ENVIRONMENAL JUSTICE : RYLANDS TO MEHTA€¦ · Web viewThe 1963 Tokyo Convention on Offences and Certain Others Acts Committed on Board Aircraft, 2 ILM (1963), 1042, the 1970 Hague

STATE SPONSORED TERRORISM STATE RESPONSIBILITY AND SELF-DEFENCE : THE

INDIAN CONTEXT

B.C. Nirmal

I - INTRODUCTION India has been a victim of the cross-border terrorism sponsored

by Pakistan for the past nearly two decades and has lost tens of thousands of innocent men and women and security forces. The world very well knows how Pakistan's trained and supported militants hijacked the Indian Airlines plane in 1999 and brought that to Kandhar and the invidious role played by Taliban at that time. There was a terrorist attack in the historic Red Fort in Delhi followed by an attack on the Jammu and Kashmir Legislative Assembly. A Pakistan-based terrorist organisation Jaish-e-Mohammed claimed responsibility for the terrorist strike on the J & K Assembly and named a Pakistani national, based in Pakistan as one of the suicide bombers involved. Ironically, that suicide attack took place a day after the Pakistani President announced on Television that Pakistan had no terrorist groups operating in India. But India's endurance and patience reached the breaking point when on December 13, 2001, Pak trained terrorist suicide squad struck the Indian Parliament. As the prime Minister Vajpayee observed the terrorist attack was 'an attack on our sovereignty, on our national self respect, and it was a challenge to our democratic system'. The only way to defend ourselves, according to the political establishment, is by forcing Pakistan to end stop cross-terrorism. With this objective in mind India has launched a diplomatic offensive and also deployed its army on the frontiers (which at the time of this writing has been pulled out). As in the past the U.S., Britain and other allies in the American War on terrorism tried to play down the event by advising India to show restraint and have a talk with the President of Pakistan who after obtaining American certificate of a trusted 'friend and ally' is in no mood to accept the four demands that India had made in the wake of the terrorist attack of December 13, India's demands are : handing over of the 20 terrorists; closure of facilities, training camps, arms supply, funding and all direct and indirect assistance, stoppage of infiltration of arms and men from Pakistan into Jammu and Kashmir and unambiguous renunciation of terrorism in all its manifestation. Although under pressure from Washington the President of Pakistan in his January 12's address expressed his resolve to take on extremism and has also taken some phoney actions on terrorism, it has flatly refused to accept the legitimate demands of India .

B.Sc. LLM. Ph.D. (Law), Professor, Faculty of Law, BHU, Executive Editor, Banaras Law Journal and Member, Executive Council of the Indian Society of International Law, New Delhi.

32-33 Ban.L.J.(2003-04) 137-156

138 THE BANARAS LAW JOURNAL [Vol.32-33

In the present circumstances what are India's options to put an end to the Pakistan's 'covert aggression," Should a country of a billion population with more than 1.2 million soldiers on active duty and having advantage in conventional weapons and also an edge in nuclear war vis-a-vis its adversely just lament? India has undoubtedly a right to defend its territorial integrity, sovereignty, values and freedom with all the resources it can command against cross-border terrorism. Says the Prime Minister "India does not want war, India has never been an aggressor in her long history. But we have a sovereign right to defend ourselves against cross-border terrorism, which is a proxy war that is already thrust on us . Pakistan will be solely responsible for the consequences of encouraging terrorism against India and when, expedient, turning a blind eye to terrorist group with transnational linkages operating from its soil". Thus, India has not ruled out the possibility of military option.

This scenario provides an immediate context for undertaking a review of the existing international framework for regulating state-sponsored terrorism.

II. STATE - SPONSORED TERRORISMAs the phenomenon of state sponsored terrorism has proliferated

since the mid-1970's, so has it received the increasing attention of Governments, politicians and the general public. As the name itself suggests, this type of terrorism is 'sponsored' by one State against another State, though the degree of sponsorship may vary from case to case. It can consist of such things as the supply of financial assistance, training, arms and travel documents to terrorist groups which, more or less have their own agenda. State sponsored terrorism is also committed when a sponsoring State directly controls terrorist activities aimed at the enemy state. In either case state sponsorship of and involvement in international terrorism is likely to greatly increase the destructive potential of a terrorist group. It is in fact a form of a relatively inexpensive surrogate war by which a State may strike its enemies in a way that is less risky militarily than conventional armed conflict Involvement of a State in this type of terrorism may take several forms. Lambert refers to the assassination of opponents of political regimes by a State's agents and the destruction of the Rainbow Warrior, a ship owned by the environmental group 'Greenpeace' and involved in protesting French nuclear testing in the South Pacific as examples of state-sponsored terrorism.1 but the better view is to consider them as examples of state- terrorism as these are directed against political opposition rather than against the security of another State. Actually the expression 'state sponsored terrorism' is so imprecise and confusing that distinguishing this type of activity from individual or state terrorism may be difficult in some cases. This is exemplified by the Iranian Hostages case in which 1 Joseph J. Lambert, Terrorism and Hostages in International Law

(1990), p. 21.

