Sub Theme: Terrorism and Criminal Law
Satrajeet Sen & Sri Hari Mangalam
The world faces a cataclysmic crisis of terrorism that threatens to annihilate the global citizens, and the survival of the world hinges on a thin line, which, once crossed, could lead to the global apocalypse. Terrorism is one such extremely complicated issue due to its varied ideologies, origin, and motivations. The impact of terror has multiplied in the modern age of globalization, where the world is without borders, and there is no barrier to communication. The international community must take into account the human rights laws while implementing their respective obligations under UN Security Council Resolutions 1373 and 1456. There are a large number of loopholes in the international legal framework concerning the jurisdictional issue, lack of an international tribunal for the trial of terrorism offenses, and vagueness of the elements of a crime of terrorism under international law.
The Indian subcontinent, however, is the epicenter of terrorism with Pakistan acting as the fulcrum of the large lever. We live in a region, which can be said to be host to the "Ivy League of Terrorism." India has been combating terror organizations ever since the attainment of independence. The status quo is unlikely to change in the coming future. The post 9/11 era has seen a 'War against Global Terrorism,' which appears to have a rejuvenated determination to counter the challenges posed by terror in all manifestations. In the earlier stages of the fight against terrorism, acts of terror were seen as general law and order issues, as a result of which, investigation and prosecution followed the penal provisions incorporated in major criminal laws of the country such as IPC, Indian Arms Act. In contrast, the provisions of the Criminal Procedure Code were followed in case of the procedure. However, the urgency of specialized enactments on terrorism was observed. The first two anti-terror legislations, TADA and POTA, were repealed primarily for the lack of national will on dealing with terror and political expediency. It is necessary to study legal issues about the misuse of TADA and POTA, the current legal framework at the domestic and international level, and the recent amendment to the UAPA, which denies fundamental human rights in a world where Rule of Law is indispensable. There is a need for specific and stringent legislation, incorporating unique judicial process that respects the principles of the rule of law and human rights, to add the ‘bite’ to India’s war against terror. This kind of criminal justice response to terrorism can also help avoid or mitigate the risk of unreasonable and unlawful use of force outside the protections and procedural guarantees offered by the due process of law. If a country is to tackle the evil menace of terrorism, national security must always get overall precedence considerations. However, respect for human rights and the rule of law are two crucial things that must always be kept in mind in the 'fight against terror.'
We live in a century, which has seen the emergence of new forms of crimes, ranging from cyber-crime to organ trafficking. The one crime which has remained constant over the years is 'terrorism.' 'Terrorism' cannot be said to be confined only within the walls of a 'crime.' It is a Satanic notion, existing in different forms around the world and covering an expansive culture of ideologies, while also providing a platform for individual motivation. The dark world of terrorism, in the 21st Century, is manipulating the productive advancement of Science and Technology to its benefit by using mechanisms like cryptocurrency, blockchain technology, and the unexplored, dark web for its operations, without being noticed. The present situation in the Middle East and North Africa (MENA), Indian subcontinent, North Korea, and practically, almost the entire world, reminds us of the tumultuous times of the 'Reign of Terror' during the French Revolution. The unanimous consensus on the constituents of terrorism is, missing due to the significant socio-cultural differences in the world. However, the generally agreed upon idea is to see it as a medium of coercion that threatens and utilizes violence for the achievement of fundamental goals. It is distinguished from ordinary violence in law through the comprehension of a 'terrorist- triangle' where civilians, law enforcement, and military, as well as the State, are equally, through direct or indirect mechanisms, targeted. Even though the widespread use of the term comes from the period of the 'French revolution,' the idea of terror dates much further back. Organizations and even legitimate states use the mediums of terrors as tools for the achievement of their respective policy goals and political objectives.
In this context, the paper attempts to focus on the anti-terrorism infrastructure in the Indian and international legal context and suggest specific recommendations and modifications to the existing legal framework. The paper is arranged as follows. In Part II, the paper analyzes the interpretation of the crime of terrorism in international law, with the primary focal point on the limitations of the existing framework, supported with the help of a case study of the Lockerbie dispute. Then, in part III, the Indian criminal law jurisprudence on terrorism from the misuse of the repealed legislation on terror to the Unlawful Activities Prevention Act (UAPA) is outlined. After that, in Part IV, the loopholes in the 2019 UAPA Amendment, concerning the human rights and liberty of citizens, are critically scrutinized. Thereafter, part V concludes with some useful recommendations to create a legal infrastructure in India, which shall focus on national security, along with the Rule of Law and human rights.
