itsdeclaration to the effect that the right of people to oppose and resist foreign occupation ofterritories remains unaffected by virtue of the convention.

Again, in the case of Convention on Prevention of Crimes against the Internationally ProtectedPersons 1973, the pattern of reluctance by member states is quite similar. China, Brazil, Korea,Finland, Ghana, Indian, Pakistan and several other states have expressed their resistance tothe compulsory adjudication by the ICJ in the event of dispute on interpretation.One clear reason for this reluctance seems to be the ambiguous definition of “Terrorist Offence”in each of the Convention. None of the definitions is comprehensive or all encompassing.Therefore, the states feel that ambiguity of interpretation may turn against them. Until such time‘terrorism’ is not defined properly, with agreed qualification, the reluctance towardsimplementation shall continue.1.4. Global ratification is a pre-requisite for effective implementationThe member states need to be motivated for ratifying the Conventions. The response of thestates for adopting the same is rather less enthusiastic. By 1999, for example the 1979Conventions against Hostages had around 85 parties only. Forty states had signed the samewithout ratifying. It would be useful to evolve a strategy in order to persuade the 40 states,which have not yet signed it to enter and adopt the said convention. Likewise, in another lessorknown Convention of 1989 relating to the Recruitment, Use Financing and Training ofmercenaries, by 1999, there were only 19 states, which had ratified the said convention. The1973 Convention on Crimes against Internationally Protected Persons has been ratified by over102 states. Whereas 1997 Convention on Terrorist Bombing has been ratified only by about 12states.In these circumstances, it is highly desirable that for effective implementation the first and theforemost thing is that the member states should ratify/adopt these conventions. Besidesratifiication they should also at the same time incorporate them into their domestic legislation.Simultaneously, the member states also need to change existing domestic legislation, whichmay not be in conformity with the primary obligations of these conventions. Now, there is noeffective monitoring mechanism to oversee whether there is a formal campaign to persuade themember states to adopt the convention. There is no formal mechanism to track the states thathave ratified the conventions, to formally implement them into their local legislation.1.5. Monitoring of domestic legislation of States parties

The states, which have adopted a given convention through ratification, have no place to put onrecord the domestic legislation, which they have made for the implementation of the mainconvention. This is a crucial aspect of cooperative mechanism. The domestic legislation in thestates, particularly those, which have ratified the convention, must be taken note of, collectedthrough some international monitoring Body.It is suggested that the Terrorism Prevention Branch of UN in Vienna may be converted into aseparate Secretariat and entrusted to oversee the process of ratification of the existingconventions. They should monitor the domestic legislation being made, understand theconcerns and reservations of the member states in respect of the existing conventions, evolve aprocess of assurance and confidence building amongst the member states, as the reservationsmerely creates an embargo in the smooth implementation..The Secretariat suggested to be established for these purposes could be created by theresolution of UN Security Council. That seems to be the only shortest possible and effective wayof creating an organization, which can be given this duty. The existing Anti-Terrorism branch inVienna could be given this assignment. The scope of such an organization must include allissues arising from implementation including issues such as the framework of terrorism.2. United Nations RESOLUTIONS ON TERRORISMBy virtue of several UN Resolutions, passed both at Security Council and at General Assemblyover the last almost two years, the legal jurisprudence of law on terrorism has developedtremendously.These Resolutions have considerably filled in the gap left by Treaties or Conventions. Further,they create ‘immediate’ obligations on member states. We all know that Treaty or a Conventionrequires a long time before its text is finalized or it is entered into force.It was interesting that 11 September episode was not covered under any single convention onterrorism. Therefore, one had to look at the spontaneous work of Security Council and thenature of law on terrorism that it had generated.

