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April 17, 2013

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Bangladesh Tribunal (ICT), Genocide

Domestic War Crimes Tribunal in the International Context: Bangladesh

Written by: Iffat Rahman [1]

Here in Dacca we are mute and horrified witnesses to a reign of terror by the Pak Military. Evidence continues to mount that MLA authorities have a list of Awami League supporters whom they are systematic and shooting them down.[i]

The Second World War has significantly shaped the human rights field and it has led to many Conventions and international laws and furthered the establishment of the rule of law for war crimes and prosecuting war criminals. Furthermore, to prevent and punish future crimes against humanity, in the shadow of the Holocaust, on 9 December 1948, the United Nations passed the Convention on the Prevention and Punishment of Genocide, which came into effect in 1951. One year later, Pakistan signed the treaty on Convention on the Prevention and Punishment of Genocide on 11 December 1948 and ratified it on 12 October 1957. However, even the treaty did not prevent the Pakistani Army from committing one of the worst genocides in 1971 when Bangladesh was separated.  Justice was never served for the victims until recently when the government of Bangladesh established the International Crimes Tribunals (ICT) where they are prosecuting people who collaborated with the Pakistani Army in 1971.

Recently, the ICT in Bangladesh has created a division within country in half and it had been reported that more than 80 people were killed in clashes over the Tribunal’s verdict and chaos followed. Many Hindu houses were burned down. The international justice community has been quick to point out that the current party in power, Awami League, and the current leadership of Sheikh Hasina, Prime Minister of Bangladesh, is after revenge rather than justice. Modeled after the Nuremberg trials, the tribunal, which has commenced in 2010, repeatedly faced criticism from the international community about the fairness and the openness of the trials. So far, the ICT has indicted 11 people for collaborating with the Pakistani Army and most of them hold high positions within the two opposition parties, Jamaat-e-Islami and Bangladeshi Nationalist Party. Abul Kalam Azad, member of Jamaat-e-Islami, was sentenced to death in absentia and the ICT gained quite a bit of attention after Mr. Abdul Quader Molla, senior leader of Jamaat-e-Islami, whose previous sentence of life imprisonment was overturned and received death penalty after a popular protest. Delwar Hossain Sayeedi, leader of the Jaamaat-e-Islam, was sentenced to death.

Is it genocide?

Along with the genocide in Rwanda, the Holocaust in Germany, the Bangladeshi atrocity was one of the worst atrocities committed in the 2Oth century. However, unlike the other genocides, the Bangladeshi genocide is one of the least studied genocides in the modern day history.  Bangladesh suffered a violent birth and whether or not, the war between East Pakistan and West Pakistan was genocide has been debated among the scholars many times. The war created 10 million refugees. According to the Convention on the Prevention of and Punishment, genocide is:

Article 2

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  • (a)      Killing members of the group;
  • (b)      Causing serious bodily or mental harm to members of the group;
  • (c)      Deliberately inflicting on the group conditions of life calculated to      bring about its physical destruction in whole or in part;
  • (d)      Imposing measures intended to prevent births within the group;
  • (e)      Forcibly transferring children of the group to another group.[2]

 

The massacre that happened in Bangladesh clearly fits within the realm of the definition of genocide. At that time, press rarely called it genocide but it is without a doubt that the Pakistani Army targeted Hindus selectively. The Hindu Bengalis became the Jews of Germany for the Pakistani Army. They were hunted down, killed, and the Pakistani Army unleashed a massacre that took place on defenseless villagers, peasants, students, mothers, and children.  According to confessions by Pakistani army soldiers and officers, they were ordered to kill Hindus, Kafirs (non-Muslims) and to show no mercy. Bengalis were seen as an inferior race. Lastly, India spoke out against the genocide, condemning and calling it,  “savage and medieval butchery” and “preplanned carnage and systematic genocide.”[ii] Telegrams were sent from the American Embassy to Washington labeling the massacre as “selective genocide”.  Bengali Army officers within the Pakistani Army were disarmed and executed. The massacre happened under a control command system and it was well planned by the West Pakistani Army. According to, A. Dirk Moses,

Yahya Khan, the Pakistani President, was “pushing through its own ‘final solution’ of the East Bengal problem.” Officers he interviewed told him that they were “determined to cleanse East Pakistan once and for all of the threat of secession, even if it means killing off two million people and ruling the province as a colony for 30 years.” “Pogroms” were instituted against recalcitrant villages in “kill and burn” missions. Entire “villages [were] devastated by ‘punitive action’,” which authorities called a “cleansing process.” Hindus were targeted for “annihilation,” because they were thought to be a minority of unscrupulous merchants who dominated the economy and siphoned off wealth to India.[iii]

When a massacre happens at a level where millions of people were killed because of there is a difference in religion, ethnicity and race, then it is a clear case of genocide.

 

A Brief History

There were many events led up to the genocide in Bangladesh. It is impossible to separate Bangladesh’s history from the partition of India. The partition also separated Bengal province of British into East Bengal and later on to East Pakistan and the West Bengal.  In 1948, Bengali movement starts where 54% of the population in Pakistan spoke Bengali and minority of the population spoke Urdu in West Pakistan where population also spoke Punjabi, Baluchi, Pashtun and Sindhi. Before that year, in 1947, a resolution advocated for Urdu to be the sole language of Pakistan, which caused Bengalis to protest, and later transformed into a movement. In 1949, the All Pakistani Awami Muslim League was formed and later changed into All Pakistani Awami League. In 1955, Sheikh Mujibur Rahman, then elected General Secretary, was re-elected as the leader of the Party and name of the Party changed completely to Awami League. Pakistan became an Islamic Republic and Bengali became a state language along with Urdu. In 1956, Awami League leaders demanded for provincial autonomy in the drafted constitution of Pakistan. On 1958, General Ayb Khan exiles the president of Pakistan and assumes all power. Slowly, over the years, Sheikh Mujibur became the prominent person in East Bengal and called for independence of Bangladesh. The atrocity started with a military operation called, “Operation Searchlight” which aimed to crush the Bengali movement and due to West Pakistan’s view of Bengalis being racially inferior.[iv] Attack was mostly targeted towards Hindus in East Pakistan and the casualty was great. According to some sources, three million people have died, making Bangladeshi Genocide to be one of the biggest genocides in the 20th century. The Pakistani Army targeted students, intellectuals and raped women and more than 7,000 people have died in the first massacred by the Pakistani Army. According to President Yahya Khan, Pakistani troops have to “kill three million of them (Bengalis)” in order to destroy the movement. Many scholars believe that the Pakistani generals thought Bengali National Movement was initiated by the Bengali intellectuals and Hindus, which made them the primary target.[v]

It is without a doubt students were targeted because students called for provincial autonomy, progressive laws and not a division along the line of religion.  The students were seen as a threat as much as the Language Movement that was taking place but the students later became the most prominent force for the evolution of Bengali Nationalism in Bangladesh.[vi] Students at the Dhaka University were to raise the flag of an Independent Bangladesh.  Pakistani Army violently attacked the dormitories of Dhaka University where a substantial amount of non-Muslim resided at that time. It should be noted that the massacre that took place happened on 25th March took place on Dhaka University campus and the campus was shelled and remaining students were shot, killed and gender or age didn’t matter in the killing spree.  When the dorms were emptied out, killing spree moved to villages. Students were shot at sight, interrogated and tortured to death.[vii]

It is estimated that the Pakistani Army raped approximately 200,000 women and girls.[viii] Pakistani Army and their collaborators have made girls and women targets through direct rape and through gendercide where men were killed off leaving the women vulnerable.