The International legal framework on terrorism
The Appeals Chamber of the Special Tribunal for Lebanon(STL) in its Interlocutory Decision on February 16, 2011 recognized the emergence of the heinous crime of ‘international terrorism’ under customary international law due to UN resolutions and judicial practice of states. It was instrumental in providing for the definition of a crime of 'terrorism' in its Statute. The three primary characteristics of the definition of the crime of terrorism are the occurrence of any criminal act, intention to spread fear, and having a political purpose. The definition of the Appeals Chamber at least rejects the majoritarian view in the literature that there is no unanimous agreement on the definition of terrorism.
However, the elements of the definition of the crime of terrorism given by the Appeals Chamber are quite ambiguous and vague, thus making it difficult to comply with the lex certa requirement under customary international law. The first criterion of an internationally agreed definition is, however, fulfilled since this definition is accepted as a common opinio juris for times of peace. Since terrorism is accepted as a threat to universal values, the second criterion is also fulfilled. The primary issue is with the third criterion, the most crucial of the three. The internationalization of a domestic offense requires States and intergovernmental organizations to clearly express the view that the international community considers the offense as amounting to an international crime. An explicit declaration with regards to the crime of terrorism is, however, missing. The fact that the offense of terrorism is not included in the ICC Statute despite its inclusion in the draft code, along with the failure to adopt a comprehensive convention on terrorism is clear evidence of the harsh truth that terrorism is not yet recognized as an international crime.
The Appeals Chamber provides that terrorism is a part of suppression conventions that only 'request' and 'urge' States to implement the obligations. Terrorism, in simple words, is a 'special' transnational offense that can only come close to an international crime. Since terrorism fulfills the first two criteria of the three-pronged 'international crime test' but not the third criterion, it has not yet reached the level of an 'international crime Thus, the lack of international recognition of terrorism as an international crime has paved the way for military intervention by US forces in the Middle East on the ground of 'war on terror.' Fanciful expressions such as 'war on terror' are thus no more than rhetorical content. They can be used by States like the US and Russian Federation to intervene in vulnerable countries and infringe upon the human rights of civilians of these countries.
International terrorism, supported by States, is a form of prohibited use of force, regulated by the UN Charter and Customary International Law. An act of terror, attributed to a State, is enough to bring it under the purview of Article 2(4) of the UN Charter,and breach of prohibited use of force under customary international law as recognized by the UN Declaration on Friendly Relations. Any form of military or financial assistance by the State for acts of non-state actors also amounts to prohibited use of force and in contravention of the principle of non-intervention. There is an obligation on States, under customary international law, ‘to not allow their territories to be used for acts contrary to the rights of other States’. This customary law obligation of States has been codified in the Terrorism Suppression Conventions (TSCs) and is subject to due diligence standard.
Several institutional developments have consolidated the human rights infrastructure for the implementation of International Human Rights Law in counter-terrorism operations. A significant initiative was the creation of a 'Special Rapporteur on Human Rights and Terrorism', which has played a vital role in challenging certain practices and influencing human rights standard-setting. The implementation of human rights obligations has been supported by the engagements on terrorism issues by special rapporteurs, human rights bodies and working groups. Transnational judicial bodies like the International Court of Justice (ICJ), East African Court of Justice and the European Court of Justice (ECJ) have critically analyzed the lawfulness of counter-terrorism measures like extraordinary rendition, in light of international human rights law and IHL.
This section shall analyze the legality of the ‘extraordinary rendition program’ launched by the US in the years immediately following the 9/11 attacks. Extraordinary rendition paved the way for violation of human rights, solely in the name of national security. The program undoubtedly posed innumerable challenges to international human rights organizations, lawyers, and courts. The critical principle of prohibition of transfer in cases involving a risk of ill-treatment or denial of fundamental rights and due process in the country of destination found application in the El-Masri case, the first US rendition case decided by the European Court of Human Rights (ECtHR). The Grand Chamber of the European Court, in this case, found that Macedonia had violated Article 3 of the European Convention on Human Rights (ECHR) by handing over the petitioner to the CIA, despite knowing the risk of ill-treatment. UN bodies like the Human Rights Committee and the Committee against Torture have been quite useful in recognizing the violations emanating from the rendition program of the US. The two UN committees had given the relevant decisions, with regards to the irregular transfer of two Egyptian terror suspects, who had applied for asylum in Sweden. The committees held that Sweden, having knowledge of the fact that the terror suspects would be ultimately transferred to Egypt by US agents, had violated Article 3 of the Torture Convention and Article 7 of the ICCPR, which establish the principle of prohibition of refoulment.