The second set of Resolutions was passed after September 11 and show a dramaticprogression in the implementation of the law against terrorism. We first discuss the resolutionspassed before 11 September.All the resolutions passed by Security Council (SC) before 11 th September are primarily underChapter 7 of the UN Charter, which means they have the legal and constitutional force forimplementation.A committee of experts was appointed under S.C. Resolution 1333 and another Committee wasestablished under SC Resolution 1267. The monitoring mechanism for these Committees wereidentified in Resolution 1363. The purpose was to offer assistance to the states borderingAfghanistan. SC Resolution 1363 sanctioned the creation of enforcement support committee of15 members, which specialized in the areas of border security, counter terrorism and customsetc. The committee was required to report to SC periodically. Apart from the enforcementsupport team, a Monitoring Group of 5 members was also established, in which experts interrorism, finances and money laundering were inducted.Thus, prior to September 11, the above-referred 3 Resolutions of SC namely 1363, 1267 and1333 established a coherent regime of enforcement of anti-terrorism measures, specifically inthe context of Afghan issue. However, it must be noticed that since they were related toAfghanistan, there was no issue discussed regarding the outline of the nature of terrorismactivity that was being referred to. One of the basis was that Osama Bin Laden stood indicted inUSA and therefore, was required by SC to be delivered either to USA or to any other thirdcountry. Since the Taliban Regime refused to hand him over, the SC placed the Taliban Regimeunder sanctions and the above-referred mechanism was set into motion for the monitoringpurpose. No need was felt to identify as to what constitutes ‘terrorist activities’.2.4. Resolutions after September 11The 11 th September event however changed this entire scenario. It re-emphasized the need toidentify precisely the features of terrorism independent of its motives, surrounding

circumstances, and other political issues. The attack of September 11 th was a peculiar legalevent, as it was not covered by any single convention on terrorism that was in force at the time.Therefore, the incident unmasked the inadequacy of the legal environment to address issues ofglobal terrorism. The situation demanded extra-ordinary measures.Resolution 1368 of 12 th September was argued to have authorized the collective armed actionin Afghanistan against Taliban Regime. The language generated a legal debate about the limitsof such authorization.However, under Resolution 1373, adopted on September 28, 2001, the Security Councilestablished an Anti-Terrorism Committee comprising of all its members. All member states wereobligated to report to the Committee, reagarding the steps they have taken to implement thisresolution. 1373 is the single most important resolution since it advances the implementationmechanism against terrorism beyond the limits set out in Conventions.On November 12, 2001 Resolution 1377 was passed which re-affirmed that internationalterrorism and its method are criminal and unjustifiable regardless of their motivation and in alltheir forms and manifestations.More recently, the Security Council has passed several resolutions that address issues relatingto terrorism including incitement as part of terrorism, nuclear terrorism and declaring non-stateactors as terrorist organizations by extending the mandate of existing resolutions.3. DEFINITION OF TERRORISMThere is no agreed definition of terrorism. In fact, in no single international instrument, ‘terrorism’has been defined, although there are extensive references to ‘terrorism’, or ‘terrorists’, in severalinternational instruments.Ordinarily an indiscriminate use of force, without making distinction between protected personsand military targets in order to coerce the government, to act contrary to its will would bereferred to as terrorism.

However, defining terrorism carelessly may have adverse consequence for neighboringconcepts, such as the right of self-determination.Drawing a line between the definition of terrorism and the use of force in genuine exercise ofright of self-determination is likely to be a nightmare.For example, in the 1974 UN General Assembly Resolution aggression was defined, andselective acts were enlisted that may be called aggression. Yet in the same Resolution, it wascategorically stated that nothing in the definition of aggression would prejudice the right of selfdetermination.In the conventions on terrorism discussed above, each convention defines terrorism withreference to the subject matter that it deals with. Thus, each convention provides limited andrestricted definition of a terrorist act covered by the said convention. However, there is nocomprehensive agreed definition of what is terrorism. This confusion further compoundsbecause while attempting to define terrorism, the motive of a terrorist strike is also forced intothe formulation of definition. This is really a non-starter. Because it kick-starts the controversy ofdistinguishing the ‘terrorist’ from the ‘freedom fighter’.Nevertheless, we herein examine how terrorism has been described and referred to, by therecent UN Security Council Resolutions, and how these references have helped evolve theparameters within which the ‘terrorism’ needs to be defined.3.1. Limiting definition of ‘terrorism’ to the ‘act’ onlyIn SC Resolution 1377, the paraphrasing of condemning terrorism, effectively disassociated thepolitical motive of using force from the act of terrorism itself. Now terrorist strike is to be dealtwith on stand-alone basis and not to be linked up to the causes associated with it.In other words 1377 stated that we do not care who is carrying out a terrorist strike. We do notcare what the political motive is. We do not care if that motive is right or wrong. Pious ormalafide; if the use of force is in the nature of a terrorist strike, then the individuals who carry outthat strike will become responsible for the consequences of that terrorist strike.

