1.3 The other problem in defining ‘terrorism’ is the criteria of illegitimacy or unlawfulness of use of violence to distinguish between actions authorized by a legitimate government and those of other groups and individuals.
Such distinction is aimed at excluding acts of violence targeting non-combatants in communal / caste riots, wars, pogroms against ethnic groups sanctioned or supported or connived at by State. Such distinction excludes from its scope ‘State Terrorism’. One dark chapter from History will vividly illustrate the point; viz. Hitler’s pogroms against hapless Jews and ‘Holocaust ‘ would not amount to Terrorism as such violence against them was sanctioned by Nazi Government and Nazis came to power by constitutional means. Hitler had always kept himself on the right side of law. Therefore, there is legitimate suggestion that use of violence even by and at the instance of state should come within the ambit of ‘Terrorism’. The Human Right activists insist that laws of civilized countries must adhere to basic norms of human right jurisprudence. It is only then ‘rogue’ states can be made accountable for its actions based on “lawless laws.”
1.4 The acts of Terror are perpetuated for a political goal. This is also one of the criteria to identify ‘terrorism’. Terrorism is a political tactic. History bears witness to the fact that Terrorism is not of recent origin. It has been resorted and perfected our countries. It is believed that terrorism is related to 1793 reign of Terror during the French Revolution. 19th century revolutionaries used techniques of assassination particularly Anarchists and Narodniks in Tsarist Russia, whose most notable action was assassination of Alexander II. In 1867 Irish Republican Brotherhood- a revolutionary Nationalist Group with support from Irish Americans, carried out attacks in England. These were the attacks of “republican terrorism” which became a recurrent feature of British history. They were the precursor of IRISH Republican Army. Then during World War II vast arrays of guerrilla partisans and resistance movements were organized and supplied by the Allies. The British Special Operations Executive (SOE) conducted operations in every theatre of the war and provided an invaluable contribution to allied victory. The British Special Operations Executive (SOE), it is believed, invented modern terrorism, pioneering most of the tactics, techniques, and technologies that are mainstay of modern terrorism. Coming to recent times, most of the modern day terrorists labeled as Islamists / Jehadis have been trained by United States and its allies to fight against Soviet Russia during its occupation of Afghanistan. Then, there again is a case of Ku Klux Klan known as ‘KKK’, 19th century movement revived in 1915 to resurrect white supremacy. However such political labeling has no permanence. For instance in 1946 Menachem Begin leader of Irgun, a group described as terrorist group by British Mandatory authority of Palestine blew up King David Hotel which was being used as temporary military HQ, killing 91 people mainly Arabs and British soldiers. In 1977 Begin got Nobel Peace Prize. There are many other leaders of Irgun like Yatzik Shamir, Ariel Sharon who rose-to the position of pre-eminence in the State of Israel. Those who wage war against terrorism have no qualms of conscience to deal with these Irgunist terrorists. Again the instance of Deir Yaseen which occurred immediately after the partition of Palestine where the terrorist groups of Jews Irgun and Haganah mercilessly wiped out the whole Arab village of Deir Yaseen resulting into huge problem of Palestinian refugees. The problem remains unresolved till date and the perpetrators of the crime of terrorism (operation Deir Yaseen was conceived and put into action by Ben Gurion and Menachem Begin Nobel Peace Prize laureate are enjoying the fruits of the ill gotten gains. Then there are examples of Nelson Mandela and Yasser Arafat who were at one time condemned as terrorist- Mandella being the head of ANC (African National Congress) which was designated as an terrorist organization by United State government in 1988 and Yasser Arafat founder of Al-Fatah whose notorious act was to massacre 11 Israeli athletes at the 1972 Munich Olympics. Mandela was awarded Nobel Peace Prize in 1993 and Arafat was awarded Peace Prize in 1994. Thus we can see that political ideology for which a person or group is stigmatized as terrorist has no permanence and as per changing exigencies of time, one time terrorist becomes Nobel Peace Prize winner or respected statesman.
1.5 The other key criterion to identify terrorism is to create psychological impact and fear. Terrorists attack National symbols to show their power and to shake the foundation of the country or society they are opposed to. This may affect government’s legitimacy and create awe and fear of a given terrorist organization and seeking subjugation of people to ideology behind a terrorist attack. However, the past incidents have shown that terrorism as military tactics to create fear psychosis has its own limitations. On the one hand the knowledge that terrorism will be used in a conflict has deterrent effect if the enemy knows that not only combatant forces but non-combatants and civilians are equally at risk. It acts as disincentive to start a war. The threat of nuclear war from the 50’s to 80’s was a controlled exercise in terror. On the other hand it can serve to steel an enemy’s resolve that is certainly what the German bombing of London did and German terror campaigns in conquered countries like the Ukraine turned them from potential allies into enemies. In India also we have seen remarkable resilience of our citizens to react positively to acts of terror which are aimed at destabilizing the country from within and disrupt social harmony existing amongst different religious and ethnic groups.