There is a need to analyze certain limitations of the existing international counter-terrorism legal framework, which cannot be eradicated simply with the implementation of the Draft Comprehensive Convention on Terrorism. One such limitation which needs attention is the obligation of a State to either extradite or prosecute terror suspects if the offense was not committed in the territory. However, there may be occasions when the existing mechanism under international counter-terrorism law may not be useful in the prosecution of terror suspects. This limitation in the counter-terrorism legal regime came to light by way of the international response to the bombing of a flight over Lockerbie, Scotland. The US and UK issued orders to the Libyan government to submit two Libyan suspects to either jurisdiction for effective prosecution as there was a reasonable doubt whether Libya would try the suspects because one of the suspects belonged to the Libyan Intelligence Agency. Libya refused to surrender the suspects to either jurisdiction and instead submitted its willingness to prosecute them under Article 7 of the Montreal Convention.Realizing the adamant stance of the Libyan government, the US and UK involved the UN Security Council in this issue. The Security Council adopted Resolution 731, urging Libya to extradite the two suspects. Recalcitrance on the part of the Libyan government to respond to the Resolution, amounted to a threat to international security and thus, prompted the Security Council to impose economic sanctions on Libya, under Chapter VII of the UN Charter.
Libya brought the matter before the International Court of Justice (ICJ) against the UK and US under Article 14 of the Montreal Convention, requesting the Court to issue interim orders to the US and UK, such that they do not coerce Libya to surrender the alleged offenders to either jurisdiction. The ICJ rejected Libya's requests and, instead, held that Resolution 748 took precedence over the Montreal Convention on account of Article 103 of the UN Charter. The Lockerbie Bombing case has quite a few international legal repercussions. One of them is that the obligation of a State under Article 7 of the Montreal Convention, to either prosecute or extradite, may result in disputes between States, regarding the forum for prosecution of offenses of terrorism. Diplomatic, as well as legal settlement procedures, may play a vital role in resolving such deadlocks. It was under such a provision of the Montreal Convention that Libya wanted Resolution of its dispute. However, in cases like the one under discussion, despite the harsh truth that one of the suspects belonged to the Libyan Intelligence Agency, compulsory judicial settlement as specified in the United Nations' Counter-terrorism treaties or arbitration, is unlikely to be of much help since Libya was quite willing to prosecute the suspects under the Montreal Convention. Thus, there is a need to look beyond the relevant counter-terrorism instruments, into measures such as the involvement of the Security Council, which ultimately resolved the dispute in this case.
The Lockerbie dispute was ultimately resolved through the Security Council intervention and the establishment of a Scottish court, based in the Netherlands. The creation of the Counter Terrorism Committee (CTC) by Resolution 1373 is a positive step in the direction of monitoring obligations imposed on States by the Resolution and international counter-terrorism law. Being a transparent monitoring body, the CTC can play a vital role in assessing the weaknesses prevalent in the legal framework of international counter-terrorism and assist the Security Council in disputes which may arise over prosecution and extradition.
With regards to the prosecution of terrorists in international forums, the mechanism, however, is not in practice in the present-day world. The discussion on the issue of the jurisdiction of terror offenses being vested in an international court became quite prevalent in light of the Lockerbie dispute. Some consideration was given to the possibility of inclusion of terrorism as a crime under the Rome Statute. The crime of terrorism was included in the International Law Commission’s 1994 Draft Statute for the ICC and received support from 12 States at the Rome Conference. However, the crime was not included in the Rome Statute due to the lack of a unanimous agreement on the definition of terrorism back then. There is still a possibility of invoking the jurisdiction of ICC for terrorist offenses if they can be brought under the definition of 'crimes against humanity' under Article 7 of the Rome Statute. The jurisdiction of ICC in terrorism cases can prove to be quite useful in situations where domestic courts are unwilling to hear severe cases of terrorism. The ICC could also solve the major issue of States' competing claims to assert jurisdiction like the one encountered in the Lockerbie case. The ICC, being an independent and impartial judicial institution, may also be considered to have more legitimacy in comparison to domestic courts in case of contentious cases and may thus, ensure the justice of victims and terrorists. The next section of the paper will focus on the issues in the Indian legal framework concerning terrorism, with an overview of the repealed laws.