2003-04] STATE SPONSORED TERRORISM STATE RESPONSIBILIT 139

the initial seizure and detention of the American diplomats and civilians in Tehran took place solely at the initiative of the students but their subsequent holding was supported and even controlled by the Iranian regime, Stohl and Lopez have called it state-terrorism2, while Wilkinson has referred it as state-sponsored terrorism.3

The concept of 'state-terrorism' refers to free 'conduct by the organs of the state against its own population, whether the entire population, a certain segment thereof (such as a minority community or political opposition), or the population of an occupied territory'.4 While individual terrorism is usually anti-state violence, the purpose of State terrorism is to enforce the authority and power of the State. This type of activity hardly fits within the scope of international terrorism in view of the absence of an internationalizing element. But if the scope of State terrorism is expanded to include State action on the international plane, such actions will constitute an act of international terrorism. In this context it may be noted that the United Nations document of 1973 refers to a concept of State terrorism held by some states as:

"terror inflicted on a large scale and with the most modern means on whole populations for purposes of domination" or interference in their internal affairs, armed attacks perpetrated under the pretext of reprisals or of preventive action by states against the sovereignty and integrity of third States, and the infiltration of terrorist groups or agents into the territory of other States."5

Writers like Stohl expand the scope of state terrorism to include 'coercive diplomacy', 'covert behavior and 'surrogate' terrorism6 while others favour further expansion of the concept to include almost every type of objectionable act that a State may take on the international level. According to the latter view military maneuvers and war games in the vicinity of another State which presents a threat to that other State, 'the development, testing and deployment of nuclear and space weapons systems'. and the transport of nuclear weapons through the territory of other States and international waters would qualify as acts of state-terrorism.7

2 Stohl & Lopez (eds.), The State of Terrorist (1984), 563. On State Terrorism, see Berman & Clark 'State Terrorism : Disappearances', Rutgers Law Journal, (1982), 531.

3 Wilkinson, Terrorism and the Liberal State (2nd ed. 1986), 280 withregard to assessination of opponents abroad Wilkinson calls it state-sponsored terrorism, while Laqueur has referred to it as State-Terrorism. Laqueur, The Age of Terrorism (1987), 145.

4 Lambert, n. 1, at 15.5 Report of the Ad Hoc Committee on International Terrorism, UN

GAOR, 28th Sess, Supp. 28, para 24, U.N. Doc. A/9028 (1973).6 Stohl, 'International Dimension of State Terrorism' in Stohl & Lopez,

n. 2, at pp. 44-45.


It is true that 'state terrorism', 'state-sponsored terrorism' and 'individual terrorism' fulfill different functions and manifest themselves in different ways. Yet, they are tied with one another and hence should be studied together. Apart from the fact that inducing a state of fear is common to these types of terrorism, the fact that the first two types of terrorism are in the ultimately analysis committed by individuals or groups of individuals either on behalf of States or as organs of States require an understanding of individual or group terrorism. Moreover, many States maintain, that not only is State terrorism the worst type of terrorism but is also the predominant cause of individual terrorism.8 It is also said that State terrorism is responsible for many more deaths and injuries than is individual terrorism.

After approaching the concept of State-Sponsored terrorism with reference to the functions and actors and contrasting the same from state terrorism, attention should be paid to the concept of terrorism as such which because of being an emotive and politically loaded term defies any generally accepted definition. Although there are more than 109 definitions of terrorism,9 writers continue to disagree on the bounds of terrorism, acts to be included in the definition and the basic causes of terrorism.10

In this scenario the definition of terrorism given by the U.S. Department of State may be used as a starting point for the ensuing discussion. Terrorism is 'premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine state agents, usually, intended to influence an audience".11

This is "simply good' definition which requires a political motivation but

7 See Geneva Declaration on Terrorism (1987) signed by R. Boudabbous, F. Boyle, R. Charvin, R. Clark, R. Falk, H. Koechler, S. MacBride, W. Perdue and T. Sono cf Lambert, n. 1, at 14, 16.

8 This has been the view of developing countries in Terrosim Committee. See Report of the Ad Hoc Committee on Internaitonal Terrorism, UNGAOR, 28th Sess, Supp. 28, UNDOC. A/9028 (1973), paras 49, 54 & 62-63. See generally, Lambert n. 1, at 17.

9 Schmid, Political Terrorism : A Research Guide to Concept, Theories, Data Bases and Literature (1983) 119-152.

10 Bell, 'Trends in Terror : The Analysis of Political Violence', 29 World Politics, (1977), 447, 481.

11 U.S. Department of State, Patterns of Global Terrorism, 1988 (1989) V. quoted in Lambert, n. 1, at 18.


does not allow for a relative concept of terrorism. It includes state terror but does not require a 'target of terror' as Schmid's definition12 does.13

III GLOBAL CONSENSUS ON THE CRIMINALITY OF THE ACTS OF TERRORISM There appears to be general international consensus that all

acts, methods and practices of terrorism are criminal and unjustifiable and therefore are not to be tolerated regardless of the cause and the identity of their perpetrators. Although none of the General Assembly resolutions defines the concept of terrorism, their unequivocal condemnation of acts, methods and practices of terrorism and their stress on the imperative need to further strengthen international cooperation between States in order to take and adopt practical and effective measures to prevent, combat and eliminate all forms of terrorism that affect the international community as a whole is a breakthrough of sorts given the fact that following the failure of the Ad Hoc Committee on Terrorism to reach any sort of consensus regarding appropriate action to be taken against terrorism General Assembly felt constrained to defer the issue for a number of years. Change in the language in the most recent General Assembly resolutions indicates the nature and depth of increased universal consensus on the illegality of acts of terrorism and the desirability to eliminate and combat international terrorism. While the earlier General Assembly resolutions went through the usual formula of reaffirming the right to self-determination and national liberation, resolutions adopted since 1994 are conspicuous by the absence of such formula.14 This change in the attitude of States is partly because of the end of ideology in a unipolar world in which globalization has become a buzz word and partly because of the

12 Schmid's definitioin is as follows :"Terrorism is a method of combat in which randam or symbolic victims serve as instrumental targets of violence. These instrumental victims share group or class characteristics which form the basis for their selection for victimization. Through previous use of violence or the credible threat of violence other members of that group or class are put in a state of chronic fear of violence (terror). This group or class whose members' sense of security is purposively undermined, is the target of terror. The victimization of the target of violence is considered extra-normal by most observers from the witnessing audience on the basis of its atrocity; the time (e.g. peacetime) or place (not a battlefield) victimization or the disregard for rules of combat accepted in conventional warfare. The norm violation creates an attentive audience beyond the target of terror; 'sectors of this audience might in turn form the main object of manipulation. The purpose of this indirect method of combat is either to immobilize the target of terror in order to produce disorientation and/or compliance or to mobilize secondary targets of demands (e.g. a government) or favouring the short or long term interests of the users of this method of combat. Schmid, n. 9 at 111.

