Essay: Terrorism and the law

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  • Terrorism and the law
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While trying to state the objectives of terrorism, it is import to separate the old time terrorism from the newest generation terrorism. Terrorist groups with secular ideology and non-religious affiliations must not be put alongside with religiously oriented and millenarian groups even though the ‘newest’ terrorism group have religious inclination which makes them similar to the religiously oriented and millenarian terrorist groups. Two most common factors that influence terrorists’ objectives are the strong ideology of the forming of the terror group and their overt motivation. According to the meaning of terrorism given by Dr. James M. Smith, the Ex-Director of U.S. Air Force Institute for National Security that “terrorism is a physical attack intended to produce a psychological effect”, and corroborated by Gorski that “terrorism intends to cause a chronic state of psychological vulnerability and instability in the targeted population”, it can be seen that terrorism is staged to weaken or kill the will of masses and control there mindset in rebellion against the incumbent government coupled with rendering such government incapable of performing its fundamental duty of protecting the lives and property of its citizens. This will happen when the government formulate policies in reaction to the terrorist attacks, for example, all airports and seaports in U.S. got the responsive attention of the government after the September 11, 2001 attack which provoked some unions such as the American Civil Liberties Union to lamenting that the blatant discrimination and state-sanctioned bigotry to outright physical brutality which allegedly targeted the people of Arab-descent living in United States.

Addressing the objectives of the ‘older’ terrorism from 1960s to 1980s, it was a worldwide revolution and transformation where the battle was between capitalism (USA) and Communism (Union of Soviet Socialist Republic) and between Israel and Yasser Arafat’s Palestinian Liberation organization that used terrorism as a form of weapon to fight against its target government-enemy with no history of toppling a government to get power. They are known to kill people and not use themselves to kill themselves and others. While the ‘newest’ terrorism groups of the present day that features the likes of al-Qaeda, Jemaah Islamiyah, Boko Haram, and the Islamic State of Iraq and the Levant (ISIL) have a very different set of objectives. For example, what the Islamists-terrorists want is to kill unbelievers and thrash all that symbolizes Christianity and Western civilization. Al-Qaeda’s objective is to avenge the wrongs committed by Christians and Jews against Muslims over the ages, to re-shape the Muslim world, replacing secular states with a single Islamic political leadership and to drive Americans and other non-Muslims from Saudi Arabia, the home of Islam’s holiest sites. Boko Haram stated their objectives clearly that they want Nigeria to become an Islamic state. These groups see killing of unbelievers as a calling, and they are completely desperate to pierce terror into the society they target in total dishonor for human lives. The non-religious terrorists’ objectives will frequently endeavor extremely discriminatory demonstrations of violence to accomplish a particular political point. This regularly helps them to keep losses of lives and property while stilling achieving their objective. As ascribed to a terrorist leader, “A terrorist is like a bee and the government is like a man; when the bee keeps stinging his target on the various parts of his body, the man will attempt to slap the bee from every direction until he loses control of himself.” Authorized methods investigation and prosecution of terrorism offences

The main role of doing an investigation is to examine all evidence in a manner which is reasonable or just for the accused and which must also be admissible in a court of law. In the case of Fowler v. Padget (1798) 101 ER 1103 (1798), it was stated that “It is a principle of natural justice, and of our law, that actusfacit reum nisi mens sit rea. The intent and the Act must both concur to constitute the crime.” This is the most crucial element which must be known by the investigator while collecting the evidence. His evidence must strongly reveal the individuality of the accused as a prime suspect of a terrorism act. This evidence must show the intent behind the committal of the act which constitutes the mens rea of the accused. The evidence must not fail to give a right location where and time when the act of terrorism was committed. All the movements of the suspects before and after the act must be included in the evidence. The modus operandi employed by the accused must be featured in the evidence which explains the way the act was planned. All this evidence can be collected through testimony, documentary, physical, digital, exculpatory, scientific, and genetic. While collecting information through digital means, such as using of bugs, wiretaps, the authority involved must have legal justification for this means, the reasonable grounds to do so and must as well consider the right to privacy of the accused.

