WAR ON TERROR. Shristhi Debuka 1

WAR ON TERROR Shristhi Debuka 1 There exists no universally accepted definition of terrorism in international law. It can be seen as a debate in international bodies. Therefore it can be said that terrorism is a word without any legal significance. Terrorism creates a serious threats to security and international peace, yet there does not exist a universal definition of terrorism adopted by international law. In the year 1937, the League of Nations Convention for the Prevention and Punishment of Terrorism was considered to be the first international attempt to codify the definition of terrorism. Therefore Article 1(2) of this convention defined terrorism as the criminal acts focused against the state or an intent to create terror in minds of general public. Nevertheless, this definition of terrorism does not exist and the particular convention is not a part of international law because it could not come into force due to the ratification processes. However, it can be stated that it is very difficult to make a single universal definition of terrorism under international law because the dilemma lies here, it is so to say that one man s terrorist is another man s freedom fighter, i.e. for one group it is considered as a criminal act but the same act can be considered as a political act or movement for freedom. For e.g. the residents of Kashmir are often described as terrorists by India, but they have been recognised as liberation fighters amongst people in Pakistan.2 Moreover in the year 1996, a definition for terrorism was tried by the UN General Assembly as criminal acts intended to provoke a state of terror in general public, a group of person or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them". 3 In-spite of these attempts the member states did not agree as to what, specifically, constitutes terrorism. Therefore absence of an exact definition is leading to international law moving towards counter terrorism. 1 3rd Year BBA LLB Student, Jindal Global Law School 2 Sinan Fanci, Definition of â Terrorismâ in International Law, The journal of Turkish weekly, Available at http://www.turkishweekly.net/article/103/definition-of-terrorism-in-international-law.html ( last 2/11/2016) 3 1 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 4

The anti- terrorism conventions are drafted under UN which are ratified by many states. Therefore as of now there are 12 international conventions relating to terrorism and related activities. 4 The attacks in US on 11 September 2001, is a matter of concern in the international law which shows that the concept of proper definition is required for organising a support against terrorism in an effective way. The attack on September 11, 2001 marked an onset of terrorism, and lead to war on terrorism by United States, as it started an international military campaign. This attack on the world trade centre were first considered to be the acts of war during Clinton administration, his cabinet also refused to recognize them as a terrorist attack per se, it was treated as a law enforcement matters dealt with in criminal court. However President George W. bush considered it to be an act of war, and not a criminal infraction, thus US began with war on terror.5the attack in USA had recognised global attention on the matter of terrorism. A number of states enacted a legislation against terrorism. This war on terror by US was initially started against al-qaeda but further included Iraq. The attack of 9/11 further lead to declaration of war against Afghanistan i.e. U.S. and British attacked on major Afghan cities.6 Therefore the attack of 9/11 was an act of crime as it attacked a particular building and was not an attack against the State of US, it was an act of a particular group of people and not the State of Afghanistan, and moreover US by bombing Afghanistan did not keep this into consideration that it was a sovereign state. Therefore US entered or declared the war in the state of Afghanistan in the time of peace hence lead to war on terror. IS 9/11 A WAR OR A CRIME- The main purpose of the war is to either control other nation- state or to protect one s own geographical area, but the US declared a war to stop an organization by using military force. The main motive of the US government was to kill all the member (terrorist) of the organization named 4 5 War on Terror, DiscoverTheNetworks.org, Available at http://www.discoverthenetworks.org/guedesc.asp?cat=91&type=issue (last visited nov 2, 2016) 6 Response to 9/11: The War on Terror, http://www.dummies.com/how-to/content/response-to-911-the-war-onterror.html (last visited nov 2, 2016) 2 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 4

al-qaeda, without even regarding to the international borders, therefore America entered into the war without any specific enemy. 7 However the terrorist were not the armed combatants as known by the international conventions which governs the conduct of the war, but they were enemy aliens as being the enemy these terrorist must be considered as criminals. 8 There the attack of 9/11 shall be considered as a crime and not an attack because the act was done by civilians and not any state. Therefore 9/11 being a crime against a state cannot lead to a war on terror. ILLEGAL AND UNPRIVILEGED COMBATANTS- US replied to Al Qaeda s attack on the world trade centre with armed forces, which raised the status of these terrorists from criminals to enemies. The major advantage gained by US in treating the members of al-qaeda and Taliban as enemy combatants was the right to kill by the help of their enemy status and not by treating them for their individual criminal acts. 9 However the international humanitarian law was developed on the understanding that people in armed conflict can be divided into two categories i.e. civilians or combatants. Combatants are the ones who have a license to wound or kill the enemy combatants so as to destroy enemy s military objectives. With regards to their status, these combatants are authorized to combat immunity, which clearly states that they will not be held liable if they take part in lawful acts of war and hostilities. This is also valid if there acts would constitute a crime during a peacetime. These combatants when captured, are entitled to prisoner of war status and are also entitled to benefits under the protection of 3 rd convention. 10 These lawful combatants are also protected under the Geneva Convention 7 Kenneth Mentor J.D, Crime or Act of War? - The Media, 9-11, and Iraq, November 2002, Available at http://critcrim.org/critpapers/911_iraq.htm (last visited nov 3, 2016) 8 Norman K. Swazo, Questioning the Bush Administration s Concept of a Global "War" on Terror, April, 2004, http://www.spectacle.org/0404/swazo.html (last visited nov 3, 2016) 9 Scott Re, TERRORISTS AS ENEMY COMBATANTS An Analysis of How the United States Applies the Law of Armed Conflict in the Global War on Terrorism, February 9, 2004, http://fas.org/man/eprint/re.pdf ( last visited nov 3, 2016) 10 René Värk, TheStatusandProtectionofUnlawfulCombatant, Available at http://www.juricainternational.eu/?=12632 (last visited nov 3, 2016) 3 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 4

