LEAHY LAW AND AI REPORT ON NIGERIA: DISTICTION AND PROPORTIONALITY IN THE ANTI TERROR OPERATION

Author: Elias Offor

A horrendous crime against humanity being committed daily by the Boko Haram terror group where casualty figures are quoted to near accuracy- a replication of what used to happen in distant lands that looked peculiar to a particular people and sounded like mere myths to the rest of us in a way that the mind is less troubled- is now a practical reality in our midst. Yet the horror and mind-bugling impact continues to recede to the extent, a mere tale of woe which in Shakespeare terms, are all sound and fury signifying nothing.   Continue reading

Advertisements

Terrorism: Victims Beyond Borders

Written by Lina Laurinaviciute

terrorism attacks“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.”[1] Continue reading

Russian Organized Crime and its Trajectories

This month,  Dr. Serguei Chloukhine sits down with A CONTRARIO to discuss Russian organized crime and its impact on society. Professor Serguei Cheloukhine, is a Professor in the Department of Law, Police Science and Criminal Justice at John Jay College in New York, USA. He is the author of many articles and books on Russian organized crime, including:  Russian Organized Corruption Networks and their International Trajectories (2011). Continue reading

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.

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.

Counter Terrorism : A Democratic Dilemma

Image

 Photo credit:www.picdesi.com

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

The ‘War’ against Terrorism: Time now to Change our Paradigm

By Ronald Rogo (rogo.ronald@gmail.com)

Introduction

In October 2011Operation Linda Nchi (Kiswahili for “Protect the Country”) was launched by the Kenya Defence Forces (KDF). Operation Linda Nchi was the code name for the military incursion into southern Somalia. The ostensible goal of the military adventures was to crash and hopefully eliminate the threat posed by the Al Shabaab, a terrorist organization operating in Somalia and with reported links to the Al Qaeda terror group. The immediate cause of this unusual turn of events[1] was the kidnapping of two Spanish aid workers working with the Médecins Sans Frontières, an international humanitarian organization, from the Dadaab refugee camp in Northern Kenya. It was alleged that this kidnapping was planned and executed by the Al Shabaab. Although the military incursion in response to the kidnappings did not have an exit date it was apparent from the various press statements by the KDF spokesperson that their immediate goal was to capture the port town of Kismayu. With this it was hoped that the Al Shabaab’s main source of funds and supplies would be cut off and the organization would be crippled. Incidentally, with this military incursion, Kenya joined a growing list of countries that have used the war against terrorism as justification for waging war outside their borders[2].

The initial reports from the government of Kenya were that the incursion was made at the invitation of the Transitional Federal Government of Somalia (TFG)[3]. However, subsequent reports brought into doubt whether there was active, or even passive, concurrence of the TFG as initially reported and the Kenyan government was forced to engage in hurried face saving diplomatic overdrive measures. Later, the KDF operation was merged with the African Union operation. Financial and material support was also obtained from the United States of America and the European Union among others.

This article will analyze the legal basis for this “war” against terrorism initially started by the KDF. The main thrust of the article is that the war paradigm cannot be used as justification for a “war” against terrorism as it does not fit into the many legal categories of war. Instead, nations need to come up with another perspective when confronting terrorism that will both be tenable and legally justifiable. Operation Linda Nchi will be used as the case study. The incursion of Kenya into Somalia will be the case study.

The Law of Wars

International humanitarian law (IHL) is the branch of law that governs and guides the relations between states that are in a state of war. It is more commonly described as the law of war. As a result, IHL not only stipulates when nations can justifiably go to war (jus ad bellum) but it also governs the conduct of the parties to the conflict when the state of conflict continues (jus in bello). For example, IHL states what types of targets are justifiable and also the amount and type of force that can be used by the parties in order to disarm the adversary. In this regard, the Geneva Conventions[4], to which Kenya is a signatory, are almost universally accepted as the source of these regulations. The Hague Convention is also recognized as a source of IHL, albeit to a smaller extent.

What “War” Against Terrorists ?

It is difficult to acceptably define the term war. Instead, the legal equivalent term of “armed conflict” is usually used in most legal texts. An armed conflict is seen to arise whenever there is “any difference arising between two States and leading to the intervention of members of the armed forces”. This definition presupposes that there are two sides to the conflict who engage in arms in order to resolve their conflict. There is usually a state of armed conflict between two parties. In addition, the traditional view has been that war is generally an international armed conflict that takes place between two nation states, each trying to assert its will on the other. However, as we shall see later, with the increase in the number and intensity of civil wars there has been recognition that there could be a non international armed conflict that occurs between one group and the governing entity.