Indian Counter-Terrorism Legal Analysis
India is geographically and theoretically situated in the region, which qualifies as the 'epicentre of Global Terrorism'. Correspondingly, India also has had the reputation of being the victim of terrorism as a State for the most prolonged period. It seems that the increasingly growing problem of terrorism will be quite challenging to eradicate. However, it does not nullify the fact that specific preventive measures, established by due process, can be taken to counter its spread.
Currently, more than 39 terror groups are operating in different pockets of the country. While a majority of them are based outside of India, many new outfits, taking advantage of the current socio-political situation, are setting up units within the country itself or are forming separate operative factions for the country. In comparison, the most potent of all terror threats that India faces is sponsored by external elements that creep into the country. The foreign elements often merge with their domestic parallels to create a reasonably vulnerable situation.
It is not that the country has not made any efforts to curb the advance of terror. Some extremely constructive steps, undoubtedly have been taken since the '90s, progressively intensifying upon the increase in global deterrence ever since 9/11. The 9/11 attacks stimulated the international community to see terrorism as an agent of Satan, which challenged the very fabric of society. This aggressive mindset towards terrorism led to the evolution of the War on Terror across the world.
New ideas were formulated for the retraction and labeling of this growing element. India formulated various legislations and organizations, in a sincere attempt to curb the rise of terror.
The country created a few consistent and effective anti-terror policies:
a) Terrorists and Disruptive Activities Act, 1985 (TADA): In the aftermath of the assassination of then Prime Minister Indira Gandhi, the government, as an attempt to establish omnibus legislation on terrorism, enacted the act. It became the first anti-terrorism law applied by the government to enable the definition and counter of terrorism in the country. The idea of the law was very generalized and did not have specific usage. It was enacted to counter national terrorist outfits and any 'socially disruptive' elements.
The legislation, however, contained specific problematic provisions being:
i) The law enforcement agencies were not under an obligation, in exception to the general rule, to bring the arrested accused before a magistrate within 24 hours.
ii) Any confessions made to the police were held enforceable and valid.
iii) There were exclusive and separate courts set up for the same purpose.
iv) The properties of the accused could be attached under the act.
v) The Burden of proof lay on the accused to prove his innocence.
The law was subjected to a great deal of criticism. More than 76000 individuals had been arrested under the act by 1994. 25% of the cases were dropped without any charges, and only 30% came up to the courts, out of which 95% of the cases resulted in acquittal. The act was eventually disbanded on account of several human rights violations ranging from an increase in the risk of torture due to extensive periods of detention (60 days) to the applicability and legality of secret trials construing an in access to impartiality. The act barred the right to appeal to any other court other than the apex authority and allowed for the skirmish of due process and constitutional guarantees. It imposed similar liability for action as for the provisions of cessation and secession.
The act was eventually repealed with the Supreme Court ruling that mere association does not impose liability.
b) The Prevention of Terrorist Act, 2002: This was the resultant direct legislation of the 2001 brazen parliament attacks. It replaced the earlier enactment of 'Prevention of Terrorism Ordinance.' In addition to the definition of terrorism, earlier convened under the TADA, the act defined who 'qualified as a terrorist' and what an ‘act of terror’ is. The provisions in this legislation, too, were regressive, allowing detention up to 180 days without the requirement of a charge sheet and the admissibility of all confessions made to police officials. However, a provision of preventive detention so inscribed under TADA was not incorporated.
The act was eventually repealed on observations of gross abuse of the law. There were accusations of misuse to target political opponents, activists, and whistle-blowers. More than 1000 arrests, including that of Vaiko, were made in the first few months of its enactment. The act eventually, on October 7, 2004, was repealed by the Union Cabinet. However, the classic element of this act is that it remains relevant and useful as the cases filed under and the pending investigations were not affected by the repealing.