Relative to the Treatment of Prisoners of War and are further entitled to certain privileges when captured. 11 Whereas in the case of unlawful combatants, they have no rights. The term unlawful combatants came into force during the armed conflict which occurred in Afghanistan. However these unlawful combatants are not entitled to protection under international humanitarian law, even though everybody has undeniable fundamental right for recognition before the law. The general principle of four Geneva Conventions (1949) states that everybody even in the enemy hands have some rights under international law. Yet these unlawful combatants does not fit into the persons in armed conflicts categorisation. 12 There exists no international treaties which provides with a definition for the terms such as unprivileged combatants or illegal combatants. The unlawful combatants can be seen as the combatants who does not follow the law of war or the civilians who take part in the war directly in the wars. For e.g. member of al- Qaeda who were not in arm force of Taliban were acting as a part of Taliban military force. Under article 4 (A) (2) of the Third Convention states that these illegal combatants are not entitled to prisoners of war status. Prior to Geneva Convention, the international law allowed the armies to deal harshly with illegal combatants, whereby even allowing to shoot after being captured. 13 CAN WAR ON TERROR BE USED AS SELF DEFENSE WHEN THERE IS NO THREAT OF WAR The legal guidelines which governed the use of force in international law is provided in United Nations Charter. Article 2(4) of the U.N. Charter states that all the states which are member are restricted from any usage of force which impends the political independence or sovereignty of any state. The Charter also gives three exception i.e. a state can use force 1) in case of self- defence, 2) in conformance by U.N. Security Council Resolution or 3) with the agreement of the host states leader. However is was stated by US that its use of force in Afghanistan fall under all the exception, 11 Supra, note 8 12 Supra, note 9 13 4 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 4

but it can be said that US actions was illegal under international law. The invasion made by US in Afghanistan in October 2001 was done to threaten the sovereignty and the political independence of the state of Afghanistan. Moreover US war with Taliban a decade later was a complete violation of the article 2(4). 14 Historic international law and the U.N Charter are the two important legal base for self -defence under international law. The situation between US and Afghanistan can be compared with the Nicaragua case which is considered to be the modern analysis of the concept of self-defence. In the year 1986, Nicaragua sued US, claiming that US was liable for the contras against Sandinista government in Nicaragua. It also claimed the contras were equipped, supplied funded and trained whereby leading attacks in Nicaragua. The International Court of Justice (ICJ) rejected Nicaragua s claim stating that to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. 15 Hence, neither did US exercise effective control over the contra- the rebels in Nicaragua nor were those rebels attributable to US. Therefore it can be stated here that even if Taliban allowed safe place to al Qaeda does not allow US to invade within the terrorist of Afghanistan. However the attack on the world trade centre cannot be qualified as an armed attack on behalf of the state of Afghanistan on the state of US thus US invasion in Afghanistan by declaring war on terror to kill Taliban for funding or supporting al- Qaeda cannot be considered as a legal defence. 16 IS WAR ON TERROR DECLARATION LEGAL US entered into a war with Afghanistan entirely depends on the definition of war in international law. UN Charter and the general prohibition on war in international law defined war as a demure war declared by a sovereign state. The war, according to Oppenheim, was "a contention between two or more States through their armed forces, for the purpose of overpowering each other and 14 RYAN T. WILLIAMS, DANGEROUS PRECEDENT:AMERICA S ILLEGAL WAR IN AFGHANISTAN, Available at https://www.law.upenn.edu/live/files/145-williams33upajintll5632011pdf (last visited nov 3, 2016) 15 16 5 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 4

imposing such conditions of peace as the victor pleases." However after the adoption of UN Charter in 1945, under article 2 (4) prohibited all force usage, in case of a war, except in case of self-defence or by the mandate by the Security Council. 17 Therefore the war on terror declared by US against the state of Afghanistan cannot be considered as legal because the armed forces of both the states were not involved, also there was no such reason by US to claim war for selfdefence. Moreover US declared a war against Afghanistan during the peace time, also the crime against US was done by a particular organization and not the state. Therefore US declaration of war on terror against Afghanistan cannot be considered as legal. Therefore war on terror cannot be consistent with international law, as the international law does not permit the use of military force when there is crime committed against the State, moreover the US declaration to other states stating that either you are with us or against us helped in creating war on terror even when the other State was no actively involved in the attack. This war on terror also leads to the capture of illegal combatants, who are not subject to any privileges under the international law, also the war is only allowed under the international law in certain circumstances, and this war on terror does not comply to the criteria under the international law whereby making this war on terror inconsistent with the international law. 17 Mary Ellen O'Connell, The Legal Case Against the Global War on Terror, 2004, Available at http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1683&context=law_faculty_scholarship (last visited nov 3, 2016) 6 P a g e Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 4