After 9 months of guerilla tactics by the Bengalis, in the final weeks of the war, India heavily supported Bangladesh and on 16th December 1971 Pakistan surrendered to Bengali and Indian troops.[ix]

A domestic affair

Technically known as the International Criminal Tribunal, there is very little international commitment is made to the trial and there is no way of knowing how much international standards are being made applied. When Bangladesh ratified the ICC Rome Statute in 2010, it became the first country in South Asia to ratify the treaty. The Rome Statute was mainly ratified so the government of Bangladesh would be able to proceed with the trials.  The International Crimes Tribunal Act 1973 was established to proceed with the prosecuting people who have committed crimes against humanity, war crimes and other crimes under international law. Under the ICT Act, many people were being investigated along with Pakistani Army officers. The investigation brought in charges against 195 Pakistani Army officers; however, the Pakistani Army officers were given amnesty and returned back to Pakistan under a trilateral treaty between Bangladesh, Pakistan and India. No other government took the initiative to prosecute the people who have collaborated with Pakistani Army until now. [x] When India brought the case against Pakistan to the International Court of Justice for violation of Genocide Convention, the charges were dropped because of diplomatic agreement and Bangladesh resisted in taking action against Pakistan at the ICJ.[xi]

ICT is one of the most fascinating and complicated war tribunals to take place and it can set a precedent example for countries in South Asia and Southeast Asia.  International paradigm has begun to shift and the power has been shifting to Asia. This Tribunal will play a big role in establishing a shift in practicing international laws in a domestic setting and also because it is not an UN tribunal and it had been fully sponsored and dictated by the government of Bangladesh.

According to Sanoj Rajan, Associate Director of the Program on Humanitarian Policy and Conflict Research at Harvard University,  “decision to avoid any international collaboration in the ICT was exclusively that of the Govt. of Bangladesh. The only non Bangladeshi involvement was that of United States Ambassador – at – Large for War Crimes, Mr. Rapp which was vehemently resisted by the Bangladesh.” He believes that “an initiative like this is always welcomed by the international community including UN, but the concern majorly is about the fairness of the proceedings. In ICT also there are many reasons why international community should be concerned on the fairness of the trial and that is what reflects in most of the literature on the topic.”[xii] The European Union also offered to assist with the tribunal.

The case of death penalty

One of the key differences between the ICT and the other international tribunals it the implication of death penalty. Under the Rome Statute, the ICC is not permitted to give death penalty to the guilty and currently no other tribunal has managed to give death penalty. When it comes to death penalty, Bangladesh is a retentionist country and methods of practicing the death penalty are by hanging and shooting. It is highly debatable if death penalty is unconstitutional in Bangladesh or not. Bangladesh still practices death penalty but the number of death penalty that has been decreased dramatically within the last year. Most of the death penalties took place since 2008 was for murder. Altogether with seven other countries, there were only 38 official executions that were carried out but there were 45 death penalty verdicts were imposed in Bangladesh in the last year.[xiii] However, according to Death Penalty Worldwide, an organization that monitors death penalty and the countries that are practicing it, claims that there were zero death penalties and there are at least 1172 people waiting to be prosecuted under death penalty.

It should be noted that that Bangladesh is part of the International International Covenant on Civil and Political Rights. Technically, ICCPR, does not prohibit death penalty and second Optional Protocool to the ICCPR calls for aboliton of death pentaly during peacetime and Bangladesh have not adopted the second optional protocol to the first treaty.   Mr. Abdul Quader Molla’s death sentence presents an interesting dillemma for the ICT. It also begs the question if the trials are fair and meeting international standards. In the beggining, Mr. Molla was given life imprisonment; however, after a popular protest, he recieved a life sentence. Under the ICT Act the government can give him the death sentence but the trials are closed off to the international community. According to the Bangladesh Laws (Revision and Declaration Act 1973)

Article 121 states that:

Whoever wages war against Bangladesh, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or 42 [imprisonment] for life, and shall also be liable to fine. Illustration A joins an insurrection against Bangladesh. A has committed the offence defined in this section.

And under the ICT Act 1973, under the sentence article,

20. (1) The Judgement of a Tribunal as to the guilt or the innocence of any accused person shall give the reasons on which it is based: Provided that each member of the Tribunal shall be competent to deliver a judgement of his own.

(2) Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper.[xiv]

These articles clearly give permission to give the death sentence for the guilty, however, this becomes confusing since Mr. Molla was awarded life imprisonment and the guilty verdict was changed to the death penalty. Death penalty for Mr. Molla was sought after the protest on 5 February 2013, calling for a death sentence. Since Bangladesh is a party to the ICCPR, Bangladesh is obligated to provide fair trials for Mr. Molla.  Overturning a sentence to death penalty makes Bangladesh guilty of violating the ICCPR treaty, under the provision of Article 15, where it clearly states that, “nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.”[xv] The tribunal in Bangladesh repeatedly failed to keep up with the international standards when it comes fair trails. Organizations such as International Commission for Jurists and No Peace Without Justice have also questioned its authenticity of the trial.

The first successful trials took place on genocide was with the International Criminal Tribunal for Rwanda. However, had the Bangladeshi tribunal proceeded in the 1974, it could have set precedent for the war crimes tribunals now. However, there is an increasing concern about the fairness of the trials that are taking place. The Bangladeshi government should be applauded for their efforts in trying to bring justice to the people who have suffered greatly and to the rape victims, but it seems like the Bangladeshi government is after vengeance than justice. The Bangladeshi government should welcome collaboration from the international justice community. Together, they can help to bring justice and help to reconcile.

[1] The author is a graduate of McGill University and currently residing in Canada. She has recently interned with civil party lawyers at the Extraordinary Chambers in the Courts of Cambodia.  Before then, she worked on Will to Intervene Project at the Montreal Institute of Genocide Studies.

[i] U.S. Consulate (Dacca) Cable, Selective Genocide, March 28, 1971, Confidential, 2 pp.
Source: Record Group 59, Subject Numeric File 1970-73, Pol and Def, Box 2530

[ii] Moses, Dirk A. The United Nations, Humanitarianism,  and Human Rights War Crimes/Genocide Trials for Pakistani Soldiers in Bangladesh,  1971–1974  See : http://dirkmoses.weebly.com/uploads/7/3/8/2/7382125/moses_east_pakistan_in_hoffmann_human_rights.pdf

[iii]  Ibid. Moses, Dirk A.

[iv] Shariach, Lisa. Rape as Genocide: Bangladesh, the Former Yugoslavia, and Rwanda  New Political Science.  See: http://www.tandfonline.com/doi/pdf/10.1080/713687893

[v] Bangladesh Genocide Archive. See: http://www.genocidebangladesh.org/

[vii] Ibid. Ahmed, Anis.

[viii] Genocide Watch. The 1971 Bangladesh Genocide. Coordinator of the International Alliance to End Genocide.  See: http://www.genocidewatch.org/bangladesh.html

[ix] Ibid. Genocide Watch.

[x] Jalil, Abdul.  War Crimes Tribunals in Bangladesh: A Socio-Political and Legal Impact Analysis ICSR. See:

http://dx.doi.org/10.5296/jsr.v3i2.2484

[xi] Ibid. Genocide Watch.