Response to Terrorism:
2.1 Having examined key criteria of terrorism, one has to consider correct response to terrorism. The United States which undoubtedly in terms of military superiority, super power of the world is leading campaign against ‘War on Terror’. It is busy listing support of all the countries round the globe in its fight against ‘War on Terror’. It is submitted that United States has carefully chosen the lexicon of ‘War on Terror’ which is mistaken metaphor. It is interesting to refer to the statement of the project for the New American century prepared by Neo-Conservative think tank in 1997 comprising 25 individuals, all of whom, since then, have actively been a part of the U.S. administration- prominent and well-known personalities being Dick-Cheney-Vice-President, Donald Rumsfield- the former Defence Secretary, Francis Fukuyama an idelogue-Zalmay Khalizad – Paul Walfowitz. The ideology / principle propounded by the team of neo-conservatives which pre-dates the tragedy of September 11 is that International relations are relations of power; not law; power prevails and law legitimizes what prevails. The United States is unquestionably the dominant power in the post-cold war world; it is therefore in a position to impose its views, interests and values on the world. The doctrine, not only, advocates, unabashedly, the theory of Supremacy of America in military terms, but also its value system, and interests and therefore surmises that the new world order must be as conceived and dictated by America.
2.2 September 11, incident undoubtedly was a horrendous event and the sight of two passenger planes crashing into twin towers (viewed incessantly on TV screens) not only in United States but through out the globe struck fear in the heart of every human being. The opportunists in the Bush Administration saw in this tragedy a chance to translate their ideologies / policies into practice and the Bush Administration cynically responded to this tragedy by playing havoc first in Afghanistan and then in Iraq, to impose American Supremacy.
2.3 The Bush Administration carefully selected its lexicon and described its response to the crime against humanity, committed by handful of misguided individuals who happened to be Muslims, as “War on Terror”. A war, by definition, is waged against a known and an identifiable enemy. But in spite of the admission that a terrorist has “no face, no religion, no nation” the ideologues of the Bush Administration saw no contradiction as it wanted to create a fear psychosis in the minds of the populace and seek their uncritical support for defence expenses and committing U.S. military divisions for ‘war’ in distant countries. Above all, the Bush Administration wanted to mute the voice of its critics in the name of Patriotism. By defining its response to the dastardly attack on the WTC as a War on terror, the Bush Administration manipulated the terrorist event of 9/11 to further the policies enunciated by neo cons in 1997 and to establish American hegemony through out the world.
2.4 Treating the attacks of September 11 as crimes against humanity would have been appropriate as by definition, a War is directed against known/ identifiable enemies and against a nation state, while terrorists are unidentifiable and are non-state actors. Crimes require police work, not military action. Protection against terrorism, necessitates precautionary measures, awareness and intelligence gathering, all of which ultimately depend on the support of the population among which the terrorists operate”. So says – George Soros – (The Bubble of American Supremacy). However, defining the response as a ‘War on Terror’ made it highly convenient for the Bush administration to select countries having large deposits of oil, natural gas and other natural wealth and accuse them of nurturing terrorists or weapons of mass destruction and bomb their territory to the Stone Age.
2.5 In the process, innocent civilians were subjected to the ravages of carpet and smart bombing and other inhuman consequences, often nonchalantly, described by the perpetrators of the ‘War on terror’ as ‘collateral damage’. History shows, that innocent victims of a war have a tendency to rise and take revenge, thereby starting a cycle of terrorism. The ‘War on Terror’ too has created a vicious cycle of violence directed at innocent victims and instead of solving the problem, it has only compounded the same.