All the legislations were repealed, as a result of which, there was a consequent lack of preventive terrorism law in the country. The only widely applicable legislation still governing the same subject matter is The Unlawful Activities Prevention Act (UAPA). It was initially framed in 1967. However, the stringent provisions were added in 2004, while having constructively defined a 'terrorist act' in the 2008 amendment. The amendment further assumed the accused, one of guilt, provided certain specific conditions were sufficiently qualified.
It covered the Trans-national operation of terror by classifying economic aspects, penalizing offenses committed even outside of India.
India, throughout its decade-long fight with terror, has enacted a multiplicity of legislations and subsequently repealed quite a few of them. The rise of terror has been to control to a certain extent. However, there are still quite a few prevalent factors disallowing its eradication.
The factors can be clubbed under six issues as made evident by the 2016 VIDHI survey:
a) The nature of terrorism is defined through outdated laws in a period were terrorism has advanced significantly.
b) The laws are hastily formed and significantly incoherent.
c) The misuse of TADA and POTA has not been sufficiently incorporated in the new provisions.
d) The special courts have failed in the expediating trials.
e) The undermining of civil liberties in the practice of the legislation has become the norm.
A substantial resistance in the fight against terror is an aspect under the control and administration of the State itself. The two primary factors in this fight are the procedural issues in investigation and specific aspects of prosecution.
These factors are a combination of specific deterrents as part of the legal framework. These deterrents do not allow effective administration in issues of terrorism. An excellent example of such a deterrent would be the practice of covering attacks of terror, criminal activity of extreme gravity under the codifications of the Criminal Procedure and the Indian Penal Code. The inequitable factors allow for various laws to apply to the same offense, creating confusion in the administration of justice. The irregularities allow for frequent interruptions from the different institutions- change in investigation personnel, judicial officers.
An abstract example that covers all of these factors would be the investigation and judicial pronouncement in the Akshardham case, which went through several ups and downs, both in the judicial and enforcement sphere.
The substantive outcome of such a layered procedure is inefficiency and ineffectiveness. In order for India to succeed in its war on terror, it must invalidate all of these factors and work effectively, such that they are a lot more in tune with the times and circumstances. Thus, we discuss the latest amendment to the Unlawful Activities Prevention (Amendment) Act, 2019 (UAPA), the only existing law in India dedicated to counter-terrorism.
Critical Analysis of the Unlawful Activities Prevention (Amendment) Act, 2019 (UAPA)
The 2019 amendment to the UAPA is a potentially dangerous one, which strikes at the roots of an individual's liberty. As a result of this draconian amendment, the Union Ministry will be vested with arbitrary powers to label any individual as a 'terrorist,' without following due process. The sole legal remedy available to the accused individual is to file an application before the Review Committee, which shall be constituted by the Central Government itself. The official tag of a 'terrorist' is bound to negatively affect the individual and lead to social ostracism, media harassment, and attacks by radical groups. The amendment infringes upon the right to reputation, which has been recognized as an integral part of the right to live with dignity under Article 21 of the Constitution due to the very fact that an individual is tagged as a 'terrorist' under Schedule 4 of the UAPA Act, 1967 without any trial or 'procedure established by law. The Supreme Court has held that every individual is entitled to preserve one's reputation and allowed to be heard in case his reputation is adversely affected in the course of discharge of duties by the authority. Section 35 of the amended legislation does not uphold India’s international law obligations by not abiding by the right to reputation recognized by Article 17 of the International Covenant for Civil and Political Rights.