[xii] Email correspondent with Professor Sanoj Rajan

[xiii]  Keck, Zachary. The Death Penalty: Fading Into the Past? The Diplomat. See: http://thediplomat.com/the-editor/2013/04/12/the-death-penality-fading-into-the-past/

[xiv] Government of Bangladesh. International Crimes (Tribunals) Act 1973, . See: http://bdlaws.minlaw.gov.bd/pdf/435___.pdf

[xv] International Covenant on Civil and Political Rights. University of Minnesota. See: http://www1.umn.edu/humanrts/instree/b3ccpr.htm

 

 

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April 6, 2013

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Human Rights

International Wrongful Convictions: The Unwritten Rules

Written by: Janis C. Puracal, an appellate attorney at the law firm of Bullivant Houser Bailey in Portland, Oregon.

 

 

At this time last year, my brother was being slowly starved to death in a Nicaraguan prison.  I had been fighting for Jason as part of his defense team for nearly a year and a half with little-to-no movement in the Nicaraguan court system.

 

Jason and I, along with our younger sister, Jaime, grew up in Tacoma, Washington.  Jason moved to Nicaragua to serve in the Peace Corps in 2002 after graduating from the University of Washington.  He decided to stay after his service and was working as a real estate broker for the local RE/MAX franchise in San Juan del Sur.

 

On November 11, 2010, Nicaraguan national police stormed Jason’s beachfront office wearing masks and carrying AK rifles.  They threw Jason in the back of a van with ten others and took the computers, phones, and files from the office.  At the same time, the police raided his home where our 65-year-old mother had been visiting from the US and was staying with Jason’s three-year-old son.  The police held my mother and nephew at gunpoint for six hours and refused to tell them what they were looking for.

 

After being held for three days without a phone call to his family or an attorney, Jason, along with ten Nicaraguans, was finally charged with international drug trafficking, money laundering, and organized crime.  But there was no evidence of any crime at all.  Indeed, the police and the prosecution admitted at trial that there were no drugs and no illegal transfers of money.  Instead, the prosecution argued that Jason, a real estate broker, had large sums of money going into and out of his corporate account, and those large sums must be evidence of crime.

 

It took 22 months and an international campaign involving thousands of supporters to finally bring Jason home.  As a civil lawyer trained in commercial litigation, I hit a steep learning curve as part of Jason’s defense team.  Through the 22 month crash course in international wrongful convictions, I quickly learned that there are many unwritten rules to practicing in this area.  Here are just a few:

 

  • Recognize that the courtroom may not be the real battleground.

 

The case against Jason lacked any merit at all; yet, he continued to languish in a maximum security prison without access to proper food, water, or medical care.[1]  During the first week of Jason’s imprisonment, he was moved from prison to prison as the police attempted to hide him from his attorney and family.  Jason spent three days at El Chipote, the infamous underground torture facility used during the Somoza regime.  Jason was thrown into a dark cell with only his boxer shorts and forced to live amongst the cockroaches, ants, and screaming from terrified prisoners in other cells.[2]  Jason was then transferred to La Modelo, the maximum security prison just outside Managua where he spent the remainder of his wrongful detention.  He shared a 12’ x 15’ cell with 8-12 other men and slept on concrete for much of the time.  The daily fight for food and water caused Jason to lose over 35 pounds and suffer from digestive disorders and physical effects of malnutrition.  Jason’s gums began to bleed; his eyes became sunken in; and his skin was covered in rashes and bites from ants, ticks, and mosquitoes.

 

We were fighting the clock, terrified that Jason would die in prison before we could get him out.  But it took us nine months to even get the case to trial.  Despite a three month time limit to bring a criminal case to trial under Nicaraguan law, the prosecution repeatedly requested delays without citing a reason, and the judge granted them with no notice to the defense.  Our entire defense team would appear for the first day of trial only to learn that the trial had been delayed.

 

Throughout the nine months, the defense asked for, and was denied, access to the evidence that had been seized from Jason’s office.  At trial—closed to family and media—the prosecution argued that the documents from the office proved money laundering, but refused to put any of the allegedly inculpatory evidence into the record.  Not a single bank record was offered to prove money laundering and, instead, the prosecution simply offered its “financial expert” (a police officer) to testify that the RE/MAX account held large sums of money.  While the prosecution was permitted to try its case by relying on hearsay from police officers citing anonymous informants, the defense was denied the right to fully examine those officers or put on its own key witnesses to rebut the testimony.  All the while, Jason was refused confidential communications with his lawyers, making preparation for trial a logistical nightmare.

 

Despite the roadblocks facing us, the evidence during the trial came out in Jason’s favor.  The police admitted that they never found a single gram of drugs—not just on Jason, but on any of the eleven defendants in the case.  The police also admitted that no money had ever changed hands between Jason and any of the other defendants.  The prosecution put 295 titles to properties into evidence that were seized from Jason’s office and claimed the titles were evidence of money laundering.  Six of the titles, in fact, belonged to the Nicaraguan military.  The police were forced to admit at trial that Jason did not own any of the properties, and the police had never even questioned the buyers or sellers of the properties.

 

We thought Jason would be coming home after the trial.  Instead, the judge took a 15 minute recess after closing arguments and then convicted all 11 defendants.  He sentenced Jason to 22 years in prison.

 

It was clear that we never had a shot of fighting this case on the merits.  We had to find the pressure points outside the courtroom and win the war elsewhere.

 

  • Understand that ratification of a treaty doesn’t necessarily mean acceptance.

 

Nicaragua ratified the International Covenant on Civil and Political Rights (“ICCPR”) on March 12, 1980.[3]  It was one of 48 countries that voted in favor of the Universal Declaration of Human Rights,[4] and was a signatory to the American Convention on Human Rights (“ACHR”).[5]  Both the ICCPR and the ACHR provide for the right to trial before a competent, independent, and impartial tribunal established by law.[6]

Nicaragua’s signature on these fundamental treaties respecting human rights should have been our saving grace.  Indeed, Nicaragua’s own law requires that, to be a district court judge under Nicaraguan law, one must (1) be an attorney, (2) have practiced for at least three years, and (3) have served as a local judge for at least two years.[7]

Yet, we discovered just one month before Jason’s trial that the man who was appointed to preside over the trial was neither a judge nor a lawyer.[8]  Rather, 27-year-old Kriguer Alberto Artola Narvaez was not a licensed attorney, never practiced law, never served as a local judge, and had never even seen a trial.

The story broke in the Nicaraguan news before trial and caused an uproar.  Still, Artola Narvaez was permitted to preside over the trial and issue the conviction and 22-year sentence that would ultimately end up costing my family everything we had worked for to fight against.  Artola Narvaez fled the country shortly after we filed a petition in the United Nations pleading for intervention.[9]

The unfairness of it all was not lost on any of us.  But we were able to use the injustice to energize an international outcry against the Nicaraguan system.  The system had left us with no redress except the one of public opinion and that was what, in the end, was the most powerful.

 

  • Look for leverage in unconventional places.

 

The crimes with which Jason was charged are traditionally governed by domestic law, but domestic law had failed us.  The judicial process in Nicaragua was being selectively enforced and, in Jason’s case, its laws were arbitrarily used as leverage against the public.  Without due process, a country has the potential to become, effectively, a lawless society.

 

So the question became:  where do you turn when you cannot rely on a process guaranteed under domestic criminal law?

 

The Organization of American States (“OAS”), established to enforce and interpret the ACHR, is one option.  The OAS accepts and rules on cases of human rights violations brought by individuals or groups.  But the path to a binding decision is long and slow.  The court has a backlog that could take years to resolve.  With Jason slowly dying in prison, we didn’t have time to wait.

 

We had to look for pressure points elsewhere.  One place was in the media.  The media proved to be an invaluable force, but we had to do our part.  We had to deliver content that was engaging, well-packaged, and, most of all, reliable.

