Mantesh Singh Dhillon & Akshat
(RGNUL, Patiala)
The credit of the picture - https://www.icrc.org/en/document/terrorism-counter-terrorism-and-international-humanitarian-law
The International Humanitarian Law (IHL) finds its applicability at the time of warfare or conflict. It is obligatory for all the parties to the warfare and the violent conflict to follow and go by the principles of the IHL. The overall means and methods of the armed conflict is overlooked by the IHL and at the same time it aims at safeguarding the lives of the innocent people, not the part of the violent conflict, and of those who no longer intend to be a part of the armed conflict, thereby mitigating the negative impact of such a conflict as much as possible.
IHL lays down guidelines with respect to the engagement of entities in an armed conflict. Attacks on recognised and just military targets even by those armed groups which are well organised and are a party to the violent struggle are allowed or so as to say not wholly prohibited for as long as they adhere to the regulations pertaining to the conduct of hostilities.
Defining Terrorism in International Law Realms
The very phenomena of ‘terrorism’ is very vaguely defined as well as categorized in the international legal framework. Therefore, there is no clear and vivid legal definition attached to this term. The same dearth of unanimity is evident in the General Assembly’s continuing discussions about the draught Comprehensive Convention on International Terrorism, which was first put forth in 1996.
In the recent developments, States have started considering any act of uproar performed by the non-State organisations in a violent conflict as an act of ‘terrorism’ despite when some of these acts being legitimate from the lenses of the IHL. This comes as a result of the concern of States considering that if any act of brutality being carried out on their soil is acknowledged by them for long, it would then lead to active involvement of the non-State organisations in their State. Thus, the end result being that the refusal by States for the inclusion of such organizational groups labelled as ‘terrorist’ from being a part of the Non-International Armed Conflict (NIAC) which is within the ambit of the IHL.
The Broad Distinction Between Legal Framework concerning IHL and Terrorism
Although there seems to be some commonality among the legal frameworks regulating both IHL and terrorism, both of these legal regimes are very different given their geneses, goals and structures.
One of the critical point of difference between the both is that, in legal sense, an armed conflict is a circumstance where on one side certain violent acts are taken up as legal while the other fall under the ambit of unlawful acts. In the case where an act is considered as a “terrorist” act, it is unlawful in its entirety. The end goal of any of the violent conflict is to triumph over its rival forces. It is for this rationale that the parties to such a conflict are allowed and thus not interdicted from achieving its military goals which may include attack on individuals not falling under the umbrella of protection against direct attacks. Brutality done towards such individuals is not addressed by the IHL no matter then if its is either inflicted by the State or a non-State entity. On the contrary, acts of uproar against civilians and related entities are very much addressed by the IHL and are thus considered unlawful. One of the prime objectives of the IHL is to protect the innocent people from the impact of hostilities being carried out. Hence, IHL governs and supervises both legal as well as unlawful acts of hostilities.
The rules controlling terrorism do not have such a duality. Any conduct that is officially categorized as “terrorist,” either within national or international law, must always be punished as a crime. Therefore, no act of violence that is officially labelled as “terrorist” is or may be protected from punishment.
IHL in Context of Counter Terrorism
Counter Terrorism overlaps with the mechanism of IHL in the situation when there happens to be an armed conflict between the State and a non-State military group labelled as a ‘terrorist’ and when the aggression is severe enough and the unit is well-organized enough. If both these benchmarks are met then such act of warfare would qualify as NIAC within IHL rendering IHL regulations enforceable. As discussed earlier, States dispute the possibility of non-State armed groups labelled as “terrorists” as parties to NIAC, although this tendency is gradually changing as States recognise the value of IHL in their counterterrorism efforts.
The Dubious term ‘Support’
There is no denying that States must bring the individuals aiding the terrorist activities to justice however, a wider understanding of the term “support” may bring some of the acts performed on humanitarian grounds under the ambit of aiding terrorist acts and organisations. The term was further expounded in the American case of Holder v. Humanitarian Law Project. Among the kinds of “support” contemplated included training, the provision of services or personnel and assistance or expert opinion.
IHL stipulates that injured must be rescued and catered for, medical staff must be safeguarded and given all assistance necessary to carry out their tasks, and no one may be penalized for engaging in medical activity that complies with medical ethics, regardless of who gains from it.
Despite the fact that States were expected by Security Council Resolution 1373, which was passed in the wake of the September 11 strikes, to ensure that those who assist in assisting terrorist acts are prosecuted, it did not mandate that they include humanitarian exceptions in their domestic legislation. The decision was left up to each State.
Congruence-Supporting Developments India Must Take into Account
As it is quite evident that counter-terrorism in itself can be challenging for IHL. However, it is also necessary that the States must take up the measures as per the international law particularly as per IHL. India’s approach towards counter terrorism must also go according to the obligations under IHL.
In this regard, General Assembly Resolution 72/284 and Security Council Resolution 2482 are of most importance. The former makes sure that the member States, when taking up counter terrorism measures and policies, must comply with the regulations of the international law, especially IHL. It also states that to make sure that anti-terrorist laws and policies do not obstruct the provision of medical care, cooperation with all pertinent parties, or other activities protected by IHL. On the same note, the Resolution 2482 necessitates the State to take counter-terrorism actions as per the obligations under IHL and asks States to consider how counter-terrorism efforts can affect solely humanitarian actions taken out by unbiased humanitarian actors in a way that complies with IHL. It is also important to note the Special Rapporteur’s report to the UN Human Rights Council, which emphasises the importance of humanitarian exemptions in protecting civil society actors from counterterrorism measures and supports the idea that States should clearly exempt humanitarian actions from their counterterrorism initiatives.
India’s Controversial Unlawful Activities (Prevention) Act
The potential effect of national legislation of India on counter-terrorism, i.e. the Unlawful Activities (Prevention) Act, 1967, is quite controversial with respect to the regulations of the IHL. Section 39 of the said legislation deals with the offences relating to the ‘support’ given to terrorist groups. However, neither the definition of “support” nor any “exemption”, that would make it clear that humanitarian aid should not be construed as assistance for terrorist organisations, are included in the clause.
The Apex Court had the chance of interpreting the term ‘support’ in the case of Thwaha Fasal v. Union of India. It was stated that even though accused participated in the activities listed in the section, the accused may only be convicted if the actions were “done with intention to enhance the activities of a terrorist organisation” (para 13). The Court did not, however, elucidated the expression “support”. Therefore, the judgement doesn't really give room for humanitarian assistance. A humanitarian exception that explicitly precludes humanitarian operations from being viewed as "support" for terrorist organisations or their activities would be a preferable approach to bring the UAPA into compliance with IHL.
Conclusion
It is challenging to interpret actions that would qualify as “support” for terrorists and terrorist groups because there is no uniformity on the legal definitions of “terrorist” and "terrorism”. India has the chance to set the bar high by ensuring that the IHL principles are adhered to in its counterterrorism legislation. She must urge adherence to the IHL regime when there is an overlap with anti-terrorism rules as she gets ready to head the conversation on the international counter terrorism framework and norms.