Investigation needs to be carried out with a warrant issued by the court when there is a need for search so as to gather evidence admissible in court. It can sometimes be carried out without warrant if it is a matter of urgency so that the evidence may be gotten without delay. The highest ranking police officer or depending on the State of concern may apply for warrant from the court or for example in U.K., an officer with the rank of assistant chief constable or above can also give permission for searches in an area in order to prevent acts of terrorism.

When there is a reasonable ground to believe that a person would commit a terrorism offence or is about to commit such offence, authorities can make an arrest of such person whether he has committed the act or he is about to. Warrant may be applied for before the arrest is made but in a situation where the terrorist may escape, then such arrest can be carried out without warrant.

Terrorism is an international crime, and, in that capacity, it needs the international community to act to prevent terrorism and the sanction of people executing demonstrations of terrorism. With an international war on terrorism apparently being endorsed by the United Nations (UN), it is the ideal time for the crime of terrorism to turn into a piece of the widespread obligation of countries, with that obligation further assigned to an international institutions, for example, the International Criminal Court, for prosecution and approval.

Under the Article 7 ICC Statute, the ways in which terrorism can be prosecuted is stated clearly. Terrorism can be prosecuted as sub-category of “crimes against humanity”; and the other way of prosecution is as an inhumane act.

1. When terrorism is prosecuted as a sub-category of crimes against humanity, Article 7(1)(a) ICC is invoked in which the major element is murder. The terrorist must have killed or caused the death of person(s). Meaning that it does not have to be aimed at one person, and according to Article 7, it can be systematic involving a lot of targets who are civilian population. Civilian means a non-military target with no armed hostilities. The 9/11 attack is appropriate for this type of prosecution since the acts were multiple and coordinated, causing the death of thousands of people who were performing official duties, in furtherance of Al Qaeda’s terrorist policy against the United States. Suicide bombing attacks could be viewed as forming part of a widespread and systematic attack which falls under crimes against humanity. In addition, according to Article 7(1)(e) ICC, hostage-taking which is a form of deprivation of physical liberty with widespread and systematic attack directed against person(s) is under crime against humanity, an example is the Dubrovka Theatre hostage taking in October 2002, together with the Beslan school attack in September 2004, perpetrated in furtherance of the Chechenian battle for independence.

According to Article 7(1)(f) and (k), terrorism can be prosecuted under torture if it inflicts a grave injury to the mental health of the person. This article is based was based on the Torture Convention of 1984 which omits the requirement of a connection to a public official.

Also, as its stated in Article 7(1)(h):

“Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.”

Following Article 7(2)(g), which states that:

“Persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity,” which the person is a party to.

It requires oppressive intent in view of political, racial, national, ethnic, cultural, religious, gender, also, different grounds universally perceived as impermissible under international law. However, there must be a connection between the persecutory act and any crime or those crimes stated in Article 7(1) which must be within the jurisdiction of the court.

2. When terrorism is prosecuted as inhuman act, Article 7(1)(k) ICC is invoked in which the terrorist must have inflicted grave injury to body or to mental or physical health via inhumane act with intent in which the act was of a character similar to any other act referred to in article 7(1).

2.3. Historical Development of International Humanitarian Law

The development of IHL had been influenced by religious concepts and philosophical ideas. Customary rules of warfare are part of the first rules of international law altogether. In this process, the development from the first rules of customary law to the first written humanitarian principles for the conduct of war was also accompanied by setbacks. Some rules which imposed restrictions on the conduct of war, the means of warfare and their application can even be traced back to ancient times. The Sumerians considered art of war as a state run by the law, which was taking place with a pronouncement of war and was finished by a peace treaty. War was subject to specific rules which inter alia, guaranteed immunity to enemy negotiators.

Hammurabi, king of Babylon, wrote the “Code of Hammurabi” for the protection of the week against oppression by the strong and ordered that hostages be released on payment of a ransom.