 

For example, because we could not get to a decision in the OAS in time, we looked to the United Nations Working Group on Arbitrary Detention (“WGAD”).  The WGAD investigates cases by looking at only the procedural violations.[10]  The WGAD, unlike the OAS, does not address the merits of the case (i.e., the question of innocence or guilt) and operates under a vastly different procedure as part of the United Nations.[11]  The WGAD’s decisions are not binding; they are merely recommendations to a state.  The timeline for a recommendation, however, is just three to six months.

 

We filed a petition with the WGAD on January 18, 2012, and it was the first time the Government of Nicaragua had been called before the WGAD.  The filing made headlines in Nicaragua.[12]

 

The WGAD’s decision was released in May 2012, and the Group agreed that “there were major irregularities” in Jason’s trial, resulting in an arbitrary detention.[13]  The WGAD recommended the Government of Nicaragua “order the immediate release of Mr. Puracal.”  Again, the media came through, splashing the papers with the headline:  “United Nations Calls on Nicaragua to Immediately Release Wrongly Imprisoned U.S. Citizen Jason Puracal.”  Jason was released four months later.

 

*          *          *

 

We will likely never know what ultimately forced Jason’s release and return home in September of 2012.  I am, however, certain that it took a global effort from thousands of people around the world to save his life.  Many others are not so lucky.

 

Although Jason was deported from Nicaragua, the prosecution has appealed the case to the Nicaraguan Supreme Court, forcing us to turn to the OAS for help.  The petition to the OAS will seek legal reform to help the many left in Nicaragua who have not been able to navigate the labyrinth.  In the meantime, there is much work to be done around the world.  To all of those who have led, joined, or supported the fight, thank you.

 

[1] Physical abuse and the denial of food, water, and proper medical care constitute serious violations of the standard for the detention of prisoners.  Standard Minimum Rules for the Treatment of Prisoners, para. 20(1) (“Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.”); para. 20(2) (“Drinking water shall be available to every prisoner whenever he needs it.”); para. 22(2) (“Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals.  Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.”).

[2] The unsanitary and infested conditions in which Jason was forced to live were further violations of international standards.  Standard Minimum Rules for the Treatment of Prisoners, para. 10 (“All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.”), para. 12 (“The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.”), para. 14 (“All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.”), para. 15 (“Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.”).

[4] Yearbook of the United Nations 1948-1949 at p. 535.

[5] See Signatories and Ratifications available at http://www.cidh.oas.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm.

[6] Article 14 of the ICCPR provides that “[i]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”  Article 8 of the ACHR confirms the same right:  “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him[.]”

[7] Article 137 of the Judicial Power Organization Act.

[8] See Lésber Quintero, Abnormal Appointment of Judge in Rivas, El Nuevo Diario, July 4, 2011, available at:  http://www.elnuevodiario.com.ni/nacionales/106766-raro-nombramiento-de-juez-rivas; Ramón Villarreal B., Lucía Vargas, and  Eddy López, Deputy Judge Unregistered Attorney, La Prensa, July 4, 2011, available at: http://www.laprensa.com.ni/2011/07/04/politica/65636; Ramón H. Potosme, Ramón Villarreal, and Lucía Vargas, Rivas Judge is Not a Lawyer by Error, La Prensa, July 5, 2011, available at: http://www.laprensa.com.ni/2011/07/05/nacionales/65706.

[9] See Lésber Quintero, Controversial Judge Leaves Rivas, El Nuevo Diario, February 2, 2012, available at:  http://www.elnuevodiario.com.ni/nacionales/240484.

[10] The WGAD was established by resolution 1991/42 of the former Commission on Human Rights.  Resolutions 1997/50, 2000/36, and 2003/31 were adopted by the UN Commission on Human Rights to extend the mandate of the WGAD.  Resolutions 6/4 and 15/18, further extending the mandate of the Working Group, were adopted by the Human Rights Council, which has “assume[d] . . . all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights . . . .”  G.A. Res. 60/251, para. 6 (Mar. 15, 2006).  See also http://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx.

[11] See, e.g., Revised Methods of Work of the Working Group, available at:  http://www.ohchr.org/EN/Issues/Detention/Pages/Complaints.aspx.

[12] See, e.g., Elizabeth Romero, Denounce the Country by “Arbitrary Detention,” La Prensa, January 24, 2012, available at:  http://www.laprensa.com.ni/2012/01/24/ambito/88174.

[13] Opinions adopted by the Working Group on Arbitrary Detention at its sixty-third session, 30 April–4 May 2012 – No. 10/2012 (Nicaragua), available at:  http://ap.ohchr.org/documents/dpage_e.aspx?m=117.

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April 1, 2013

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Armed Conflict, Law of War, Terrorism

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The Last Resort

Terrorism

Until the dramatic events of September 2001 terrorism was perceived as an exceptional and a rare phenomenon, which didn’t quite bother specialists of any field. Today there is hardly a person who has never though about the roots and the nature of this evil. The growing threat takes multiple forms, including transnational groups targeting means of transport, planning attacks with weapons of mass destruction or through the Internet, or resorting to new channels to finance their acts.[1] And even though we may disapprove of it, terrorists can indeed assemble plausible if not logical arguments in defense of their actions.

However, whatever the ideological motives of terrorist groups are one should, consider the reasons for a choice of this means of warfare in the first place as to develop an effective doctrine to combat it. As Major Robert W. Cerney states, “terrorists exercise their right to fight for what they believe in the only way they can with any hope of survival till the eventual achievement of their goal.”[2] Terrorism as a means of warfare indeed proves to be successful, but the key point in Maj. Cerney’s assertion is that it’s the only feasible option for those waging an asymmetric war.

It is worth mentioning, that none of the conflicts is perfectly symmetrical, but the wider the gap, the dirtier it gets. Today with only one remaining superpower and more generally the considerable and predictably widening technological divide, a huge imbalance in the capacity of warring parties has become a characteristic feature of any contemporary armed conflict.[3] The wide disparity between the parties, primarily in military and economic power, potential and resources, provides for a need for a form of violence that serves as a force multiplier that maximizes the outwardly limited resources in confrontation with an incomparably stronger opponent that a party cannot effectively challenge by conventional means. Given the inability to fight on the enemy’s own ground and to challenge a stronger opponent on equal terms, the weaker, lower status side has to find some other ground and to rely on other resources to establish a two-way asymmetry.[4] This, in turn, conditions the terrorists’ modus operandi: attacking the enemy’s weakest points, namely, its civilians and non-combatants, thus, not conforming to international legal standards. Yet, why would one play by the system rules when those rules are established to support a system fought…

Western societies are becoming more vulnerable due to many factors, including global communications, travel, and the proliferation of weapons technology, as well as the fact that the number of relatively deprived people in failing societies is growing.[5] The threat of terrorism forces them to respond by increasing homeland security measures. The latter have reduced the number of attacks by 34 percent, limiting the number of terrorism victims to an average of 67 a year and having cost the developed countries roughly US$70 billion since 2001.[6] The material cost of a suicide bombing, in turn, is as low as $150(US), and results in an average of 12 deaths, spreading enormous fear throughout the targeted population.[7] Thus, it amounts to an estimated $5.8(US) billion a year protecting 34 innocent lives which might be deprived at a price of $425(US). Apart from this financial asymmetry, one should also bear in mind that terrorism is responding to new security challenges with new approaches having the same bloodshed effect.