13 Lambert, n. 1, at 18-19.14 . Eg. General Assembly Resolution, on 'Measures to Eliminate

International Terrorism', 9 December, 1994, reproduced in 35 IJIL, (1995), 228.


increasing awareness of the dreaded nature of international terrorism in all its forms and manifestations with their adverse consequences for the constitutional order of States and human rights of innocent people on the one hand and international peace and security and friendly relations among States on the other.

IV - PROHIBITION OF STATE-SPONSORED TERRORISM IN INTERNATIONAL LAWState sponsorship of terrorism in the territory of another state is

specifically forbidden by the U.N. General Assembly's 'Declaration of Principles of International Law'15 and its Definition of Aggression.16

Alongside certain descriptions referring to aggression the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970 declares :

"Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another state.

Every state has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force".

Thus organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State are not only in violation of the principle of non use of force which is a principle of jus cogens but also involve the violation of the principle of non-intervention in matters within the national jurisdiction of states. To quote the 1970 Declaration again :

Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state interfere in civil strife in another State.

International law recognizes the right of every sovereign State to conduct its affairs without outside interference. The I.CJ. has observed in the Corfu Channel case, 'Between independent States, respect for territorial sovereignty is an essential foundation of international relations.

15 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, G-A. Res. 2625 (XXV) of 24 Oct. 1970 UNGAOR, 25th Sess. Supp. 28, p. 121, U.N. Doc A/8028(1971).

16 G.A. Res. 3314 (XXIX) of 14 December, 1974, UNGAOR, 29th Sess. Supp. 31, p. 142, U.N. Doc. A/9631 (1975). See also B.C. Nirmal, 'Aggression as Defined by the General Assembly', 19 Indian Yearbook of International Affairs, (1986), 323.


There is no general right of intervention in international law, much less on the request for assistance made by an opposition group in another state.17 The Court further observed : 'Indeed, it is difficult to see what would remain of the principle of non-intervention in international law, if intervention which is already allowable at the request of the government of a state, were also to be allowed at the request of the opposition". 18 In this context it is important to note that 'acts constituting a breach of the customary principle of non-intervention will also if they directly or indirectly involve the use of force, constitute a breach of the principle of non use of force in international relations."19

The principles established by the General Assembly in the Friendly Relations Declaration of 1970, proclaiming the duty of every state to refrain from organizing, instigating, assisting or participating in terrorist acts in another state or acquiescing in organized activities within its territory directed towards the commission of such acts, have also been reiterated by the Security Council in its resolution 1189 (1998) of 13 August, 1998. In view of resolution 1373 (2001) which was adopted in the wake of the tragic attacks of September 11, 2001, that occurred in the United States20, it is the duty of States to prevent and suppress the financing of terrorist acts, criminalize the wilful provisions or collection, by any means of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts and to freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit terrorist acts or participate in or facilitate the commission of terrorist acts Not only States should prohibit

17 I.C.J. Rep. 1949, p. 35.18 The Nicaragua case, I.C.J. 1986, para 246.19 The Nicaragua case, I.C.J. 1986, para 209.20 EU Conclusions Adopted by the Council (Justice and Home) Sep. 20,

200 40 I.L.M. (2001), 1257; EU - Ministerial Statement on Combating Terrorism Id. 1263; European : Conclusions Plan of Action of the Extraordinary Council Meeting on 21 Sept. 2001 Id. 1264; NATO : Statement by the North Atlantic Council Id. 1267; NATO : Statement by NATO Secretary Generd Lord Robertson Id. 1268; OSA : Declaration of Solidarity from the House of America Id. 1269; OAS : Resolution on Strengthening Hemisphere Cooperation to Prevent, Combat and Eliminate Terrorism id. 1270; Statement by the Hon'ble Donald J. Johnston - SG of the OECD on Fighting International Terrorism id. 1275; UN. GA. 56/1 (Condemnation of terrorist Attacks in the USA), Id 1276; UNSC Resolution 1368 (2001), 1277; UNSC. Res. 1373 (on Threats to International Peace and Security Caused by Terrorist Acts, id. 278.; U.S. Public Law 107-40 (Joint Resolution to Authorize the use of US Armed Forces against these Responsible for the Recent Attacks Lannched Against the United States, id. 1282; U.S. Executive order 13224 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, Support Terrorism 1283; ICAO Declaration on Misuse of Civil Aircraft as Weapons of Destruction and other Terrorist Acts Involving Civilian Aviation. ILM (2002), UN SC Res. 1377 of Nov. 12, 2001; ILM (2002), 503.


their nationals or persons or entities in their territories from making funds, financial assets, economic resources available to persons who commit or attempt to commit, facilitate or participate in the commission of terrorist acts, they should also refrain from providing any form of support to entities or persons involved in terrorist acts, they should suppress recruitment of members of terrorist groups and eliminat the supply of weapons to terrorist; take the necessary steps to prevent the commission of terrorist acts and prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other states or their citizens.

Although the basic thrust of the said Security Council resolution is on financing of terrorism, it nevertheless goes beyond that and requires States to deny safe haven to those who finance, plan, support, or commit terrorist acts or provide safe havens and calls upon them to intensify and accelerate the exchange of operational information regarding terrorist actions and movements, forged or falsified travel documents, traffic in arms, explosives or sensitive materials, use of communications technologies by terrorist groups; and the threat posed by the possession of weapons of mass destruction by terrorist groups. All States should exchange information and cooperation to prevent and suppress terrorist acts and to take action against the perpetrators of terrorist acts. They should become parties to, and fully implement as soon as possible, the relevant international conventions and protocols relating to terrorism. Further, all States are required to ensure that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts by refusing request for the extradition of alleged terrorist. Moreover, before granting refugee status, all States should take appropriate measures to ensure that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts.