Furthermore, the law of Hittites also provided for a declaration of war and for peace to be concluded by treaty as well as for respect for the inhabitants of an enemy city which has capitulated. The war between Egypt and Hittites for instance was thus terminated by a peace treaty.

In the 7th Century B.C., Cyrus I, king of Persians, ordered the wounded Chaldeans to be treated like his own wounded soldiers.

To buttress the understanding of this development, the Indian epic Mahabharata and the Laws of Manu already contain provisions which prohibit the killing of an adversary who is no longer capable of fighting and surrenders, forbid the use of certain means of combat, such as poisoned or burning arrows, and provide for the protection of enemy property and prisoners of war.

The Greeks, in the wars between the Greek city-States which considered each other as having equal rights, but also in war led by Alexander the Great against the Persians, respected life and personal dignity of war victims as a prime principle. They did not touch the Holy places, consulate offices, ministers of God, and ambassadors of the conflicting side and swap over POWs. For instance, the poisoning of sources of water was illegal in conflict.

The Romans also accorded to their prisoners of war the right to life. However, the Greeks and Romans distinguished between those peoples whom they regarded as their cultural equals and people whom they considered to be barbarians.

Islam also acknowledge essential requirements of humanity. In his Orders to his commanders, the first caliph, “Abu Bakr” stipulated, for instance, the following:

“The blood of women, children, and old people shall not stain your victory. Do not destroy a palm-tree, nor burn houses and cornfields with fire, and do not cut any fruitful tree. You must not slay any flock or herds, save for your substance.”

In many cases, Islamic warfare was not less cruel than warfare by Christians. Under the reign of leaders like “Sultan Saladin” in the 12th Century, the laws of war were observed in an exemplary manner. Saladin ordered the wounded of both sides to be treated outside Jerusalem and allowed the members of the Order of St. John to discharge their hospital duties.

In the middle Ages, feud and war were governed by strict principles. The principle of protecting women, children and the aged from hostilities originated from church father Augustine.

The putting into practice of respect for holy spaces shaped a right of refuge, for example, the right of refuge, in churches, the compliance of which was judiciously supervised by religious body. The knights battled against one another as indicated by certain (unprinted) rules. The standards of arms were differently upheld by mediators of tribunals of knights. They were connected just to knights, however not to common individuals. The adversary was much of the time viewed as an equivalent combatant who was to be crushed in a respectable battle. It was regarded to be taboo to begin a war without earlier warning

The ‘Bushi-Do’, the medieval code of honour of the warrior caste of Japan, included the rule that humanity must be exercised even in battle and towards prisoners of war (POW).

In the 17th Century, the military tactician Sorai wrote that whoever kills a POW shall be guilty of manslaughter no matter whether such a prisoner had surrendered or fought ‘to the last arrow.’

As a decrease in consequence of the knighthood, the innovation of guns or more all, the forming of armed forces comprising of soldiers of armed force, the ethics of war got toughened again towards the in the middle ages era. Contemplations of valor were obscure to these armed forces.

Just as modern days began, there was no refinement or difference among combatant and regular civilian populace. Hired soldiers viewed war as exchange which they took after with the end goal of private interest. Towards the start of modern era, the wars of religion, and especially the Thirty Years War, again involved the cruelest strategies for fighting. The brutalities of this war basically added to the way that law considered the jus in bello and set up various directives which were to be complied with by the aggressive.

In the work of Hugo Grotius (the father of modern international law), “De jure belli ac pacis” which got published in 1625, highlighted existing limits to the behavior of opponents during war. A basic change in the character of states to the conduct of war did not come until the beginning of the age of information in the eighteenth Century.

In 1772, Jean-Jacques Rousseau made the following statement in his work, “Le contrat social”:

“war is a relation, not between man and man, but between State and State, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers; not as members of their country, but as its defenders … the object of the war being the destruction of the hostile State, the other side has a right to kill its defenders, while they are bearing arms; but as soon as they lay them down and surrender, they become once more merely men, whose life no one has any right to take.”