To this end, terrorism seems to be the last if not the only resort of the weaker parties trying to shift the balance and restore the warfare symmetry with any means possible. Given that the means are dirty and that terrorism will not conform to international standards, we must adapt to it and consider a more effective, yet legal, strategy of combating it with a view of its asymmetric character.

Written by Jan Guardian

[1]       United Nations Office on Drugs and Crime, The Universal Legal Framework Against Terrorism. New York (2010), p. iii.

[2]       Major Robert W. Cerney, International Terrorism:  The Poor Man’s Warfare. Executive Summary. USMC CSC 1991 [online][accessed 28 March 2013].

[3]       Robin Geiss, Asymmetric Conflict Structures. International Review of the Red Cross, Vol. 88, 864, December 2006, 757-758.

[4]       Ekaterina Stepanova, Terrorism in Asymmetrical Conflicts: Ideological and Structural Aspects. SIPRI Research Report No. 23. OxfordUniversity Press (2008), p. 20.

[5]       Shahram Chubin, Jerrold D. Green, Terrorism and Asymmetric Conflict in Southwest Asia. RAND (2002), p. 7.

[6]       Bjorn Lomborg, Is counterterrorism good value for money? NATO review 4 (2008) [online][accessed 29 March 2013].

[7]       Ibid.

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Victims of Terrorism Acts: The Voices to Be Heard

Written by Lina Laurinaviciute

victimsAlthough terrorism has already been on the agenda of the international community for many years, absence of attention to the concerns of victims of terrorism acts has been significant until fairly recently. The change in at least thirty years[1] taking theoretical debate about victim role in criminal justice was caused by the growing attention to terrorism in general due to the spreading worldwide large-scale terrorist acts. Indeed, terrorism continues to pose a high threat to the security and, more importantly, has become more diverse in its methods and impact. Therefore, much of the public and political concerns are particularly directed towards terrorist acts which lead to many casualties and fatalities.

Figures of terrorist attacks speak for themselves: on 9/11, 2001, more than 3000 people were directly affected by loss of life or injuries; the Bali bombings of 2002 killed 202 people, 164 of whom were foreign nationals (resulting in so-called cross-border victims). A further 209 people were injured.[2] Looking even at regional level, recent Europol’s report[3] on situation of terrorism records a total of 249 terrorist attacks in the European Union (hereinafter – EU) in 2010. It is self-evident that specific support oriented to the needs of victims of acts of terrorism is sufficiently and unquestionably justified on national, regional and international levels.

Notwithstanding the enduring attempts of the international community to fight against terrorism, regrettably, victims of acts of terrorism were mostly “forgotten” and regarded only as collateral damage. Yet because the consequences caused by terrorism will continue to affect international community, which itself is notably showing an increased sensitivity to victims of such calamity, the discussion on the effective response not only to the perpetrators of such criminal acts but also to the victims, indicates the global significance of the the efficient support to victims of terrorism acts.

Regarding the specific characteristics of the victim of terrorism acts, paragraph 1 of the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, defines victims as: “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.” This definition comprises all situations where people are victimized as a result of criminal offences committed by terrorist organizations and individuals.[4]

Additionally, according to the Council of Europe Recommendation 2006(8) on assistance to crime victims “the term ‘victim’ also includes, where appropriate, the immediate family or dependents of the direct victim”[5] and the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power includes “persons who have suffered harm in intervening to assist victims in distress or to prevent victimization (also often referred to as ‘first responders’).”[6]

Thus, it is clear that victims of the terrorism acts would fall under the general definition of victim within the criminal justice system. However, it is important to note that terrorism acts as such have unique characteristics which, consequently, lead to the differentiation of the victims of terrorism acts from the victims of other violent crimes.

Regarding the definition of terrorism itself it is important to note that the definition is not generally yet agreed upon. However there were some efforts made to define International terrorism. Some authors, for instance, distinguished International terrorism as a “threat or use of violence for political purposes when such action is intended to influence the attitude and behavior of a target group other than its immediate victim and its ramifications transcend national boundaries”.[7]

Continuing, Rianne Letschert and Antony Pemberton pointed out, that: ”Typologies of terrorism distinguish between religious-motivated terrorism, left and right-wing terrorism, ethno-nationalist or separatist terrorism, vigilante terrorism and single issue terrorism. Terrorism can be both single-phased (bombing and shooting), that is characterized by punctuated short-duration attacks and dual-phased incidents, involving protracted kidnappings, hijackings, and other acts of hostage-taking.”[8] Consequently, the different types and forms of terrorism make it challenging for reaching the consensus on a definition that would cover all existing terrorism forms and could be used as a basis for the joint action under international criminal justice system.

Cyrille Begorre-Bret emphasized that:”the consequence of the ‘definitional abstention’ is of a political and practical nature. If everyone is allowed to define terrorism the way they want, violence will continue indefinitely. Everyone will delimit terrorism in such a way that his own violence cannot be described as illegitimate. If one wants to break the vicious circle that leads from violence to retaliation and from the latter to the former, one needs an objective point of view and therefore a definition. The definition of terrorism is thus far from being just a theoretical issue.”[9]

Currently existing definitions of terrorism, usually incorporate three main elements:

“1.  The intention to cause death or serious bodily harm and/or damage to public or private property;

2. The targets are often randomly selected persons, in particular civilians and non-combatants;

3. The purpose of such an act is to intimidate a population (or a specific segment within the population), or to compel a government or an international organization to do or to abstain from doing any act or to attempt to destabilize governments or societies.”[10]

Most acts considered as terrorism inflict large scale human and material devastation. These acts make impact not only to the direct victims, who may be physically injured or killed, but may also have lasting effects on indirect victims, such as their dependents or relatives, as well as vicarious victims, which may include members of the broader society.

From the victim approach, terrorism could be understood as a ‘blind’ violence because it is not targeted at victims intuit personae but it strikes at random, innocent people.[11] However, it could also be associated with symbolism which leads to the direct impact on victims. “Symbolic targets are chosen because their identity or location or activities symbolize something which the terrorists will like to attack. The symbolism attached to the terrorists’ victim may be personal or representative, or it may be ‘everyman’ symbolism.”[12] Thus, as noted by Cyrille Begorre-Bret: “if one defines terrorism through the status of its victims, one manages to avoid the discussion of the legitimacy of its cause.”[13]

Therefore, the category of victims of acts of terrorism is specific, especially addressing their needs regarding compensation arrangements. Furthermore, “victims of terrorism are different from victims of violent crime in that they may be seen as ‘instruments’ used by terrorists in order to modify or intervene in the political process. This public dimension requires a public response which may be seen as solidarity.”[14] Furthermore, the difference in treatment afforded to victims of acts of terrorism, as distinct from victims of other crimes, should be guided by their specific needs and vulnerability.

Regarding the recognition of victim status, generally, judicial authorities need to recognize that the person in question have suffered harm as a direct consequence of the criminal conduct for which the accused is charged so that they can appear as victims in criminal proceedings, including trial. As and example, for the purposes of participation in trial procedures, the Pre-Trial Chamber I in the Situation in the Democratic Republic of Congo considered that “the determination of a single instance of harm suffered is sufficient, at this stage, to establish the status of victim.”[15]

It is important to note, that officials leading investigations or prosecutions may interrogate surviving victims of terrorist acts and thus may prejudice their status as victims or lead to secondary victimization. Therefore, if an investigation is necessary to determine whether victims really suffered harm as a result of criminal acts, victims should be questioned in a careful manner.