The Hon'ble Court has also highlighted that prohibition of vesting of unrestricted power on an authority falls within the mandate of Article 14 of the Constitution, and legislation can be negated if it does not satisfy the principles of fairness, transparency, and reasonability. Because individuals linked to terrorist organizations could have been punished under the existing provisions of the UAPA, the question arises concerning the purpose of introducing the provision of branding an individual as a 'terrorist.' The Home Minister explicitly cleared the government's stance during his reply to the debate on the UAPA in Lok Sabha. Usage of vague and loose terms like possession of ‘terrorist literature’ and ‘terrorist theory’ in case of a global problem of terrorism, is highly problematic since UAPA charges can be slapped against anyone having a perspective against the government like we had seen in the case of Anand Teltumbe in the past. Labelling merely done based on certain 'anti-national' forms of expression and thoughts, contravene a catena of decisions of the Supreme Court on sedition and terrorism laws. The Supreme Court has recognized an essential principle that mere possession of jihadist or Naxal literature cannot be a ground for accusing him as a terrorist or criminal. The same principle was followed by the Supreme Court in a UAPA case involving activist Dr. Binayak Sen and was upheld by the Kerala High Court, by recognizing, freedom to hold political ideology is a part of Article 21 and granting compensation to a man, wrongfully arrested on the same grounds. The facts of the case, decided by the Kerala High Court, are very similar to how cases under the amended UAPA legislation will be decided. A person merely believed to be a terrorist, can be arrested under the UAPA, in the same way, the petitioner, who was an author, was arrested only on suspicion of being a Maoist and was searched to the extent of the absolute breach of his privacy without following the procedure enshrined in the CrPC and the D.K. Basu guidelines on arrest. Unfortunately, however, the individual, arrested on mere suspicion under the UAPA, would not be able to get redressal in a court of law. This makes the law, supplemented by the recent amendment, so draconian and harsh.
Conclusion and Recommendations
India, as well as the entire international community, has found the global issue of terrorism, quite complicated and problematic to be tackled. The rule of law and protection of human rights are two essential things that must be maintained by States in the process of implementing their anti-terrorism and security laws. Unfortunately, the UN Security Council has not explicitly issued human rights-based guidelines and orders to member States for failing to uphold their international human rights obligations in case of implementing the obligations under Resolution 1373 and 1456. The paper seeks to suggest some useful recommendations in this direction of the advancement of national security and the rule of law. The Union and State governments must firstly implement specific appropriate reforms in the criminal justice system. The focus must be primarily on creating an infrastructure for improving the investigative capacity and analytical ability of the police and intelligence agencies like the National Investigative Agency (NIA). In order to ensure functional autonomy, the prosecutorial function must be separated from the police, and they must be free from all forms of political influence. The recommendations of the National Police Commission must be taken into consideration for implementing reforms in the central and state-controlled police forces. Independent review mechanisms, constituted by senior advocates and former judges, must be established to monitor and implement the detention guidelines recommended by the National Human Rights Commission (NHRC) and the Supreme Court in the D.K. Basu case, AIR 1997 SC 610, 623.
The government should repeal or at least amend the provisions in the UAPA, which might raise human rights concerns and improve the mechanisms for accused individuals to seek redressal in an appropriate forum. In this regard, the Protection of Human Rights Act of 1993 must be implemented, with the establishment of district-level human rights courts in all states. The Counter-Terrorism Committee (CTC), established by the UN Security Council (UNSC), must explicitly require States to submit annual reports concerning the implementation of Resolutions 1373 and 1456 in their domestic laws and make public CTC’s substantive inquiries and communications with States for better transparency. The CTC must coordinate effectively with the Office of the UN High Commissioner for Human Rights (OHCHR) and the Human Rights Council to evaluate the compliance of the laws and institutions of each State with international human rights law obligations while implementing the concerned UNSC Resolutions on anti-terrorism. Thus, we feel the symbiosis of security laws and the maintenance of human rights obligations and Rule of Law can prove useful in controlling this issue of global terrorism, which has the terrible potential of leading the world to a global Apocalypse.
[The authors are second-year law students at the National University of Juridical Sciences, Kolkata.]
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Manu Sebastian, UAPA Amendment: Why Giving Govt Power To Declare Individuals ‘Terrorists’ is Problematic?,Live Law (July 27, 2019), https://www.livelaw.in/columns/uapa-amendment-individuals-terrorists-lok-sabha-problematic-146742?infinitescroll=1. State of Kerala v. Raneef, (2011) 1 SCC 784 (India).  Shyam Balakrishnan v. State of Kerala, 2015 SCC OnLine Ker 7591 (India).  The Unlawful Activities (Prevention) Act, 1967, 37 UAPA § 35(ii) (1967) (amended 2019). Shyam Balakrishnan v. State of Kerala, 2015 SCC OnLine Ker 7591 (India). The Unlawful Activities (Prevention) Act, 1967, 37 UAPA § 36(i) (1967) (amended 2019).