Turning to the impermissibility of State-sponsored terrorism under the 'Definition of Aggression', Article 3(g) provides : 'The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein'. Under its terms mere organizing, encouraging and preparing armed bands is by itself not an act of aggression so long as they have not crossed the frontiers of another State and that too when the qualifications mentioned in this provision have been clearly fulfilled. For an activity of this type to constitute an act of aggression, it is necessary that armed bands or groups or irregulars or mercenaries carry out acts of armed force against another State of such gravity as to amount to an actual armed attack conducted by regular forces.21 Article 3(g) may be taken to reflect customary international law. In consequence under customary law an armed attack includes not merely action by regular armed forces across an international border but additionally the

21 The Nicaragua case, I.C.J. Rep. 1986, para 195.


sending by or on behalf of a State of armed bands or groups to the territory of another State which carry out acts on such a scale and effects as to amount to an actual armed attack conducted by regular forces. As the International Court in the Nicaragua case observed, the notion of armed attack includs acts by armed bands of the said gravity but does not extend to assistance to rebels in the form of the provisions of weapons or logistical or other support.22 Such assistance, however, could constitute a threat or use of force, or amount to intervention in the internal or external affairs of the State.23

V. EXISTING ANTI- TERRORISM CONVENTIONS AND PROTOCOLSAlthough there is no comprehensive international convention on

terrorism, some notable progress has been achieved in codifying international rules regarding the prevention and punishment of terrorism. Conventions and protocols have been adopted with respect to a number of international offences favoured by terrorist groups viz hijacking of civil aircraft, sabotage of civil aircraft and navigation facilities, attacks in international airports, attacks on diplomats, attacks on maritime targets and on platform on the continental shelf, taking of hostages physical protection from nuclear material, marketing of Plastic explosives, terrorist bombing, and financing of terrorists.24 These instruments reflect what Gal- Or has aptly called the 'object oriented' or 'segmented approach' and 22 Id.23 Id.24 The 1963 Tokyo Convention on Offences and Certain Others Acts

Committed on Board Aircraft, 2 ILM (1963), 1042, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 10 ILM, (1971), 133; the 1971 Montreal Convention for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, 10 ILM; (1971), 1151; the 1973 New York Convention on the Prevention and Punishment of Crimes Against - Internationally Protected Persons, including Diplomatic Agents, 13 ILM, (1974), 41; the 1979 International Convention Against the Taking of Hostages, 18 ILM., (1979), 1456, the 1988 Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and Protocol thereto for the Supression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, the terrorist Bombing Convention, 1998; International Convention for the Suppression of the Financing of Terrorism, 1999, International Convention for the Suppression of Acts of Nuclear Terrorism 2005. See generally, V.S. Mani, ‘Future Strategies in the War against Terrorism and proliferation of weapons or Mass Destruction : An Indian Perception’, IJIL 44 (2004), 221-259, See generally, Shubber, 'The International Convention Against the Taking of Hostages', 52 BYIL (1981), 205; Wood, 'The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, ICLQ, 23 (1974), 791; Shubber, 'Aircraft Hijacking under the Hague Convention 1970- A New Regime', ICLQ, 22 (1973), 706; Verway, 'The International Hostages Convention and National Liberation Movements', 75 AJIL (1981), 69; Halberstam, 'Terrorism on the High Seas : The Achille Lauro, Piracy and the IMO Convention on Maritimee Safety', 82 AJIL, (1988), 269.


are concerned only with offences which have an international dimension.25 While these instruments are not identical, obligations imposed by all of them are remarkably similar. These instruments cover matters like the establishment of jurisdiction, notification of the results of prosecution, aut dedere aut judicare, facilitation of the extradition option, mutual assistance in criminal matters, cooperation to prevent acts of terrorism. Moreover, all the instruments require States parties to make the listed offences punishable under their domestic laws, and rely solely on the municipal law of each State for the prevention and punishment of the target crimes.

As can be readily seen from the above discussion, there is no dearth of international instruments to prevent and punish the prohibited acts of terrorism. Of course, the existence of anti terrorist instruments and actually taking steps to implement and enforce them are two different matters. There is little doubt that some of the obligations that these instruments establish are soft and leave many vital matters to the discretion of the individual State, while other provisions are amenable to differing interpretations.26 But it is not so much the flaws from which these instruments suffer but rather a continuing reluctance on the part of some of the States to recognize that acts of international terrorism are unacceptable and should be neither tolerated nor supported which is responsible for the worldwide prevalence of international terrorism.

A small number of states not only encourage terrorist activities in other State but even engage themselves in such activity as an instrument of their foreign policy.27 The attitude of the so called crusaders against terrorism is not different. Terrorism does not recognize any boundary or religion nor does it value human life. When India repeatedly pointed out this fact to the United States, they did not take it seriously. The World knows that America thought of waging war against terrorism only when its interests were deeply hurt by the tragic events of 11 September, 2001. But when the terrorists attacked the Indian Parliament on 14 December they gave only sympathy to India and nothing else, and advised restraint to India. When the WTC came tumbling down and the Pentagon was reduced to a smoking wreck, Washington did not talk to the Talibans or Osma Bin Laden but rather launched a well orchestrated military operation against the latter. But the U.S. has been asking India to talk to Pakistan for all the bloody mess the latter has created in this country for more than a decade. Washington's attempts to club India and Pakistan in the same pack is ridiculous and undermines the credibility of the so called international coalition against terrorism. American war on terrorism with the help of Pakistan which is responsible for state-sponsored terrorism in India clearly shows that when it comes to fighting terrorism in other parts of the globe, countries like United States are more

25 Gal Or International Cooperation To Suppress Terrorism (1985), 87.26 Lambert, n. 1, at 56.27 See Lambert, n.1, at 45.


guided by their own interests than by considerations of right and wrong. When this double standard will go?