Furthermore, the question of the status of the victim should not be directly or solely dependent on the determination of guilt of the accused. as it is stated in the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power “a person may be considered a victim, […] regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim”.[16]

The idea that victims should be allowed to participate in international criminal proceedings stems from a broader movement over the last several decades advocating for restorative as opposed to merely retributive justice. Proponents of this movement promote that criminal justice mechanisms should serve the interests of victims in addition to punishing wrongdoers, and that the participation of victims in criminal proceedings is an integral part of serving victims’ interests.[17]

However, the most common[18] approach to the role of the victims in the administration of criminal justice is the one of victim – as an evidence to prosecute crime – terrorism here is not an exception. In essence, “victims of crime were the forgotten persons of the criminal justice system, valued only for their capacity to report crimes and to appear in court as witnesses.”[19] It is important to note, that the International Criminal Tribunals for the former Yugoslavia[20] and for Rwanda[21] in their jurisdictions, did not envision the possibility of victims to intervene in the proceedings, except as witnesses. Such approach raises strong concerns for the ‘visibility’ of victims and more particularly, for the protection of their right to be heard in the criminal proceedings.

Pursuant to Article 14 of the International Covenant on Civil and Political Rights, access to justice is a fundamental right of all persons. Nevertheless, this, one of the most important international human rights instrument goes into detail only with regard to basic procedural rights that shall be afforded to accused persons.[22] However, victims of terrorist crimes, as much as victims of crime in general, should be entitled to access criminal proceedings. Although the concept of victim participation in criminal proceedings is not easily defined, it may be described as victims “being in control, having a say, being listened to, or being treated with dignity and respect.”[23] This also implies the additional right to put questions to the defendant, to call witnesses, and to provide additional evidence.[24]

Naturally, the extent of victims’ role remains a central question for international criminal justice.

Some scholars[25] are concerned that after victim infuse into the legal process, highly emotional accounts from victims risk violating the “procedural justice”. Some[26] observe that “far from giving the victims a hearing, they may leave them feeling silenced”[27]. While others advocate that “participation in criminal proceedings has a number of potential restorative benefits, including the promotion of victims’ ‘healing and rehabilitation’.”[28]

In light of this, the question is whether victim participation in recent developments of international criminal justice increased the “positive” role of the victims of terrorism acts within the criminal proceedings by actually allowing greater recognition of victims’ voices and experiences.

In this regard, the Special Tribunal for Lebanon (hereinafter – STL)[29], established in 2006, deals precisely with the crime of terrorism and therefore addresses the victims of terrorism acts. The establishment of this tribunal showes that terrorist crimes that are relatively small in terms of number of casualties can have large political intimidation effects. Michael P. Scharf noted on this concern: “with regard to the notion of fear, terror or panic, that those who are victim of such state of mind need not necessarily make up the whole population.” [30] Therefore, the assassination of the Lebanese Prime Minister Rafik Hariri has been held sufficiently important to result in the establishment of the STL.[31]

Regarding the role of victims of terrorism act, the Statute of the STL grants rather broad access to the participation in the criminal proceedings, respecting also the rights of the accused. The Statute of the Tribunal established within the Registry a section for victims and witnesses, which „provides measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses“[32] Subsequently, Rules of Procedure and Evidence[33] govern, inter alia, the participation of victims and their protection in detail.

Indeed, the participating in the proceedings notion distinguishes victim as „victim of an attack within the Tribunal‘s jurisdiction who has been granted leave by the Pre-Trial Judge to present his views and concerns at one or more stages of the proceedings after an indictment has been confirmed.“[34]

In addition, Article 17 of the STL Statue on rights of the victims recognized: „Where the personal interests of the victims are affected, the Special Tribunal shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Pre-Trial Judge or the Chamber and in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Pre-Trial Judge or the Chamber considers it appropriate.“[35]

However, the normative framework of the STL also features a number of restrictions. Significantly, the victim‘s participation in the proceedings is limited to a participation through the legal representative unless the Pre-Trial Judge authorizes otherwise.[36]

Nevertheless, participating in the proceedings are entitled to receive documents filed by the Parties (however, with the restriction on the interests of justice).[37] In addition, two more rights are provided for the victims participating at the trial stage. Firstly, a victim „may request the Trial Chamber, after hearing the Parties, to call witnesses and to authorise him to tender other evidence“. It follows, that a victim may also exercise right to examine or cross-examine witnesses, however, „subject to the authorisation by, and under the control of, the Trial Chamber after hearing the Parties“[38]. Secondly, under the conditions of Rule 87 (B) a victim may also file motions and briefs.

Moreover, victims participating in the proceedings at the sentencing stage, has a right to be heard by the Trial Chamber or file written submissions relating to the personal impact of the crimes on them subject to the authorisation by the Trial Chamber.[39] While on victims’ participation at the appeal stage, also subject to the authorisation of the Appeals Chamber, Rules of Procedure and Evidence stipulates that „[…] after hearing the Parties, a victim participating in proceedings may participate in a manner deemed appropriate by the Appeals Chamber.“[40]

Therefore, it follows that, establishing the normative framework of the STL, introduces a changing role of a victim in criminal justice systems, moving from the perception of a victim as witness towards more victim-centred approach, which allows victims to participate in criminal proceedings independent of their role as witnesses and envisage to give victims a voice in the proceedings ensuring that justice is done in relation to their interests, however, in balance of a fair and expeditious trial.

However, to ensure effective access to justice for the victim of terrorism acts is possible only if the State puts in place legal aid mechanisms as the effective victim support, beyond criminal justice response, also requires, the necessary material, medical, psychological and social assistance, including information on available health and social services. In this regard, according to the findings of UNODC: “legal representation is a condition in most legal systems for the victims to participate in a trial.”[42] Therefore, it is clear, that there is a strong link between legal status, legal access and defense of victims’ rights.

Through the course of history it is evidenced, that terrorist violence is unpredictable, it can occur at anytime and anywhere. Anyone can use it and anyone can be its target. “Wars between states are confined to geographical areas and have a declared set of combatants, but terrorism can be conducted with relative ease across many national borders.”[43] It throws a complicated set of challenges varying in scope and scale to different state governments which often grope for appropriate means to respond.”[44]

Terrorism will continue to be a difficult and persistent feature of international violence. Therefore, international cooperation and coordinated international efforts are necessary to ensure effective transnational proceedings and the protection of terrorist acts victim’s rights, beyond the borders. UNODC observed that: “Cross-border issues may add a layer of complexity to the measures required to protect victims’ access to justice and/or compensation.”[45] As example here can be mentioned the location of the trial proceedings, which makes impact on the interests and involvement of the victim, and through this, also to the chances for a successful trial.

In such case, States would have to make additional efforts to extend the support which is usually available to “domestic” victims to victims residing abroad, or to victims residing in their territory who have been victims of offences abroad. In this regard, the experience of foreign victims of the bombings in Indonesia in 2004 illustrates some of the cross-border challenges faced. “While under the Indonesian framework regarding treatment of victims and witnesses, there was no obstacle for foreign victims to seek restitution, one difficulty encountered by a foreign victim that sought medical treatment in a third country was that the legislation of neither Indonesia nor the country of nationality of the victim provided for coverage in those circumstances.“[46]

Therefore, in enhancing the effectiveness of their criminal justice systems, in particular regarding their ability to cope with large-scale crimes, States should also pay specific attention to the support afforded to victims and to the particular challenges faced by victims of acts of terrorism. Particularly in the field of criminal law and jurisdiction, states should, as a consequence of their participation in treaty regime, amend their legislation in accordance with the requirements of the treaty. This may entail substantial changes in their systems of criminal law and procedure. This area is sensitive in the States and thus national authorities too often neglect to implement changes.[47]

Yet, it is also clear that only formal incorporation of relevant international law obligations into the domestic legal system does not guarantee, that anti-terror measures are effectively enforced.[48] Enforcement itself is a complex activity, which ranges from formal incorporation of international law instrument to the monitoring of its practical applications by courts and also law enforcement officials.