Interestingly, this formulation was not original. 1377 seemed to draw it from various articles bothin the Conventions against Financing of Terrorism and in the Terrorist Bombing. However, theConvention did not enjoy the wide adoption to implement this formulation whereas the SCResolution by its very nature was a direct obligation on its members.3.2. Self-determination and terrorismThis formulation of the Security Council Resolution has been misunderstood as well. A generaland an over simplified view is that all conceptual arguments justifying use of force have endedand therefore, the right of self-determination, the right of freedom struggles who are using force,stands extinct. This is not a correct view.All that 1377 does is that it merely separates the legality and the justification of using force itself.Now onwards the act and event of the terrorist strike will be judged on its own merits.For example, if it is against the civilians directly, and no military target is involved thenwhosoever does it ought to be responsible. Likewise, if someone raises out a genuineresistance act against a military use of force and in doing so, it inflicts civilian causalities as anancillary damage in that case the said act will not be viewed as a terrorist strike.Therefore, the Resolution 1377 at one level, distances the political justification of using forcefrom the act of terrorism, and at another level creates a confusion and emphasizes the need toidentify more clearl,y as to what constitutes the ‘terrorist act’? What should be its precisefeature? What should be identified as an act of terrorism, for which an organization, group ofpeople or a state could be held responsible? If the act in question is, by its very nature a‘terrorist act’, then only the individual perpetuator of the said act must be held responsible. Thatperpetuator could be a freedom fighting movement, it could be a guerilla movement, it could bea government, it could be group of people and it could be a genuine ‘terrorist act’.This is a dramatic forward position in the understanding and perception of the concept of‘terrorist act’. Whosoever, has to be entrusted with the responsibility for the implementation andmutual cooperation has also to undertake this assignment to make it clear, that the motives ofterrorist strike will have no bearing on the legality of the purpose of strike. Further, who willidentify exactly the features of a terrorist strike? This would be the main controversy in the

process of implementation. Security Council understandably did not have time to resolve thiscontroversy.One feels that this issue needs to be highlighted much more clearly. In this regard, it issuggested that given the parameters in Resolution 1377, which is to be read into 1373 as well, itwould be now necessary to:a) Define and identify the features of terrorist strike;b) Disassociate the terrorist strike from the legality, justification or illegality of the motives; andc) Restrict responsibility to the individual unless there is court worthy evidence of linkage to anyentity of state, or a state itself.3.3. International Humanitarian Law and definition of terrorismThe legal regime of International Humanitarian Law can be used to identify the features of whatought to be terrorism. Terrorism would be extremely close to the violation of InternationalHumanitarian Law. As we know that the entire customary and treaty framework of IHL includingGeneva Conventions and Hague Regulations etc. prohibit direct targeting of protected persons,but does allow ancillary damage in case of military necessity. The definition of terrorism needsto be pegged close to this framework. But in the case of IHL, where legality or justification of useof force is not relevant, the use of force or its motive will have no relevance or bearing on thestrike. The event of terrorist strike has to be assessed on its own.3.4. Rome Statute and definition of terrorismIn this regard, Pakistan delegation would also invite the attention to Articles 8 & 9 of theInternational Criminal Court or the Rome Statute. The said provision enlists in detail the specificacts that constitute war crime and genocide. An event of terrorist strike either would beduplicating any of those specific events or could be in close conceptual proximity of the said

concepts. Nevertheless, article 8 & 9 of the ICC do provide a very valuable basis for undertakingthe work to identify the features of a terrorist act.3.5. Why definition of terrorism should be restrictive?In other words while undertaking the process of defining terrorism or locating its features withinthe parameters laid down in SC Resolution 1377 for effective implementation, it is absolutelynecessary to de-link from the reasons for undertaking the terrorist strike. Therefore, as long asthe definition of terrorism excludes the motive, the purpose and the background, the scope ofcontroversy will stand reduced and the member states will feel much more comfortable to agreeon consensual definition of terrorism and then enter necessary cooperation.Thus, on one hand, it will enable consensus on the terrorism definition, And on the other it willallow those states, which have sensitivity to support freedom fighters movements or movementsfor self-determination or genuine political resistance to continue with their support, sincemovements or the freedom struggle, as the case may be.3.6. Necessity for defining terrorism in the context of mutual assistanceThe issue of mutual legal assistance on the preventive side is where the implementationprocess is clearly lacking. The state parties shall take practical measures to prohibit in theirterritory, activities by people or organizations which may constitute the offence under theconvention itself. Such provision inherently suffers from a grey area, since it is not quite certainthat at what stage preventive measures are to be taken? How would the parties communicatewith each other in terms of the outline of the offence that is to be covered by the internationalconvention?For example, Article 5 of the 1997 Convention on Terrorism Bombing incorporates in itsdefinition certain elements of terrorism strike. However, it still leaves plenty to guess. Forexample, it says it will be an offence where the intention is to ‘prove’, a state of terror in generalpublic or in a group of people or particular person, which will not be justifiable on political,ideological or religious grounds. Again, it is less clear what precisely would be the nature ofoffence in respect of which, there is a desire for mutual legal assistance.

