TERRORISMTERRORISM

“Kill one, frighten ten thousand.”“Kill one, frighten ten thousand.” Sun TzuSun Tzu

Mian Ali HaiderMian Ali HaiderL.L.B.,L.L.M(L.L.B.,L.L.M(Cum Laude)Cum Laude)

U.K.U.K.

How has Terrorism been How has Terrorism been Defined?Defined? US Department of Defence: “The calculated use US Department of Defence: “The calculated use

of violence or the threat of violence to inculcate of violence or the threat of violence to inculcate fear intended to coerce or intimidate fear intended to coerce or intimidate governments or societies in the pursuit of goals governments or societies in the pursuit of goals that are generally political, religious, or that are generally political, religious, or ideological”ideological”

Home Office proposal: “serious violence against Home Office proposal: “serious violence against persons or property, or the threat to use such persons or property, or the threat to use such violence … for political, religious or ideological violence … for political, religious or ideological ends” (including damage against property)ends” (including damage against property)

Walter Laqueur: “Terrorism constitutes the Walter Laqueur: “Terrorism constitutes the illegitimate use of force to achieve a political illegitimate use of force to achieve a political objective when innocent people are targeted”objective when innocent people are targeted”

Basic ConceptsBasic Concepts““Courage is not the absence of fear, but being Courage is not the absence of fear, but being able to do what is right in the presence of it.”able to do what is right in the presence of it.”

TERRORISM DEFINEDTERRORISM DEFINED“The unlawful use of force against persons or “The unlawful use of force against persons or

property to intimidate or coerce a government, property to intimidate or coerce a government, civilian population, or any segment thereof, in civilian population, or any segment thereof, in

the furtherance of political or social objectives.”the furtherance of political or social objectives.”

The three common elementsThe three common elementsof terrorist acts:of terrorist acts:

Illegal use of forceIllegal use of force Intended to Intended to

intimidate or coerceintimidate or coerce Support of political/Support of political/

socialsocial objectivesobjectives

Government facilities Government facilities Public assembly Public assembly

buildingsbuildings Mass transit systemsMass transit systems Telecommunications Telecommunications Symbolic SitesSymbolic Sites

POTENTIAL TARGETSPOTENTIAL TARGETS

Problems of DefinitionProblems of Definition CoreCore: “The use or the threat of the use of violence in : “The use or the threat of the use of violence in

order to achieve political aims”order to achieve political aims” Are terrorists only Are terrorists only non-state groups?non-state groups?

– authoritarian regimes using methods; state authoritarian regimes using methods; state sponsorshipsponsorship

– Is it legitimate for states to violence without moral Is it legitimate for states to violence without moral restraint? restraint?

Non-combatantsNon-combatants: is targeting non-combatants : is targeting non-combatants legitimate ?legitimate ?– Hamas tries to justify targeting Israeli civilians Hamas tries to justify targeting Israeli civilians

because they are all ‘conscripts’…because they are all ‘conscripts’… ThreatsThreats: do threats alone terrorise?: do threats alone terrorise? ““Terrorists want a lot of people watching, but not a lot Terrorists want a lot of people watching, but not a lot

of people dead” (B. Jenkins)of people dead” (B. Jenkins)– True of left-wing terrorism, it was not of right-wing True of left-wing terrorism, it was not of right-wing

terrorism, and ‘religious’ terrorismterrorism, and ‘religious’ terrorism– Visibility is a key aim of political impact, and use of Visibility is a key aim of political impact, and use of

fear fear

Terrorism and Ideology…Terrorism and Ideology… Conceptual difficultiesConceptual difficulties

– Guelke: definition has become so elastic it can include Guelke: definition has become so elastic it can include anything…anything…

– Who defines what legitimate violence is, and using Who defines what legitimate violence is, and using what criteria?what criteria?

Political ManipulationPolitical Manipulation The label terrorist makes a political group The label terrorist makes a political group

illegitimate and an acceptable target for violent illegitimate and an acceptable target for violent repressionrepression– Nelson Mandela’s ANC was labelled terroristNelson Mandela’s ANC was labelled terrorist

A freedom fighter can later be a terroristA freedom fighter can later be a terrorist– E.g. Bin Laden – Afghan resistance to USSR vs. al-E.g. Bin Laden – Afghan resistance to USSR vs. al-

QaedaQaeda Most states secured their existence using terrorist Most states secured their existence using terrorist

means at some point! E.g. Decolonisation…means at some point! E.g. Decolonisation…