Based on the above it is doubtful whether one could legally engage in an armed conflict with terrorists. Whereas it is correct that the armed forces of a particular state could be deployed to hunt out, capture and kill terrorists, such as the KDF has done in Somalia, the terrorists do not, in turn, have an armed force that could then result in an armed conflict. In reality any “war” against terrorists does not have the typical ingredients of a battlefield clash; be it in the air, on the land or over the waters. Since terrorists engage in their criminal activities under the cover of ordinary daily occurrences, it is unrealistic to expect them to engage directly with a country’s armed forces. Instead, depending on the particular modus operandi of the particular terrorist organization one would expect that they would attempt to mingle with innocent civilians.

Under IHL the “members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities”[5]. As combatants, the members of any armed forces can therefore be legitimately targeted by the enemy and either be killed or disarmed. This right includes the right to target and kill them even when they are not aware that they are being targeted, so long as the state of warfare continues and so long as the all the other precautionary measures have been considered[6]. However, in relation to anyone who is not a member of the armed forces of a Party remains a civilian and ought therefore not to be targeted in a state of war. Consequently, since the members of the Al Shabaab are not members of the armed forces of Somalia (or do not even pretend to represent the forces of Somalia), they will always, under the prism of law, be seen as civilians. The only time they can be legitimately targeted is when they directly engage in hostilities and therefore lose the cover of protection of the law. Thus any killings, even in a supposed state of warfare, are justifiable on condition that one can prove that the terrorists were directly participating in hostilities during the state of armed conflict.

In addition it is difficult to see how the Kenyan “war” against terrorism fits into any of the currently recognized categories of armed conflicts. These categories are international armed conflicts or non international armed conflicts. Let me analyze these further.

(i) International Armed Conflicts

Common Article 2(1) of the 1949 Geneva Conventions is the one that is used to guide the conduct of international armed conflicts. The Article provides as follows:

“the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.

While there is no general legal definition for an “international armed conflict” the International Criminal Court (ICC) ruled in the Lubanga case that an armed conflict is of an international character if “it takes place between two or more States”. The court further held that an international armed conflict also “this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance.”[7] Again, the ICC in the Bemba decision, held that “an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State”[8].

Concerning the concept of international armed conflict, the International Committee of the Red Cross (ICRC) commentary on Common Article 2 of the 1949 Geneva Conventions adds:

Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims[9].

Based on the above it is impossible to characterize the KDF’s invasion of Somalia as an international armed conflict. This is because the two protagonists are not two states, rather a state (KDF) on one hand and a terrorist group (Al Shabaab) on the other hand.

(ii) Non-international Armed Conflict

This categorization was included in recognition of the reality that increasingly more conflicts occur and more deaths occur by reason of conflicts within the nation’s borders rather than by cross border conflicts. Thus according to Common Article 3, the armed conflict not of an international character must occur within the territory of the State[10]. The Additional Protocol II[11], (hereinafter “Additional Protocol II”) in supplementing and further expanding the Common Article 3 also provides as follows:

This Protocol […] shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

In order for an internal conflict to be qualified as a non international armed conflict and therefore to be covered by IHL there are certain necessary ingredients that must be met. The main one is that the threshold of the conflict must exceed that of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

Article 3 common to the Geneva Conventions of 1949 provides that “this Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts”. In applying this provision the ICTY Appeals Chamber decision in the Tadic case held as follows:

“an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there[12]

On the question as to whether a group qualifies as an organized armed group the Akayesu decision held that “[t]he term ‘armed conflict’ in itself suggests the existence of hostilities between armed forces organized to a greater or lesser extent. This consequently rules out situations of internal disturbances and tensions”. Further in the Lubanga decision, while setting out the characteristics of a non international armed conflict the court held that one should consider “the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement”[13]

However, there are still plenty of difficulties with such an assessment in relation to the KDF military adventure. Firstly, in order for a conflict to be characterized as a non international armed conflict, it must “take place in the territory of a High Contracting Party”[14]. This means that the theatre of the conflict should have been in Kenya, not Somalia. While the TFG could make the argument that when it combats Al Shabaab it is engaging in a non international armed conflict, the KDF cannot. Again, it was important to show that the Al Shabaab is “under responsible command, (and that it) exercise(s) such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol[15]. Significantly, the KDF operation cannot meet the requirements of a non international armed conflict on this score too. Apart from repeated isolated attacks in Kenya it cannot be said that the Al Shabaab controlled a part (or any part of Kenya) of Kenya as at the time of the invasion. Further, the KDF has not engaged militarily with any Al Shabaab terrorist groups within Kenya. Lastly, the law requires the military operations of the armed group to be “sustained and concerted”. Although the Al Shabaab has conducted raids on Kenyan soil, it would be a stretch to characterize them as either sustained or concerted.