2.6 By using the slogan ‘war on terror’ the Bush administration has not only doctored mass consciousness based on a fear psychosis but has also given credence to another movement which was afoot even prior to September 11. The objective of this movement was to identify phantoms of enemies of the “free world” after the collapse of the Soviet Union. It may be recalled that to serve the purpose a perfidious theory of The Clash of Civilization’ was written by Prof Samuel Huntington and soon it acquired currency. The theory identified the Muslim world in the post cold war period to be the main antagonistic opponent of the free world. Islam and the Muslim world thus became legitimate target of the war. Professor John Esposito wrote an effective rejoinder to the theory of clash of civilization in his book “The Islamic Threat: Myth or Reality?” Professor Esposito demonstrated, by historical references, that there have been longer periods of co-operation, understanding and dialogue between the countries following Islamic rule and Christian rule and that the tensions between the Islamic (East) and the Christian (West) have been few and far between. Nonetheless, the Bush administration conveniently lapped up the doctrine and the US President Mr. Bush lost no time in describing the military expedition in Afghanistan as a “Crusade” and subsequently debunking resistance to American Supremacy as Islamic Fascism. Thus the Bush administration and its western allies notably Britain (every military and political expedition launched by U.S. in this war on terror has British tail which keeps wagging) have created mass consciousness against Islam and the Muslim World in the East.
2.7 If one analyzes the causes of terrorism it is realized that such activities are not inspired by any religion. When a group of people perceives, rightly or wrongly, that it is subjected to injustice and persecution for which it cannot have any lawful or legitimate redress, then such groups of people take up arms to fight against their oppressors. Such movements are basically political in nature, but to justify their movement they seek the cover of an ideology. They select an ideology which they consider to be expedient to give legitimacy to their movement and also conducive for mobilizing people to their movement. In other words, every terrorist activity has at its base political consideration (may be legitimate or illegitimate). Religion is not the base for such movement. It is therefore totally false to equate terrorism with any religion.
PROTECTION OF HUMAN RIGHTS
3.1 It can thus be inferred that the solution to the problem of terrorism is not force and more force but that the remedy lies in identifying socio, economic and political causes of terrorism in a scientific manner and addressing the same sincerely. Undoubtedly security measures have also to be taken simultaneously to protect the life of innocents. But, the public and political discourse is to shun discussion on socio, economic and political causes of terrorism and rely merely on security measures which in turn trample upon basic human rights and democratic values on which freedom rests.
Those basic freedoms are:-
Freedom of Speech, Respect for Human Dignity, Freedom of Religion, Justice for all, Tolerance and Rule of Law. By creating fear psychosis and using an erroneous metaphor of ‘War on Terror’ many western democratic States have arrogated to themselves powers to trample upon basic human rights. In this paper it is not possible to submit an overview of such draconian laws passed by several states but the prime casualty is the principle of fair trial. A fair trial is indispensable for protection of other human rights such as the right to freedom from torture, the right to life and the right to freedom of expression. The basic human values underlying these rights should never be compromised. Therefore all measures to counter terrorism must be in strict conformity with the constitutional norms of the Nation State, International Law including International Treaties and Covenants. The Nation States who have enacted such draconian laws have forgotten their obligations to protect human rights and fundamental freedoms.
3.2 In India we have the history of legislations to prevent terrorist and disruptive activities since 1984/1985. The same may be listed as under:-
a) The Terrorist and Disruptive Activities(Prevention) Act, 1987 ;
b) Maharashtra Control of Organized Crimes Act (1999);
c) Prevention of Terrorism Act 2002
Out of the three Acts, TADA – has been repealed but under the saving clause of the repealing Act pending prosecutions for offences registered prior to the repeal are continued. Similarly, POTA 2002 has been repealed but under the saving clause prosecution for offences registered prior to its repeal are continued. The third act namely MCOCA is still in operation in Maharashtra.
The common features of the above three enactments may be delineated as follows:-
(i) All the three acts provide for forfeiture of property of the person accused under the Act;
(ii) Custodial confessions obtained from persons accused of commission of an offence are made admissible;
(iii) Conditions for granting of bail are stringent and in practice results in accused remaining under detention as under trial prisoners. There are impossible conditions for obtaining bail;
(iv) Under all the three Acts, there are presumptions of guilt against the accused until he proves his innocence.
The summary of the above noted provisions clearly show that a person facing accusations under the above noted Acts losses his right to a fair trial. The International conventions against torture are flagrantly violated and the basic norms of human rights jurisprudence of presumption of innocence of a person until proven guilty is undermined.