Another important reason for increase in the acts of international terrorism is the lack of enforcement machinery to secure the compliance of the provisions of the anti-terrorism instruments by Sates Parties. In the absence of a mechanism for sanctions these conventions are less sturdy than they could otherwise be.

All of the above mentioned conventions are designed to regulate the conduct of individuals, but they are also applicable to those acting on behalf of a State as they are to persons acting in a private capacity. True, State terrorism is not covered by these conventions but it is regulated by the rules of international humanitarian law and human right law. The ad hoc U.N. Tribunals for the former Yugoslavia and Rwanda28, the Lockerbie case29, the attempt by a Spanish Court to prosecute former Chilean dictator Augusto Pinochet30, and the establishment of the International Criminal Court31 are evidence of the fact that international law is slowly building a system for dealing with state terrorism.32

VI. STATE RESPONSIBILITY FOR SPONSORING OF TERRORISM IN ANOTHER COUNTRYWe have seen that State sponsorship of terrorism in the territory

of another State involves a serious breach of international obligations of imperative nature, in particular those relating to non use of force and non-intervention which are well entrenched in both customary and conventional international law. It is not only contrary to the letter and spirit of the UN Charter but is also against a legally binding decision of a competent international organisation such as the Security Council. The delinquent State may therefore be held responsible for this type of internationally wrongful act provided the act in question is imputable to it. On a general level, a State will be responsible for the use of unlawful force by its military forces against a neighboring State. It will also be liable if it fails to prevent autonomous armed groups from using its territory as a base for unlawful attacks.33 It is a well established rule of

28 S.C. Res. 808 (1993) and S.C. Res. 955(1994). For the text of Statutes see 32 ILM. (1993), 1593-1613, and 33 ILM (1994), 1600-1613.

29 I.C.J. Reports, 1992, p. 3.30 Pinochet (Ex parte) R.V. Bowstel Metropolitan Stipendary Magistrate

(1999)2 All.E.R. 97.31 For the text of the Rome Statute of the International Criminal Court,

See 37 ILM. (1998), 1002-1069.32 See generally, P.S. Rao, 'International Terrorism, Self-Determination

and National Liberation', Souvenir & Conference Papers, Vol. III, International Conference on International Law in the New Millennium (4-7 Oct. 2001), organized by the Indian Society of International Law, New Delhi. 813-832.834.

33 See Article 3(a) of the ILC Draft Articles on State Responsibility. The Janes Claim (U.S. V. Mexico) (1926) UR IAA 82, The Corfu Channel Case 1949 ICJ Rep. 40 Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri


international law that a State may be held responsible for unlawful acts or omissions directly committed by the State and directly affecting other States e.g. the breach of a treaty, the violation of the territory of another state, or damages to sate property. Thus in the Nicaragua case34 the laying of mines in Nicaragua's internal or territorial waters and certain attacks on Nicaraguan ports, oil installations and on naval base by its agents were found imputable to the United States.

A State may also be held responsible for the activities of all its organs, such as the army, police, judiciary, departments35 of State and security forces. An example of state responsibility for the activities of the States own agents is the Rainbow Warrior36 case. In the instant case the UN. Secretary-General was asked to mediate between France and New Zealand. His ruling in 1986 provided inter alia for French payment to New Zealand and for the transfer of two French agents to a French base in the Pacific, where they were to stay for three years and not to leave without the mutual consent of both States. Subsequently, both the agents were repatriated to France before the expiry of the three years without the consent of New Zealand. New Zealand invoked the arbitration clause of the 1986 Agreement and put forward arguments based on the breach of a treaty obligation by France. France countered that argument by contending that only the law of 'state responsibility' was relevant and further that concept of force majeur and distress exonerated it from liability. Rejecting the French argument the Arbitral Tribunal decided that the law relating to treaties was relevant and ruled that any violation by a State of any obligation of whatever origin gives rise to state responsibility.

We have seen above that a State is responsible for the unlawful activities of its organs provided such acts are attributable to it. Activities of these organs are still attributable to the State even if they are beyond the legal capacity of the officials involved.37 Article 8 of the ILC Draft Articles provides that the conduct of a person or a group of persons shall be considered as an act of the State in the following circumstances. First, the most obvious case is where it is established that such person or group was in fact acting on behalf of that State. The Zaifroo claim38 is an example of this situation. The second situation is where such person or group was in fact exercising elements of the governmental authority in the absence of the official authorities and in circumstances which justified the exercise of those elements of authority. This is exemplified by A.G. of

Lanka, 30 ILM, (1991), 577.34 ICJ Rep. 1986 14.35 Art. 5 of the ILC Draft Articles. See also Paraguay v. U.S.A.

(Provisional Measures) 37 ILM, (1998), 810; Rainbow Warrior Arbitration, 26 ILM (1987) 1346.

36 26 ILM (1987), 1346.37 The State will still be responsible, if the organ was acting on behalf of

the State at the time. Article 10 of the Draft Articles, See also Youmans Claim (U.S. V. Mexico), RIAA 4 (1926), 110.

38 Great Britain V.U.S. ) RIAA, 6 (1925), 160.


Israel v. Eichmann39, where it was not clear whether abductors of Eichman were actually Israeli agents or private citizens de facto acting on Israel's behalf. The acts of private individuals may also be attributed to the state in the situation exemplified by the Iran case40, wherein the initial attack on the U.S. Embassy by militants could not be imputable to Iran because they were clearly not agents or organs of the State but 'the subsequent approval of the Ayatollah Khomeini and other organs of Iran to the attack and the division to maintain the occupation of the Embassy translated that action into a State act'.