Terrorist movements in Terrorist movements in recent historyrecent history

Left-wing groupsLeft-wing groups: Red Army Faction (Germany), : Red Army Faction (Germany), Red Brigades (Italy), Action Directe (France), Red Brigades (Italy), Action Directe (France), Japanese Red Army (Japan), Revolutionary Japanese Red Army (Japan), Revolutionary Armed Forces of Colombia (FARC, Colombia)Armed Forces of Colombia (FARC, Colombia)

Right-wing groupsRight-wing groups: Ku Klux Klan, Aryan Nations, : Ku Klux Klan, Aryan Nations, The Order (USA), Combat 18 (UK) The Order (USA), Combat 18 (UK)

Some groups are better defined by Some groups are better defined by the the territorial disputesterritorial disputes they are engaged in: PLO they are engaged in: PLO (1970s), Popular Front for the Liberation of (1970s), Popular Front for the Liberation of Palestine vs. Kach and Kahane Chai (Israel and Palestine vs. Kach and Kahane Chai (Israel and United States), or IRA/PIRA vs. Ulster Volunteer United States), or IRA/PIRA vs. Ulster Volunteer Force, Ulster Defence Association, LTTE (Sri Force, Ulster Defence Association, LTTE (Sri Lanka)Lanka)

Traditional Responses to Traditional Responses to Terrorism ITerrorism I

Security/IntelligenceSecurity/Intelligence: : police and security organisations - police and security organisations -

– infiltrate organisations to gather intelligence infiltrate organisations to gather intelligence – infiltrate and monitor related non-violent infiltrate and monitor related non-violent

organisationsorganisations– intercepting communications & mass surveillanceintercepting communications & mass surveillance

‘‘target hardening’: making state objectives target hardening’: making state objectives harder to hitharder to hit– usually results in targeting of ‘soft’ objectives…usually results in targeting of ‘soft’ objectives…

‘‘hard line’: often first phase of state hard line’: often first phase of state response, with security forces legally/illegally response, with security forces legally/illegally using means of violenceusing means of violence– e.g. ‘pre-emptive neutralisation’, Israel’s policy of e.g. ‘pre-emptive neutralisation’, Israel’s policy of

‘targeted assassination’ in the Occupied ‘targeted assassination’ in the Occupied TerritoriesTerritories

– this usually provokes escalation of conflictthis usually provokes escalation of conflict

Traditional Responses to Traditional Responses to Terrorism IITerrorism II

Legal & PoliticalLegal & Political:: security-driven responses are usually not security-driven responses are usually not

sufficient and often counter-productivesufficient and often counter-productive put in place legal instruments facilitating put in place legal instruments facilitating

‘defection’‘defection’ political negotiation or reform political negotiation or reform concerning concerning

underlying issues has been key to resolving underlying issues has been key to resolving conflictconflict

1. bring terrorists to negotiating table; 1. bring terrorists to negotiating table; 2. drain support from sympathisers as their 2. drain support from sympathisers as their

grievances appear to be addressed grievances appear to be addressed (=’mainstreaming’ politics)(=’mainstreaming’ politics)

– e.g. Red Brigades in Italy, IRA/N. Ireland, PLO in e.g. Red Brigades in Italy, IRA/N. Ireland, PLO in Palestine, ETA in SpainPalestine, ETA in Spain

Terrorism and (Organised) Terrorism and (Organised) CrimeCrime Terrorist suspects in Guantanamo Bay are not Terrorist suspects in Guantanamo Bay are not

benefiting from Geneva Conventions because they benefiting from Geneva Conventions because they are ‘criminals’, not ‘soldiers’…are ‘criminals’, not ‘soldiers’…Thus, what is the Thus, what is the relationship between crime and terrorism?relationship between crime and terrorism?

Terrorism is illegal… But is it immoral?Terrorism is illegal… But is it immoral?– Terrorist groups frame themselves as fighting an unjust Terrorist groups frame themselves as fighting an unjust

‘system’. ‘system’. – Occasionally they are convincing (Apartheid)…Occasionally they are convincing (Apartheid)…

Crime to fund activities? arms smuggling; drug Crime to fund activities? arms smuggling; drug trafficking; or racketeering…trafficking; or racketeering…– E.g. Provisional IRA, GIA (Algeria), Sendero Luminoso (Peru), E.g. Provisional IRA, GIA (Algeria), Sendero Luminoso (Peru),

FARC (Columbia)FARC (Columbia) Sometimes, criminals use terror tactics…Sometimes, criminals use terror tactics…

Narcoterrorism - terrorist-type attacks against anti-Narcoterrorism - terrorist-type attacks against anti-narcotics police. E.g. Pablo Escobar's (Medellin narcotics police. E.g. Pablo Escobar's (Medellin Cartel) in Columbia.Cartel) in Columbia.