Conclusion

From the above, it is evident that the use of a war paradigm when describing the invasion in Somalia is tenuous. There is therefore need to rethink the label used. It has been suggested before that any attack by terrorist groups ought to be considered as criminal activities that require police response-even militarized police response-rather than acts of war that require full scale utilization of a nation’s armed forces. In the American case of Holiday Inns, Inc. v. Aetna Ins. Co.[16], the court stated that “The international law definition of war refers to and includes only hostilities carried on by entities that constitute governments at least de facto in character”. Stacie Gorman also stated as follows:

“terrorists are criminals, and not soldiers of war… The practice of trying terrorists in a court of law suggests that the United States has, in the past, recognized that it is limited in its ability to declare war against terrorist groups”[17]

It is my view there was no armed conflict between the KDF and the Al Shabaab. Although it is correct that the Al Shabaab leadership leadership had declared war upon the nation of Kenya and the KDF had done the same in relation to the Al Shabaab these declarations, by themselves, did not mean that a state of armed conflict existed under IHL. Rhetoric does not give rise to a state of armed conflict. Conversely, the lack of any war declarations does not, ipso facto, mean that there is no armed conflict already in existence. It is therefore important for more police action-rather than military activity-to be involved in this “war” against terrorists in the region. The former is not only more efficient as a tool but also legally congruent.


[1]The Kenyan Defence Forces is, by common accord of military observers, the most inexperienced in the region. In a region that is largely known for its perennial conflicts and instability, the KDF is probably the only army in the region that has not engaged in active cross border warfare. Even highly provocative actions such as Uganda’s incursion into Kenyan borders in the Migingo Islands on Lake Victoria, have had mild responses from the Commander in Chief. Further, while neighboring states such as Ethiopia and Uganda have shown an appetite to engage the Al Shabaab in military warfare, the Kenyan government has been reluctant to directly follow this path. Hence, unsurprisingly, the extended disbelief and cynical views in the region when Operation Linda Nchi was launched by the KDF

[2] The United States of America is known for its “war” against terrorism when it invaded Afghanistan in order to rid the country of Al Qaeda elements soon after the September 11 bombings on the World Trade Center in New York. See President Bush’s address to a joint session of Congress on 20th September 2001 where he stated that “Our war on terror begins with Al Qaida, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated” (available at http://middleeast.about.com/od/usmideastpolicy/a/bush-war-on-terror-speech.htm-).

[3] See press statement by the Ministry of Foreign Affairs of Kenya.

[4] This consists of four treaties and two protocols dealing with the treatment of victims of war. These are the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1864, the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1906, the Third Geneva Convention relative to the Treatment of Prisoners of War, 1929 and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949. It also includes the Additional Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts and Additional Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts.

[5] Article 43(2) of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of victims of International Armed conflicts (Protocol I), 8 June 1977 (hereafter referred in the text as AP I)

[6] These precautions include only targeting combatants and military objectives, not causing superfluous and unnecessary injury, taking into account all precautionary measures

[7] Pre-Trial Chamber I, Prosecutor vs Lubanga, ICC-01/04-01/06-803-ten, para. 209

[8] Pre-Trial Chamber II, Prosecutor vs Bemba, ICC-01/05-01/08, 15 June 2009, para.223

[9] J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, (ICRC, 1958), p.20. The convention mentioned is further referred to as the “Fourth Geneva Convention”, see UNTS, vol. 75, p.287

[10] The Article reads as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (…)”.

[11] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977

[12] ICTY, Prosecutor v Tadic, Case No. IT-94-1, “Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction”, 2 October 1995, para.70.

[13] Trial Chamber II, Prosecutor vs Lubanga, ICC-01/04-01/06 Date: 15 June 20009, para. 536

[14] Article 1 of AP II

[15] Ibid

[16] 571 F. Supp. 1460, 1461 (S.D.N.Y. 1983)

[17] 20 In the Wake of Tragedy: The Citizens Cry Out for War, but Can the United States Legally Declare War on Terrorism?, 21 Penn St. Int’l L. Rev. 669 2002-2003