A State may be responsible in its own rights (primary responsibility) for failing to prevent individuals or armed groups using its territory to commit wrongful acts against foreigners within its territory or as a base for attacks against another State. But before a State can be held responsible for military aid reaching the armed opposition in another State the imputability of such aid to the authorities of the former state must be proved by sufficient credible evidence. As the International Court of Justice observed in the Corfu Channel case 'it can not be concluded from the mere fact of the control exercised by a state over its territory and waters that state necessarily knew, or ought to have known, of any unlawful act perpetrated therein, not yet that it necessarily knew, or should have known, the authors. This fact by itself and apart from other circumstances, neither involves prima facie responsibility nor shift the burden of proof'.41 Therefore, if the flow of arms is in fact reaching the affected State despite the best efforts of its own, and allies, and the state accused of sending arms has acted with due diligence to prevent the flow of arms, the latter can not be held responsible.42

A different situation arises where a State supports the activities in another State of a terrorist or militant group determined to undermine the territorial integrity of the latter State or overthrow the existing government of the latter State. In the Nicaragua case, the ICJ considered the relevant principles for determining the responsibility of the former State in such situations and laid down the 'control and dependency' test for this purpose. According to this test 'merely' financing, organizing, training, supplying and equipping the rebel group is not enough to establish the responsibility of the doer State. For this conduct to give rise to legal responsibility of the doer State, 'it would in principle have to be proved that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed'.43

Obviously, this is a high burden of proof. One may wonder whether this test is not too strict, especially when it leaves the victim State without any effective, peaceful, international remedy. Be that as it may, the

39 ILR 36 (1961), 5.40 Yeager V. Iran (1987).41 Corfu Channel case, I.C.J. Reports 1949, p. 18.42 Id. para 157.43 Id. para 115.


control and dependency' test was also applied by the majority of the Yugoslav War Crimes Tribunal in the Tadic case.44 Although in the instant case there were very close links between Yugoslavia and Bosnian Serbia, the Tribunal declined to attribute the actions of the Bosnian Serb forces in Bosnia to the Federal Republic of Yugoslavia (Serbia and Montengro) because of the absence of effective control of the latter on the former. In his dissenting opinion, the President of the Tribunal said that 'control and dependency was just one test of attributability and put forward the additional test of 'delegation'.

A serious breach of the prohibition of aggression is not just an international delict but a most serious wrongful act of interest to the international community as a whole and hence can be termed as an international crime. International crime under ILC. Articles on State Responsibility, is a 'breach by State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by the community as a whole'.45 Although the current Special Rapporteur has suggested a re-working of draft Article 19 and the abandonment of the alleged distinction between civil and criminal responsibility on the ground that the terminology of 'crimes' of states is potentially misleading, many commentators accept that a distinction should be drawn between the most serious wrongful acts of interest to the international community as a whole, and simple delicts.46 As certain forms of terrorist activities by or on behalf of a State may constitute an armed attack (aggression), the rules of State responsibility which eventually emerge in the context of international crimes or serious wrongful acts should have an important bearing on the development of international norms relating to state-sponsored terrorism.

VII - POSSIBILITY OF THE U.N. ENFORCEMENT ACTION States are generally under an obligation not to sponsor terrorist

activity or assist it in any way, Breach of this obligation may in certain situations make the sponsorer state responsible in international law. In addition to this, enforcement action can be taken by the Security Council against States engaging or possibly supporting such activities. In this context it is pertinent to note that in resolution 731 (1992), the Security Council referred to 'acts of international terrorism that constitutes threats to international peace and security'. This resolution was adopted in the context of criticism of Libya for not complying with requests for extradition of suspected bombers of an airplane. In another resolution, the Council determined that 'the failure by the Libyan government to demonstrate by concrete actions its renunciation of terrorism and in particular its continued failure to respond fully and effectively to the requests in 44 36 ILM, (1997), 908.45 Article 19 of the Draft ILC Articles on State Responsibility..46 See Martin Dixon, Text Book on International Law (First Indian

Reprint 2001), 235.


resolutions 731 (1992), constitutes a threat to international peace and security'. Again, Security Council resolution 1070 (1996) adopted with regard to Sudan re-affirmed that 'the suppression of acts of international terrorism', including those in which States are involved is essential for the maintenance of international peace and security. This resolution was adopted in the context of the failure of Sudan to comply with earlier resolutions demanding the extradition of suspects on its territory wanted in connection with an assassination attempt against the President of Egypt. Recognition of relationship between terrorism and international peace and security in both cases constitutes an important step in combating international terrorism in as much as it paves the way for imposition of binding sanctions upon states engaging or possibly supporting terrorist activities. Mention should also be made of two Security Council resolutions (Resolution 1267 of 15 Oct 1999 and Resolution 1333 of 19 December 2000) calling on the Taliban to hand over Osama Bin Laden and imposing sanction on Taliban. In Resolution 1368 (2001) of 12 September 2001 the Security Council called upon the international community to re-double their efforts to prevent and suppress terrorist attacks and to bring to justice the perpetrators, organizers and supporters of terrorist attacks of 11 September 2001. Interestingly this resolution does not contain specific mention of Taliban or Osama Bin Laden as responsible for that tragic attack. The same formula was also followed in the S.C. Resolution 1373 (2001) which while condemning the 11 September terrorist attacks and reaffirming that 'such acts, like any act of international terrorism, constitute a threat to international peace and security'. as well as to the 'inherent right of individual or collective self-defence' makes no specific mention of either the Taliban or Osma Bin Laden.