In this regard, the reports[49] under relevant Security Council resolutions shows inconsistencies in domestic legislation and enforcement practices, especially the lack of harmonization of criminal law provisions bearing on international terrorism. This is also applied to the regional context, such as the EU, in which the 2002 Framework Decision on combating terrorism “has been implemented by Member States in a manner which can hardly be deemed satisfactory in terms of consistency.”[50]

Thus it is self-evident that such discrepancies, despite all the efforts of international community to harmonize criminal law standards on terrorism, are detrimental to the efficiency of anti-terror measures and therefore also for the effectiveness of the support of the victims of terrorism acts, irrespectively of the nationality of the victim, perpetrator, or the place of commission of the crime. From the focus on victim support from a criminal justice point of view, there is a clear necessity to criminalize acts of terrorism in the domestic legal order, implying the smooth implementation of international normative standards.

In this regard, imposing a worldwide recognized definition of terrorism would reduce a lot of recent controversies and it would help to limit the potential for abuses, that states sometimes have in defining crimes related to international terrorism in their domestic legal systems. The message arising from the mentioned ‘danger’ of the lack of common definition on terrorism is clear: conflicting interests of nation states can make universal counter-terrorism measures impossible.

However, justice from the victim point of view, depends not only on the prosecution of the perpetrators, but also on their role in the criminal proceedings and the capacity to restore the situation for victims. In response to victimization, it is absolutely essential to identify the rights and needs of victims of terrorism acts, to protect those rights, to support victims and to provide reparation for the damage they have suffered.

[1] Harry Mika, Mary Achilles, Ellen Halber, Lorraine Stutzman Amstutz, Listening to Victims – A Critique of restorative Justice Policy and Practice in the United States, Federal Probation Vol. 68 (2004), p. 38.

[2] Rianne Letschert, Antony Pemberton, Addressing the Needs of Victims of Terrorism in the OSCE Region, Security and Human Rights no. 4 (2008), p. 298.

[3] EU terrorism Situation and Trend Report (TE-SAT), 19 April 2011. Available at: <https://www.europol.europa.eu/content/press/eu-terrorism-situation-and-trend-report-te-sat-2011-449>, (Last visited on 15 June 2012).

[4] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Adopted by General Assembly resolution 40/34 of 29 November 1985, para. 1. Available at: <http://www2.ohchr.org/english/law/victims.htm>, (Last visited on 8 June 2012).

[5] Council of Europe Recommendation 2006(8), adopted by the Committee of Ministers on 14 June 2006, para. 1.1

[6] See supra note 4, para. 2.

[7] SankarSen, Director General, Border Security Force, South Bengal, Features of Modern Terrorism, The Police Journal (1993), p. 37.

[8] Rianne Letschert, Antony Pemberton, Addressing the Needs of Victims of Terrorism in the OSCE Region, Security and Human Rights no. 4 (2008), p. 301.

[9] CyrilleBegorre-Bret, The Definition of Terrorism and the Challenge of Relativism, Cardozo L. Rev. 1987 (2005-2006), p. 1994.

[11] CyrilleBegorre-Bret, The Definition of Terrorism and the Challenge of Relativism, Cardozo L. Rev. 1987 (2005-2006), p. 1996.

[12] See supra note 7, p. 37.

[13] See supra note 11, p. 1996.

[14] See supra note 8, p. 309.

[15]. Corrigendum, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS1, VPRS3, VPRS4, VPRS5,  VPRS6, ICC-01/04-101-tEN-Corr, 17 January 2006. See also Redress Trust, Justice for Victims: The ICC’s Reparations Mandate (2011), page 54.

[16] See supra note 4, para. 2.

[17] Susana SaCouto, Victim Participation at the International Criminal Court and the Extraordinary Chamber in the Courts of Cambodia: a Feminist Project?, Mich. J. Gender & L. 297 (2011-2012) p. 314-315.

[18] According to the survey on the position of the victims in legal proceedings,all respondent states victims may participate in criminal proceedings as witnesses. See supra note 8, p. 304.

[19] Marc Clark, Victim-Centred Policing: The Shepherd’s Solution to Policing in the 21st Century, Police Journal 314 (2003), p. 316.

[20] The Statute of the International Criminal Tribunal for the former Yugoslavia, adopted 25 May 1993 by SC Resolution 827.

[21] The Statute of the International Criminal Tribunal for Rwanda, adopted 8 November1994 by SC Resolution 955.

[22] International Covenant on Civil and Political Rights (1966), Article 14.

[23] Susana SaCouto, Victim Participation at the International Criminal Court and the Extraordinary Chamber in the Courts of Cambodia: a Feminist Project?, Mich. J. Gender & L. 297 (2011-2012) p. 314.

[24] See supra note 8, p. 304.

[25] Wayne A. Logan, Confronting Evil: Victims’ Rights in an Age of Terror (2007-2008),The Georgetown Law Journal (Vol. 96:721) p. 768.

[26] Such as Wayne A. Logan, Susana SaCouto.

[27] See supra note 25, p. 770.

[28] See supra note 23, p. 315.

[29] United Nations Security Council’s Resolution 1757 (2007), (S/RES/1757 ) adopted by the Security Council at its 5685th meeting, on 30 May 2007.

[30] Michael P. Scharf, Introductory Note to the Decision of the Appeals Chamber of the Special Tribunal for Lebanon on Definition of Terrorism and Modes of Participation, Int’l Legal Materials Vol. 50 (2011), p. 542, para. 112.

[31] Erin Greegan, A Permanent Hybrid Court for Terrorism, 26 Am. U. Int’l L. Rev. 237 (2010-2011) p. 249.

[32] The Statute of the Special Tribunal for Lebanon (2007), Article 12.

[33] See The Rules of Procedure and Evidence adopted on 20 March 2009. Last amendment made on 8 February 2012.

[34] Ibid.,Rule 2.

[35] The Statute of the Special Tribunal for Lebanon (2007), Article 17.

[36] See supra note 158,Rule 86 (C) (ii).

[37] Ibid., Rule 87 (A).

[38] Ibid., Rule 87 (B).

[39] Ibid.,Rule 87 (C).

[40] Ibid., Rule 87 (D).

[41] Michael P. Scharf, Introductory Note to the Decision of the Appeals Chamber of the Special Tribunal for Lebanon on Definition of Terrorism and Modes of Participation, Int’l Legal Materials Vol. 50 (2011), p. 569, para. 226.

[42] United Nations Office on Drugs and Crime, The Criminal Justice Response to Support Victims of Acts of Terrorism (2011), p. 33, para. 133.

[43] See supra note 11, p. 39.

[44] See supra note 11, p. 42.

[45] See supra note 42, p. 4, para. 10.

[46] Ibid., p. 95, para. 383.

[47] Andrea Bianchi, Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for the Legitimacy and Cohesion, The European Journal of International Law Vol. 17 No. 5 (2007). p. 895.

[48] An example of how enforcement must be carried out by means other than the formal incorporation of international legal standards is the complaint by the Chair of the CTC that states often limit themselves to ratifying anti-terror conventions and then fail to adopt the measures to properly enforce them.See Report by the Chair of the Counter-Terrorism Committee on the Problems Encountered in the Implementation of Security Council Resolution 1373 (2001) S/2004/70/, p. 6-7.