From this dogma, which was soon and mostly recognized, took after that the demonstrations of hostility vibe may just be coordinated against the enemy’s military, yet not against the regular civilian populace which does not participate in these conflicts. These concepts also found manifestation in some international treaties established at that time. For instance, the treaty of friendship and commerce concluded between Prussia and the United States in 1785, whose most important authors are deemed to be King Frederic the Great and Benjamin Franklin, contained some exemplary and trendsetting provisions for the treatment of POW.

In the nineteenth Century, after a couple of provisional misfortunes, helpful and humanitarian point of view kept on making progress. They prompted exceptional activities of individual persons and to the decision of various international treaties. These treaties forced confinements on the method for fighting and the strategies for their utilization.

Florence Nightingale, an English woman, calmed the sufferings of the sick and wounded through her efforts as a nurse in the Crimean War. Later, she made essential contributions towards the renovation of the civil and military nursing systems of her homeland.

In 1861, Francis Lieber, a German-American Professor of political science and jurisprudence at Columbia University; prepared on behalf of President Lincoln, a manual based on international law (Lieber Code), which came into force in 1863 for the Union Army of the United States in the Civil War.

The Genovese merchant, Henri Dunant, who in the Italian War of Unification, had seen the plight of 40, 000 Austrian, French and Italian soldiers injured on the war front of Solferino, in printed his impression in his book, “A memory of Solferino” which he brilliantly illustrated the terrors of the conflict as follows:

When the sun came up on the twenty-fifth June 1859; it disclosed the most dreadful sights imaginable. Bodies of men and horses covered the battlefield; corpses were strewn over roads, ditches, ravines, thickets and fields… The poor wounded men that were being picked up all day long were ghastly pale and exhausted. Some who had been the most badly hurt had a stupefied look as though they could not grasp what was said to them… Others were anxious and excited by nervous strain and shaken by spasmodic trembling. Some who had gaping wounds already beginning to show infection, were almost crazed with suffering. They begged to put out of their misery and writhed with faces distorted in the grip of death struggle.

In his book, Dunant not only described the battle, but tried to suggest and publicize possible measures to improve the fate of war victims. He presented three basic proposals designed to mitigate the suffering of the victims of war. To this end, he proposed the following:

1. That voluntary societies be established in every country which, in time of peace, would prepare them to serve auxiliaries to the military medical services.

2. That States adopt an international treaty guaranteeing legal protection to military hospitals and medical personnel.

3. That an international sign of identification and protection of medical personnel and medical facilities be adopted.

These three proposals were simple, but they have had deep and lasting consequences;

1. The whole system of National Red Cross or Red Crescent Societies (of which there are today 188 around the world stems from the first proposal;

2. The second proposal gave birth to the “First Geneva Convention”

3. The third proposal led to the adoption of the protective emblem of the Red Cross or the Red Crescent.

Dunant’s book enjoyed enormous success throughout Europe. Although it did not present entirely original ideas, the merit of the book is in large part due to the timeliness of its message. At that time, a private welfare association existed in Geneva, ‘the Society for the Public Good.’ Its President, Gustave Moynier, was impressed by Dunant’s book and proposed to the members of the society that they try to carry out Dunant’s proposals. This suggestions were accepted and five members of the Society, Mssrs, Dunant, Moynier, Dufour, Appia and Maunoir, created a special committee in 1863, the ‘International Standing Committee for Aid to Wounded Soldiers.’ This committee later became the International Committee of the Red Cross (ICRC).

In 1863, the Committee convened military and medical experts at a conference in Geneva. The aim of that meeting was to examine the practicability and feasibility of the proposals made by Dunant. The results of the meeting were encouraging, and the members of the committee persuaded the Swiss Federal Council to convene a diplomatic conference, whose task would be to give a legal form to Dunant’s proposals.

To this end, a diplomatic conference was held in 1864 in Geneva and 16 States represented finally adopted the ‘Geneva Convention of 22nd August 1864 for the Amelioration of the Condition of the Wounded in Armies in the Field.’ Its results was an international treaty open to universal ratification (i.e an agreement not limited to a specific region or conflict, with binding effects on the States that would formally accept it) in which States agreed to voluntarily limit their own power in favour of the individual.