VIII. LEGALITY OF THE USE OF FORCE AGAINST STATE SPONSORED TERRORISM

In a perceptive article, 'Terrorism and the Law'. Soafer argues that attempts to rescue hostages and actions against countries that sponsor terrorism's would not be seen as objectionable because the principle of territorial sovereignty is not the only controlling rule in this regard.47 In the view of another commentator 'unless the international community acquires suitable instruments, capable of preventing and repressing such criminal events, resorting to unilateral armed force is likely to continue to increase on the part of those States whose nationals become the victims of terrorist attacks, in order to fil the vacuum created by the lack of effective control mechanism'.48 Many writers and states, however, dispute the legality of such actions by invoking Article 2(4) read

47 Soafer, 'Terrorism and the Law', Foreign Affairs (1986), 901, 919, cf Lambert, n 1, at 323, f.n. 59

48 Rohzitti, Rescuing Nationals Abroad through Military Coercion and Intervention on Grounds of Humanity (1985). 66-67 Cf Lambert, n 1, at 325


with Article 5149 of the United Nations Charter. Since the anti-terrorism conventions neither prohibit nor sanctions, the use of force by a State to rescue hostages or to combat state sponsored terrorism, the legality or otherwise of such actions is to be found in customary and conventional law relating to the use of force. While the restrictive interpretation of the relevant legal principles of the U.N. Charter permits a use of force only for self-defence under Article 5149, the permissive school sees a total ban on the use of force as an emasculation of a State's ability to protect itself against the illegal conduct of other States and asserts a wider right of self defence. According to supporters of this view the pre-Charter law permitted the use of force for certain non-aggressive purposes and since the Charter did not alter the direction of international law, the customary right of self-defence still survives. Under the permissive approach the use of force in the following four circumstances is justified under the customary right of self-defence : (i) in response to an armed attack directed against state territory (ii) in anticipation of an armed attack of threat to the State's security, (c) in response to an attack (threatened or actual) against territory, nationals, property and rights guaranteed under international law, and (iv) where the attack does not itself involve measures of armed force, such as economic aggression and propaganda.50 This approach assumes that if the flexible conditions of the Caroline case51 are satisfied, the use of force in the exercise of the customary right of self-defence is permissible. In fact, there are many cases where the use of force against the terrorism sponsoring states has been sought to be justified on the ground of the customary right of the self defence by the State resorting to force and its supporters. The U.S. bombing of Libya in 198652, and the U.S. attack on Baghdad in 1993 in response to an alleged terrorist threat against ex President Bush were justified by the United States as acts of self-defence. Israel also justified the Entebbe incident as an act of self-defence.53

49 The view supporting a permissive interpretation of Article 2(4) of the U.N. Charter and a wider right of self-defence has been endorsed by Bowett, Self-defence in International Law (1958). On the contrary Brownlie supports a restrictive approach in this regard. See Brownile, International Law and the Use of Force by States (1963)

50 . Martin Dixon, A Text Book of International Law (2001), 300 51 The Caroline case, in Moore, Digest of International Law, Vol. II, (1906), 409. 52 . The U.S. justified its action on the basis of self-defence consistent

with Article 51 of the U.N. Charter. The legality of the U.S. action however, seems to be doubtful. See Murphy, 'The Future of Multilateralism and Efforts to Combat International Terrorism', 25 Colum J. Trans. L.(1986), 86-88; Greenwood Air Operation Against Libya' 'International Law and the United States', 89 West Virginia L.R., (1987), 933, 937-48

53 . Israel justified its action on the basis of self-defence and stated that its actions were in the 'the limits of the Caroline case, i.e, necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation. The U.S. representative concurred and stated :There is a well established right to use limited force for the protection of one's own nationals from an imminent threat of injury or death in a situation where


By way of contrast, under the restrictive approach to the use of force it is argued that the right of self-defence now available is to be found in Article 51 with the result that a State may resort to self-defence 'if an armed attack occurs' but not otherwise. While this view may sound utopian considering that there is no international police and no reliable machinery for the vindication of rights allegedly denied, the problem with the permissive view is that it places the distinction between lawful and unlawful force on the subjective intention or aim of the acting State and thus gives wider freedom of action to the powerful States.54 Besides, the permissive interpretation of the law of self defence is at odd with the principle expounded by the International Court of Justice in the Nicaragua case. Although the Court in the instant case recognized that customary law continued to exist alongside treaty law in the field of the right of self-defence and said that there was not an exact overlap and the rules did not have the same content, the majority favoured the restrictive view of the customary right of self-defence only when armed attack occurs but not otherwise.

According to the ratio of the Nicaragua judgment while terrorist activities of the description contained in Article 3(g) of the Definition of Aggression constitute an armed attack against which the right to individual as well as collective self defence is available, less grave from of terrorist activity may justify the use of proportional counter measures by the victim state alone. In fact, as the Court said in the instant case 'States do not have a right of 'collective' armed response to acts which do not constitute an "armed attack".55 Also pertinent for the purpose of the present discussion is the following observation of the Court56 :

'While the concept of an armed attack includes the dispatch by one state of armed bands into the territory of another state, supply of arms and other support to such bands cannot be equated with armed attack. Nevertheless, such activities may constitute a breach of the principle of the non use of force and an intervention in the internal affairs of a State, that is, a form of conduct which is certainly wrongful, but is of lesser gravity than an armed attack'.

Use of force whether made under Article 51 of the U.N. Charter or under customary right to self-defence is subject to the requirements of necessity and proportionality. This view has been taken by the International Court of Justice in the Nicaragua case and in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. In the

the State in whose territory they are located is either unwilling or unable to protect them. The right, flowing from the right of self-defence, is limited to such use of force as is necessary and appropriate to protect threatened materials from injury'. The U.S. also justified its failed operation to rescue its nationals held as hostage in Iran on various theories including self-defence.

54 . Dixon, n. 50, at pp. 298-299.55 . ICJ Rep, para 211.56 . ICJ Rep. 1986, para 247.


latter case it was emphasised that '(t) he submission of the exercise of the right of self defence to the conditions of necessity and proportionality is a rule of customary international law'.57

In view of the above discussion it is clear that in certain situations forcible measures may be adopted by way of a response to terrorist activities. In the words of a commentator 'a major terrorist incident mounted or supported by one State against another will justify measure under the rubric of self defence, provided that the necessary requirements as to, for examples, proportionality are observed".58 In his view, 'a series of smaller-scale incidents may have the same effect, but it is unlikely that isolated, relatively minor terrorist activities would justify the use of force by the target state against the state supporting the activity in question'.59

Turning to the question whether the alleged right of hot pursuit can be used to justify armed incursions into the territory of neighboring states for the purpose of destroying the military basis of terrorist groups or Jehadis who have launched, or will launch, attacks against the State, it may be noted that in the Southern African context, the Security Council on many occasions condemned the practice of hot-pursuit and the States resorting to it could not find any support for their claim,60 They were seen as an aggression or contrary to Article 2(4) of the U.N. Charter. It is, therefore doubtful whether a right of hot-pursuit across land has any basis in International law.61 But it is permissible for the victim State to take defensive measures on its own territory in the event of an armed attack by guerrillas.