3.3 The constitutional validity of TADA was challenged in number of Writ Petitions which was disposed off by the Supreme Court by a common judgment reported in (1994) 3 SCC 569 (Kartar Singh V/s. State of Punjab). Diverse issues were raised in the case about the constitutional validity of TADA. The Supreme Court upheld S.15 of TADA which made the custodial confessions admissible in evidence. Similarly, S.20(8) & S.20(9) of TADA which laid down stringent conditions for release on bail were also upheld. After the judgment of the Supreme Court in Maneka Gandhi’s case it was felt that any enactment which is arbitrary offends Article 14 of the Constitution. Surprisingly the Supreme Court, threw to the winds the dictum laid down in Maneka Gandhi’s case and upheld TADA which was ex facie arbitrary. The Supreme Court ignored the history of times and large scale complaints of abuse of the law and rooted for validity of the enactment. There were dissents expressed by other judges of the Supreme Court but they were in minority. Consequently, TADA is at odds to principles of fair trial and basic human rights; yet, it is considered by the Apex Court as reasonable adhering to constitutional values. The judgment also runs counter to principles laid down by the apex court itself that while interpreting the statutes, the court should conform to international treaty obligations that India has entered into unless such interpretation or International obligations are against statutory laws of the country. It is regressive judgment and deserves to be reconsidered by the Apex Court itself. The same judgment is followed by a smaller bench of the Supreme Court in the case of PUCL V/s. Union of India (2004 9…SCC- 580) where the court upheld the validity of POTA. In the case of PUCL the Supreme Court had an opportunity to review or reconsider its earlier decision in Kartar Singh’s case but the same was lost. It may be fairly mentioned that Supreme Court in Kartar Singh’s case has laid down guidelines to mitigate the effect of draconian laws like TADA. However it is to be regretfully noted that such guidelines lack vision and exposes severe limitations of the Court to indulge into “judicial law making”.
3.4 Another challenge that Indian Criminal Justice faces is to provide protection to witnesses in criminal prosecution. There is increasing tendency to intimidate witnesses and turn them hostile and there is legitimate demand made by social and human right activists to have provisions in law providing for protection of witnesses.
3.5 In this connection one has to bear in mind that remedies which are suggested should not prove more dangerous than the disease. In this connection a reference may be made to the judgment of the House of Lords (2002). InRe:- AlFawwaz where in extradition proceedings of certain persons in connection with conspiracy to murder certain persons abroad a magistrate in UK decided to admit evidence of two anonymous witnesses in support of the allegations of terrorism which was upheld by House of Lords. However in the United States the 6ht amendment to the constitution guarantees the right of every defendant in a criminal trial to be confronted with the witnesses against him. Therefore in US there is no scope to consider statements of anonymous witnesses.
Looking to the Indian scenario where investigative agencies have fallen far below professional standards and have been indicted by numerous objective and impartial commissions of inquiry as having caste and communal bias, frequently staging fake encounters and ridden with corruption, it is extremely dangerous to ape developments taking place in Europe and U.K. By advocating the acceptance of the principle of admitting statements of anonymous witnesses we will throw open our entire system of administration of criminal justice for cynical manipulation by investigative agencies which have yet to live up to professional standards.
United State Supreme Court in Korematsu Case, under the pressure and tensions of the World War II, had to consider constitutionality of exclusion order of people of Japanese origin. The impugned order included even Japanese American citizens within its purviews.
The United State Supreme Court upheld its validity. Commenting on KOREMATSU case, a judge from Californian Court said “ KOREMATSU case stands as a constant caution that in times of war or declared military necessity, our institutions should be vigilant in protecting constitutional guarantees. The Supreme Court of Israel presided by AHARONBARAK observed,
“…………security conditions are not magic words” and made governmental actions taken in the name of military necessity and national security accountable. Replying to the criticism of the judgment Justice Barak stated.
“……..Preserving rule of law and recognition of an individual’s liberty constitute an important component in his understanding of security. At the end of the day they strengthen its spirit and its strength allows it to overcome its difficulties.”
1. Bruce Hoffman in the book “Inside Terrorism” says:
“On one point, at least, everyone agrees: terrorism is a pejorative term. It is a word with intrinsically negative connotations that is generally applied to one’s enemies and opponents, or to those with whom one disagrees and would otherwise prefer to ignore. ‘What is called terrorism,’ Brain Jenkins has written, ‘ thus seems to depend on one’s point of view. Use of the term implies a moral judgment; and if one party can successfully attach the label terrorist to its opponent, then it has indirectly persuaded others to adopt its moral viewpoint.’ Hence the decision to call someone or label some organization ‘terrorist’ becomes almost unavoidably subjective, depending largely on whether one sympathizes with or opposes the person / group/ cause concerned. If one identifies with the victim of violence, for example, then the act is terrorism. If, however, one identifies with the perpetrator, the violent act is regarded in a more sympathetic, if not positive (or, at the worst, an ambivalent) light; and it is not terrorism.”