For the first time, armed conflict became regulated by written, general law. This original convention has been replaced by more modern and comprehensive treaties. However, it illustrates in a concise manner the central objectives of humanitarian law treaties.

The constant enlargement of the categories of war victims protected by humanitarian law (military wounded, sick and shipwrecked, POW, civilians in occupied territories; the entire civilian population), as well as the expansion of the situations in which victims are protected (international and non-international armed conflicts); regular updating and modernization of the treaties to account for the realities of recent conflicts. For example, the rules protecting the wounded adopted in 1864 were revised in 1906, 1929, 1949, and 1977 respectively.

Two separate legal currents have up until 1977 contributed to this evolution and they are:

1. The Geneva Law, mainly concerned with the protection of the victims of armed conflicts i.e. the non-combatants and those who no longer take part in the hostilities and;

2. The Hague Law, whose provisions relate to limitations and prohibitions of specific means and methods of warfare.

These two legal currents were practically merged with the adoption of the two Additional Protocols of 1977. The Convention currently in force have replaced the older Geneva Conventions.

In 1980, another important Convention was adopted under the UN auspices, the ‘Convention on prohibition or restrictions on the use of conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects.’ This instruments limits or prohibits the use of mines booby traps, incendiary weapons, and non-detectable fragments.

In 1993, a comprehensive Convention prohibiting the development, production, stockpiling, and the use of chemical weapons was adopted. This treaty supplements the basic prohibition contained in the 1925 Geneva Protocol.

In 1995, a new Protocol, an appendage to the 1980Convention was adopted. This new instrument prohibited the use of laser weapons designed to cause permanent blindness.

In 1997, a Convention prohibiting the use, stockpiling, production and transfer of antipersonnel mines was signed in Ottawa.

In 1998, the Statute of the International Criminal Court (ICC) was adopted in Rome. This accomplishment was the culmination of years of effort and showed the resolve of the international community to ensure that those who commit grave crimes do not go unpunished. The ICC has jurisdiction over serious international crimes (Genocide, Crimes against Humanity, War Crimes and Aggression) regardless of where they are committed.

In 1999, a new Protocol to the 1954 Convention on cultural property was adopted. Protocol II enables the States party to that convention to supplement and reinforce the protection system established in 1954. It clarifies the concepts of safeguarding and respect for cultural property; it lays down new precautions in attacks and against the effects of attacks; and institutes a system of enhanced protection for property of the greatest importance for humanity.

In 200, an optional protocol to the 1989 Convention on the rights of child was adopted. This protocol raises the minimal age for compulsory recruitment from 15 to 18 and calls on States to raise the minimum age for voluntary recruitment above 15. It provides that armed groups should not use children under 18 in any circumstances and calls on States to criminalize such parties.

In 2003, the international community adopted a treaty to help reduce the human suffering caused by explosive remnants of war and bring rapid assistance to affected communities. Explosives remnants of war are unexploded weapons such as artillery shells, mortars, grenades, bombs, and rockets left behind after an armed conflict.

In 2005, a diplomatic conference held in Geneva adopted a Third Additional Protocol to the Geneva Conventions, creating an additional emblem alongside the Red Cross and Red Crescent and the additional emblem known as the ‘red crystal’ should provide a comprehensive and lasting solution to the emblem question; also, it will appear as a red frame in the shape of a square on a diagonal on a white background, and is free from any religious, political or other connotations.

In 2008, government negotiated and adopted the Convention on Cluster Munitions. This important international humanitarian law treaty prohibits the use, production, stockpiling and transfer of cluster munitions and requires States to take specific action to ensure that these weapons claim no future victims.

Conclusively, it is worth nothing the support lent by the international community to the Treaties of IHL. Since 194 States are parties to these texts, the four Geneva Conventions are now among the most universal instruments of international law. Additionally, 172 States are parties to the First Protocol and 166 States are parties to the Second Protocol regulating the coordination and cooperation between the members of the international community.

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