[49] See the Report from the Commission, based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism, COM(2004)409 final, 8 June 2004.

[50] Ibid.

* The picture by Caroline Glick, available at: http://www.carolineglick.com.

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Counter Terrorism : A Democratic Dilemma

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Written by Garima Tiwari
“Terrorism often thrives where human rights are violated,” and “the lack of hope for justice provides breeding grounds for terrorism.”[i]  The recent February 2013 blasts in Hyderabad, India have brought to light the weakness of the intelligence and the laws to create any deterrence. After 9/11, the threat from terrorism has been identified as the most dangerous threat by states. This is because of the unpredictability, widespread reach, lethality and ruthlessness of the attacks. The trend toward higher casualties reflects the changing motivation of today’s terrorists. Terrorist groups lack a concrete political goal other than to punish their enemies.

The Hyderabad blasts are a stark reminder of the shortcomings of Indian counter-terrorism capabilities. Since 2008, India has had 11 more terror strikes in which 60 people have been killed across five cities. The government has taken measures to beef up its security and intelligence agencies. But implementation on the ground is often stymied by India’s notorious bureaucratic red tape. The Maharashtra Anti-Terrorism squad, for example, has a capacity of 935 personnel but is actually working with just 300. A $28.5 million proposal to improve security around Mumbai was announced soon after the 2008 “26/11″ attack—involving 5,000 CCTV cameras at key junctions, motion detectors, night vision for security forces, thermal imaging for the police, and vehicle license plate identification capability. But it never took off. [ii]

The whole counter –terrorism strategy involves a democratic dilemma which consists of two parts. The first is how to be effective in counter-terrorism while still preserving liberal democratic values , and the second is how to allow the government to fulfill its first and foremost responsibility of protecting the lives of its citizens without using the harsh measures at its disposal.[iii] It is generally assumed that the ‘criminal justice model’ is the better option for democracies to overcome the ‘democratic dilemma’ they face. Terrorism inevitably involves the commission of a crime. Since democracies have well-developed legislations, systems and structures to deal with crime, the criminal justice system should be at the heart of their counter-terrorism efforts.[iv] But then special laws with higher deterrence values are required and justified, on the grounds that the existing criminal laws are not adequate to deal with the militancy because what is at stake is the very existence of state and another reason cited is the obligations under the prevailing international environment and obligations like under Prevention of Terrorism Act in India after the 9/11 attack and the UN Resolution 1373. Then there are security forces empowerment laws in India that give immunity and additional special powers to the security forces like the Armed Forces Special Powers Act; Laws of proscription that criminalises terrorist groups and a range of undesirable activities like the Unlawful Activities Prevention Act (UAPA) and other exclusive laws on control of finances, money laundering, drug-trafficking, cyber warfare and so on. [v] Counter-terror laws in India have come into being reflecting the Indian style of handling terrorism – namely, ad hocism. No single law has prevailed throughout. From time to time, depending on the regime at the Center, legislation has come into being and then faded.

When one tries to look at the counter-terror laws of India the following characteristics would come to picture which actually highlight various aspects of where the democratic dilemma is leading:

  1. Hasty enactment without giving much room for public debate or judicial scrutiny;
  2.  Overly broad and ambiguous definitions of terrorism that fail to satisfy the principle of legality;
  3.  Pre-trial investigation and detention procedures which infringe upon due process, personal liberty, and limits on the length of pretrial detention;
  4.  Special courts and procedural rules that infringe upon judicial independence and the right to a fair trial;
  5. Provisions that require courts to draw adverse inferences against the accused in a manner that infringes upon the presumption of innocence;
  6.  Lack of sufficient oversight of police and prosecutorial decision-making to prevent arbitrary, discriminatory, and disuniform application; and
  7.  Broad immunities from prosecution for government officials who fail to ensure the right to effective remedies.[vi]

Despite the experience of 26/11, India’s internal security still remains vulnerable because we have not acquired appropriate capacities and determination to prevent such an exigency. The laws emphasise more on protection of state rather than people. The Indian politicians do not accept national security with the kind of gravitas it demands.[vii] Overall, neither the laws create deterrence nor do they protect the lives of civilian population.

What is needed in not just a strong all encompassing law, but strict implementation and vigilance with respect for human rights.  There have to be proper safeguards against misuse and abuse of law. There has to be clear cut definitions of crimes and penal provisions to avoid excessive discretionary powers. Enactment of special laws should not be in haste; for greater awareness and acceptance, the process has to be transparent and should be subject to public debate and judicial scrutiny. Special laws should possess review mechanisms and ‘sun-set’ clauses for periodic assessments.[viii] Most experts have suggested strengthening policing from the grass root level, enacting tough laws and speedy trial of cases would go a long way in preventing and controlling terror attacks in the country because the terror attacks are often carried out with the help of some local elements. Then again the external factors like politicisation of the police force should be checked to ensure its effectiveness.[ix]

Terrorism is a threat which most states are today facing. We can only defeat terrorism in the long term by preventing the next generation of terrorists from emerging. We must reduce the breeding grounds of terrorism. This is, of course, not an easy task.[x]

[i] Supreme Court of India in People’s union for Civil Liberties vs. union of India, AIR 2004 SC 456, 465

[ii] Hyderabad’s Terror Attack: Speculation Swirls as Critics Point to Government Failure

By Nilanjana Bhowmick Feb. 22, 2013available at http://world.time.com/2013/02/22/hyderabads-terror-attack-speculation-swirls-as-critics-point-to-government-failure/#ixzz2P8YZGrFd

[iii] Excerpt by Boaz Ganor, Trends in International Terrorism and Counter Terrorism, Editors: Dr. Boaz Ganor and Dr. Eitan Azani available at http://www.ict.org.il/Books/TrendsinInternationalTerrorism/tabid/282/Default.aspx

[iv] Lindsay Clutterbuck, “Law Enforcement,” in Audrey Kurth Cronin and James M Ludes (eds.), Attacking Terrorism – Elements of a Grand Strategy (washington, D.C.: Georgetown university Press, 2004), p. 141

[v] Dr. N. Manoharan, Special Laws to Counter Terrorism in India: A Reality Check available at http://www.vifindia.org/article/2012/november/20/special-laws-to-counter-terrorism-in-india-a-reality-check

[vi] Anil Kalhan et al, “Colonial Continuities: Human Rights, Terrorism and Security Laws in India,” Colombia Journal of Asian Law, Vol. 20, no. 1, 2006, p. 96.

[vii] C. Uday Bhaskar, former director of the Institute of Defence Studies and Analyses, a New Delhi-based think tank available at http://world.time.com/2013/02/22/hyderabads-terror-attack-speculation-swirls-as-critics-point-to-government-failure/#ixzz2P8Y5pFI3

[viii] N. Manoharan, Trojan Horses? Efficacy of Counter-terrorism Legislation in a Democracy Lessons from India, Manekshaw PaPer No.30 , 2011, available at http://www.claws.in/administrator/uploaded_files/1308896190MP%2030.pdf

[ix] Strong local policing, strict laws will curb terror attacks’, Tuesday, 26 February 201, available at http://www.siasat.com/english/news/strong-local-policing-strict-laws-will-curb-terror-attacks

[x] Excerpt Gijs de Vries, Trends in International Terrorism and Counter Terrorism, Editors: Dr. Boaz Ganor and Dr. Eitan Azani available at http://www.ict.org.il/Books/TrendsinInternationalTerrorism/tabid/282/Default.aspx