IX. ARMED ASSISTANCE TO NATIONAL LIBERATION MOVEMENTS It is sometimes argued by the terrorism sponsoring States that

militants groups to whom they are giving armed support are not terrorist outfits but national liberation movements engaged in a struggle for self determination. In this context following points may be noted. First, the scope for the application of the right to external self-determination is extremely limited in the post-colonial and the post cold war era.62

Secondly, the Friendly Relations Declaration (Art. 5) and the Definition of Aggression (Art.7) have dealt with the issue in a deliberately ambiguous fashion, stating only that peoples under colonial occupation, foreign domination or racist regime have the right to achieve self -determination and to receive unspecified assistance. Thirdly, there is no evidence that a

57 . ICJ Reports 1996, para 41; 35 ILM., (1996), 809, 822.58 M.N. Shaw, International Law (1997), 806.59 Ibid.60 See B.C. Nirmal, The Right to Self-Determination in International

Law (1999), Ch. IX.61 Martin Dixon, n. 36. at 312.62 . See B.C. Nirmal, n. 60, Ch. X


customary practice has developed permitting armed assistance to national liberation movements. Fourthly, it is true that a great majority of Asian African states supported the right of self-determination of the colonized people in the era of decolonization, but it is extremely doubtful whether they still hold the view when the decolonization process is over. Fifthly, use of force to suppress the right to self-determination is unacceptable in terms of a series of U.N. General Assembly resolutions adopted in 1970's. Sixthly, a national liberation movement covered by Article 1(4) of 1977. Additional protocol I is required to respect and observe the rules of international humanitarian law and to this end to make a declaration under Article 96(1) of Protocol I. Seventhly national liberation movements not within the purview of Article 1(4) of Protocol I would be covered by Protocol II. As the material field of Protocol II has been raised to a level of intensity of armed conflict which is virtually commensurate with a classical civil war in situations falling short of a civil war State's action is permissible against rebel groups subject to the provisions of the domestic law and the requirements of international human rights law.63 And, finally the Security Council resolution 1264 of Dec. 1999 which, authorised States to use 'all necessary measures' to protect the rights of the East Timoreans suggests that use of force in support of a self-determination movement is permissible only after authorisation by a competent international organisation as a collective action.

X. CONCLUDING OBSERVATIONSIt is evident from the foregoing discussion that state

sponsorship of terrorism in the territory of another state is specifically forbidden by the General Assembly Declaration of Principles of International Law and its resolution on Aggression. It is not only contrary to the purpose and principles of the U.N. Charter but in certain cases may constitute serious threats to international peace and security. Where acts of international terrorism constitute a threat to international peace and security the Security Council can act under Chapter VII of the U.N. Charter and impose binding sanctions upon sates engaging or possibly supporting such activities. In certain situations the use of force against terrorism-sponsoring State will also be justified in the context of self-defence. Where a country has been a victim of a small scale terrorist incidents, the target State will be within its legitimate right of self-defence to use forcible measures against the State supporting the activities in question. The victim State may also adopt counter- measures against the state sponsoring terrorism if the activities in question do not constitute an armed attack but involve a violation of the principle of non use of force and the principle of non-intervention. The position of the right of hot-pursuit across land borders in international law appears to be uncertain

63 . B.C. Nirmal, 'Wars of National Liberation and International Humanitarian Law' 28 IJIL (1988), 201 at 215.


but a State can take defensive measures on its own territory in the event of an attack of Jehadis, militants or terrorist groups.

Under the rules of State responsibility a State might be held responsible for failing to prevent the armed group using its territory as a base for terrorist attacks against another state. As already indicated, a state may also be held responsible for extending support to their activities provided the requirements of the 'control and dependency test' are met in a given situation.

Existing anti-terrorism conventions, despite flaws, provide a framework for the legal regulation of individual and group terrorism, their provisions are also applicable to those who conduct terrorist activities on behalf of a State. As the 'object-oriented' or 'enumerative approach' which is the hallmark of the existing anti-terrorism instruments is not the most expedient way of dealing with terrorism on a universal basis, substantial progress achieved by the international community in the drafting of a comprehensive convention on terrorism should be seen as a positive development in the global war against terrorism.

It is also clear from the above discussion that law is on the side of India in its current initiatives against state sponsored terrorism. It has every right to defend its territory, people, values and freedom from terrorist attacks sponsored by Pakistan and can even use force against the latter under the rubric of self-defence subject to the fulfillment of the requirements of the Caroline formula. But the availability of the right to self-defence against state sponsored terrorism does not necessarily mean that the target State must exercise it without weighing the pros and cons of such action. Although it is for the political establishments in this country to choose the appropriate option among available options, there are at least three important factors which might restrain it from pursuing a militaristic approach against its adversary in the current crisis - (i) lack of political will and self-confidence, (ii) fear of nuclear war in the Indian Sub-Continent and (iii) doubts about the effectiveness of the military approach to the problem of terrorism. It is perhaps for these reasons that the government has decided to give diplomacy more chance and this strategy has also begun to make some impact. Terrorism is a multidimensional problem and as such requires multipronged strategies. It is essential therefore that while pursuing other possible strategies India also identifies and addresses the root causes of terrorism and strengthens its internal security system.

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ENVIRONMENAL JUSTICE : RYLANDS TO MEHTA€¦ · Web viewThe 1963 Tokyo Convention on Offences and Certain Others Acts Committed on Board Aircraft, 2 ILM (1963), 1042, the 1970 Hague