Therefore, we cannot help notice the necessity for arriving at a consensual definition ofterrorism which shall encompass the details and also comprehensively attend to all issues of theevent, irrespective of its justification.4. OTHER OBLIGATIONS UNDER THE UN RESOLUTIONS4.1. Obligation to resolve regional conflicts: Kashmir for instance1377 stresses the member states to address regional conflicts that are a hurdle in the possiblefight against international terrorism. Thus, 1377 raises the fundamental issue of addressing thequestions of reasons of terrorism and removing their causes. That is why in 1377 the word‘addressing regional conflicts’ has been used. It is common knowledge that resorts to terrorismis an extreme act of frustration on part of certain resistance movements. The act certainlycannot be justified. Nevertheless it is based on extreme disappointment, and after knowing thattheir political solutions have failed and completely turned down.Therefore, it would be particularly urgent that within the framework of resolution 1377, allregional conflicts, or all places where terrorist strikes take place must be examined andmeasures be undertaken for political resolution, especially,where it is reasonably evident thatterrorist strikes are a frustrated outcome of political failure or disappointment.For example, in the recent case of Sri Lanka, it has been noticed that the terrorist strikes byTamils have significantly reduced after an attempted political resolution of the issue. It was thusevident that the Tamil strikes were an act of extreme disappointment. Therefore, addressingregional conflicts within the framework of any resolution,is an issue of grave importanceSame could be mentioned in the case of the territories of Kashmir, where people inside thevalley have been struggling for their right of self-determination, and having beencomprehensively frustrated by the Indian Government’s active discouragement and repressionwho did not consider their genuine political demand. In certain cases, Kashmiri’s resorted toviolent means, which were viewed as acts of terrorism. Therefore, they are a classical exampleof “regional conflicts” within the meaning of Resolution 1377, which must be addressed by UNSecurity Council in the process of implementation.

It is well known that the state, which presumably suffers the act of terrorism, uses the argumentof anticipatory individual self-defence in terms of Article 51 to strike back at the state to which itattributes the terrorism. This right of individual self-defence is alive until such time SC has nottaken cognizance of the issue. Once the SC is seized of the matter, then the right of unilateralstrike by a member state is curtailed tremendously. Under 1373, SC is seized of the matter onterrorism and therefore inherent individual and collective rights of self-defence in terms of article51 of the UN Charter stands displaced. This needs to be highlighted for the member states that1373 being cognizant of anti-terrorism activities has drastically curtailed the individual right tostrike against terrorism.4.2. State or institutional terrorism: more questions than answersSimilarly, the concept of institutional terrorism stands retained and it would create complicationat the stage of implementation. One may invite attention to Article 19(2) of the Convention onTerrorist Bombing. Here rightly so, the use of bombs during armed conflict stands excluded.However, the use of organized weaponry of the explosive nature, which creates a state of terrorin the general public is not excluded and therefore, it is quite evident that any action by thepolice authorities of a state, against its subjects would be an offence itself if it fulfills thedefinition..Thus, we are straightforwardly talking of a state sponsored terrorist act where effectively theentire features of definition of terrorist strike are fulfilled. The state institution itself does it, and itis done against its own subjects. In this eventuality although in terms of technical issue, there isno international element and therefore, the Convention may not be applicable. Nevertheless, itleaves at a political level; a very general dissatisfaction on part of the state itself that it isextremely irresponsible treatment of its local affairs can go unguarded and can given a right tocall for individual or a few individuals across the border, which might be in the third state.This anomaly in the implementation regime needs to be addressed at a certain stage or acertain level.4.3. Summing up the legal points in the twelve Conventions on Terrorism

