As the international coalition against terrorism evolves, there is going to be a renewed interest in evolving some international convention on terrorism – a goal which has so far evaded the international community, despite there being many treaties dealing with specific acts of terrorism like hijacking and the taking of hostages. As the world focuses on terrorism, it is tending to ignore a basic principle of international law – that of the right of self-determination. Yet, the international community needs to realise that while the principle of self-determination may have lost its allure in the post-decolonisation era, it still remains a peremptory norm of international law (jus cogens). This norm (of self-determination) is not only a part of customary international law but is also enshrined as one of the principles of the UN as laid out in its Charter. Self-determination is seen within the context of people fighting against colonialism, foreign occupation and to enforce international commitments made to them by the United Nations. The strength of the self-determination norm is such that international conventions dealing with terrorism have always acknowledged and distinguished between struggles for self-determination and acts of terrorism. For instance, the International Convention against the taking of hostages (came into force June 1983) clearly states that the Convention “shall not apply to an act of hostage-taking committed in the course of armed conflicts … in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on principles of International Law…”(Article 12).
In a similar vein, the Convention on Terrorism adopted by the OIC, in 1999, also confirms “the legitimacy of the rights of peoples to struggle against foreign occupation and colonialist and racist regimes by all means, including armed struggle to liberate their territories in compliance with the purposes and principles of the Charter and resolutions of the United Nations”(preamble).
In fact, within the present system of international law, norms and principles of international relations, no international treaty can be valid which contradicts prevailing peremptory norms of international law. This has been most clearly enshrined in the Vienna Convention on the Law of Treaties (1969), which states: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purpose of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
The reason for stressing the international legal position relating to self-determination struggles is that there is a growing trend to undermine the validity of such struggles or, worse still, to try and bring them into the ambit of anti-terrorist actions. While international politics may well be primarily a case of “might is right”, nevertheless states need to point out the legality or otherwise of the action of other states. Civil societies in different states also need to know the legality or otherwise of their countries’ actions. At present, there is also the imperative to understand the centrality of the principle of self-determination to international law because given the present anti-terrorist coalition that is building up, the moves for an international convention on terrorism are going to reach a conclusion much sooner than would otherwise have been possible. The UN is presently studying a number of drafts on terrorism, including the one adopted by the OIC, which has been presented on behalf of the OIC. There is also an Indian draft, which in its present form would be invalid in terms of the Vienna Convention on the Law of Treaties since it does not distinguish the principle of self-determination. Unless the norm of self-determination is preserved, the fight against terrorism will become devoid of international legality.
While most legitimate struggles for self-determination have sometimes had to resort to violence against civilians – a violence that is accepted as legitimate within international law as illustrated above – the Kashmiri struggle for self-determination is unique in that the Kashmiri mujahideen have focused their military struggle primarily against military targets and those representing the Indian state. Efforts by India to link the Kashmiri mujahideen struggle to acts of violence against civilians has failed and in the end it is the Indian forces and the renegade groups they support who have been identified as the real culprits.
For instance, the massacre of 35 Sikhs in Chittisinghpora in March 2000 was initially blamed on the mujahideen but the charge could not stick after a judicial inquiry instituted in November 2000. The report was not made public despite pressure from Amnesty International and the general assessment was that it was an act instigated by India to try and undermine the Kashmiri struggle. Again, the reports submitted in November 2000 by Justice S R Pandian and General J R Mukherjee following their inquiries regarding the killings in Barkpora in April 2000 and the massacre of Amarnath Yatris in August 2000, concluded that the killings were due to unprovoked firing by personnel of the Indian Central Reserve Police Force and the Special Task Force. The mujahideen attack on Delhi’s Red Fort was also in line with the principle of attacking the enemy’s military targets. Earlier this year, in February, five protesting villagers were killed by the Indian security forces in Hygam, Srinagar. They were protesting and demanding the return of the body of a local killed in police custody. The DIG of police, Baramulla, is on record as having regretted the killing and having said that a murder case had been registered against the Indian army. This is not to say that the struggle has over the years seen no civilian casualty as a result of mujahideen action – but the mujahideen strategy and tactics have so far been directed only at Indian state targets in general and the security forces in particular.
Unfortunately, the Indian state has not been so careful and has conducted a campaign of state terror in Occupied Kashmir. Which brings up the whole issue of defining terrorism to include state terrorism. At a very basic level if one refers to political terror – to distinguish it from pathological terror – as “the use or threat of use of violence against small numbers to put large numbers in fear” (the victim and target being distinguished and the former being symbolic) so that fear is manipulated and terror is used to affect political behaviour, then many states are guilty of indulging in terrorism. Whether it is the use of rape as a weapon of war by the Indian state in Occupied Kashmir or bombing civilians in states whose leaders are considered “rogues”, in order to terrorise them into removing those leaders, these are acts of state terrorism that must be dealt with in any all-encompassing convention on terrorism. After all, if terrorism is to be fought comprehensively, then all acts of terror must be condemned. Terrorism cannot be fought with retaliatory terrorism. The present international coalition against terrorism with its diverse components can and should be strengthened to deal with the whole spectrum of terrorism – be it sub-national, transnational or state terrorism. That is the only way for the international community to make a meaningful start to its fight against this menace.
Equally important is the issue of looking at the causes of political terror. What drives states, individuals and groups to commit acts of terrorism in which so many innocent civilians are killed. The hatred, discrimination, anger and frustrations that engulf the world today need to be focused on at least as much as missile defence which cannot defend against the real threats facing states today. Globalisation has a negative fallout at multiple levels and this has to be understood and addressed.
Finally, the fight against terrorism also has to deal with the issue of harbouring terrorists. This requires a major rethink by the developed world of its asylum policies where many wanted terrorists from developing countries are sheltered under the guise of political asylum. There has to be one standard for all and there can be no distinction between terrorists who are “kosher” and those who are not.
At the end of the day, the problem of terrorism highlights the dilemma of states today – especially the powerful ones: The choice of observing international norms or of opting for political expediency. Power has tended to undermine respect for international law and the norms it puts forward. Now the limitations of that power are clearly visible. We need to develop a new respect for international law, which has evolved out of human experience, and the bitter lessons humankind learnt over the centuries.