From the reading of the relevant provisions in the 12 Conventions on extradition, mutual legalassistance and law cooperation, the following points and positions emerge;States that are parties to these Conventions cannot act ‘outside the relevant Convention’ toachieve the objects of the Convention. They are bound to resort to the implementingmechanism within the Convention. Use of force to achieve any objective that is within the scopeof the Constitution, is contrary to spirit of uniform implementation of the Convention; [2]Most of the offenses in the Conventions are being treated as offences of universal jurisdiction(any state can try without a duty to extradite);Terrorism is being treated in Conventions also as an offense at par with the offences havinguniversal jurisdiction;Therefore, the obligation on a requested state to extradite a terrorist, under the conventions isnot absolute. In other words, within the reason given in the Conventions, the extradition can berefused;In case state refuses extradition, then it has a duty to prosecute the offender. Provided sufficientinformation is given by the state that requested extradition;All Conventions make only individuals and not the state, responsible for the acts of terrorism;In all 12 Conventions, the States to which the terrorist may belong are not held responsible forthe acts of its nationals having terrorist nature. There are no provisions to spell out any liabilityagainst the state to which the offender may belong;Some Conventions provide general cooperative obligation on the state parties to take‘measures to prohibit in their territories illegal activities of persons, groups etc’ [3]. However,there are no penal consequences provided in text of any convention, if the same is not done.Therefore, the said obligation is persuasive in nature and failure to do so would not imply breachof obligations under the Convention;

Such cooperative measures would include legislative or executive orders to declare suchactivities illegal. None of the Convention requires the Member State to achieve completeelimination of terrorist related activities or groups. The words used are to effect ‘measures toprohibit’ [4] and not “will ensure complete elimination of terrorist activities”.Therefore, once the state takes legislative and administrative measures to ban the suspectedgroups, it is deemed to have fulfilled its obligations under the Convention concerned;Conventions are not applicable on military forces of states when they commit acts qualifyingoffences of terrorism. However, it appears that members of local police force are not exemptedfrom individual liability if their acts qualify as a terrorist act; [5]The definition of terrorism in each of the 12 Conventions is limited within the framework andscope of the Convention. Thus, none of them is a comprehensive definition;The 12 Conventions confine their definition of each terrorist act with reference to the event oract of terrorism. None of them adversely comments on the motive and purpose of those whocarried out the terrorist attack. None of the Convention declares the motive and purpose asillegal, merely because they used forced in the nature of terrorist strike. In fact, it protects themotive or purpose. [6] Likewise, Resolution 1373 disassociates motive from the event;Therefore, the purpose and motive behind carrying out the terrorist strike remains unaffected. Inother words if the individuals representing freedom movements are found attributed to an act ofterrorism then only they will be responsible in their individual capacity and the movement itselfshall not suffer any adverse legal consequences; perhaps apart from political loss;Terrorist bombing is a ‘strict liability offence’. Under this, the connection of the offendingindividual needs to be established with that of the fact, and not mental intent needs to beestablished. Thus, the motive is in any case irrelevant;The Convention on the Financing of Terrorism allows use of force by freedom movementagainst the Government in peaceful time. The offence of terrorism, as defined in article 2(b)makes it clear that terrorist strike to coerce a government is terrorism only during armed conflictsituation; and

The Convention against Financing of terrorism requires extensive domestic legal measures forfinancial discipline. Government of Pakistan is doing the same through an Anti-CorruptionStrategy being evolved by NAB4.4. UN Draft Convention on TerrorismAs we have mentioned above, before 11 Sept, there were 12 basic international Conventionsrelating to terrorism. Most of them related to only selective aspects of terrorism i.e. hijacking,civil aviation, nuclear materials and platforms in Continental Shelf etc. None of the Conventionaddressed or defined terrorism as a wholesome concept. Thus, a need was felt for acomprehensive convention on terrorism directly. In this regard, UN General Assemblyestablished a Special Committee called the 6 th Committee and tasked it to prepare a draft of thisConvention. In this regard, the draft submitted by India was accepted for discussions. Now afterseveral sessions, the text of the Convention is almost finalized except preamble and thedefinition of terrorism.Conclusion:In order to fight terrorism, we need to evolve constructive strategy for legislative harmony thatwould allow successful prosecution of terrorists, their advance approach in laundering anddisguising their assets.The existing conceptual framework of international law, as evident from this paper, is notsufficient to respond to the challenges that states face; including Pakistan.Pakistani statute on terrorism is comprehensive and charges can be framed under it in respectof most of the offences of terrorism in the international conventions.________________________[1] Advocate Supreme Court of Pakistan and President Research Society of International Law.[2] India’s military built up is thus contrary to the spirit of the cooperation on implementing mechanism.[3] Article 15(a) of the Convention on Terrorist Bombing 1997.[4] Ditto.[5] Article 1(4) and 19(2) of the Convention on Terrorist Bombing 1997.

[6] Article 19(1) of the Convention on Terrorist Bombing 1997.