State sponsors and ‘rogue states’State sponsors and ‘rogue states’ State terrorismState terrorism: Judge B. Garzón: Judge B. Garzón

– “…“…a political system whose rule of recognition a political system whose rule of recognition permits and/or imposes a clandestine, unpredictable, permits and/or imposes a clandestine, unpredictable, and diffuse application, even regarding clearly and diffuse application, even regarding clearly innocent people, of coercive means prohibited by the innocent people, of coercive means prohibited by the proclaimed judicial ordinance."proclaimed judicial ordinance."

– Is authoritarianism terrorism?Is authoritarianism terrorism? State-sponsored terrorismState-sponsored terrorism: The funding and/or : The funding and/or

supplying of terrorist groups by states.supplying of terrorist groups by states.– IranIran: ‘exporting the revolution’ in the 1980s, : ‘exporting the revolution’ in the 1980s,

HezbollahHezbollah– USAUSA: Overthrowing Mossadeq in Iran; supporting : Overthrowing Mossadeq in Iran; supporting

Pinochet in Chile; Grenada; sponsoring the Contras Pinochet in Chile; Grenada; sponsoring the Contras against the Sandinistas in Nicaragua; etc. against the Sandinistas in Nicaragua; etc.

Rogues States and WMDs: a state that refuses Rogues States and WMDs: a state that refuses to play by the rules of the game? Current to play by the rules of the game? Current definitions emphasise sponsoring of terrorism definitions emphasise sponsoring of terrorism and WMDs…and WMDs…

Dilemmas of the War on TerrorDilemmas of the War on Terror security, intelligence, & military crackdown as core security, intelligence, & military crackdown as core

response: e.g. Afghanistanresponse: e.g. Afghanistan– Enormous pressure to show ‘strength’ in response to Enormous pressure to show ‘strength’ in response to

9/11…9/11…– Ignores the political grievances of these movements…Ignores the political grievances of these movements…

Despite the successful European experience of Despite the successful European experience of political solutions!political solutions!

– Can terrorism be defeated by force, does it create new Can terrorism be defeated by force, does it create new recruits?recruits?

Political initiatives: US: traditional and cultural diplomacy to Political initiatives: US: traditional and cultural diplomacy to secure allies (9/11 exhibition) secure allies (9/11 exhibition)

Legal: Civil libertiesLegal: Civil liberties– E.g. USA: Patriot Act, Guantanamo Bay and torture E.g. USA: Patriot Act, Guantanamo Bay and torture

scandals scandals – Dilemma of choosing between ‘personal freedom’ and Dilemma of choosing between ‘personal freedom’ and

‘security’…, Pakistan’s Anti- Terrorism Act, 1997., U.K’s ‘security’…, Pakistan’s Anti- Terrorism Act, 1997., U.K’s Terrorism Act, 2000 & 2006.Terrorism Act, 2000 & 2006.

– ME authoritarian states have been encouraged to crack ME authoritarian states have been encouraged to crack down on any opposition they consider terrorist!down on any opposition they consider terrorist!

Dilemmas of the War on Terror Dilemmas of the War on Terror IIII

EconomicEconomic– threats and incentives in the security council to threats and incentives in the security council to

secure support for the war in Iraqsecure support for the war in Iraq– Lack of support in the Global South could mean Lack of support in the Global South could mean

trade and aid disastertrade and aid disaster– Postwar Iraq contracts to supporters!Postwar Iraq contracts to supporters!– No fundamental change in economic No fundamental change in economic

relationship.relationship.

What are the reasons for this ‘new wave’ of What are the reasons for this ‘new wave’ of terrorism? …Responses to ‘imperialism’? terrorism? …Responses to ‘imperialism’?

The answer to above is available only in Legal The answer to above is available only in Legal response.response.

Pakistan’s Role in Countering Pakistan’s Role in Countering TerrorismTerrorism

In 2006, in Pakistan 657 terrorist attacks, In 2006, in Pakistan 657 terrorist attacks, including 41 of sectarian nature were including 41 of sectarian nature were perpetrated, leaving 907 people dead perpetrated, leaving 907 people dead and 1,543 others injured and 1,543 others injured

‘‘Pak Institute for Peace Pak Institute for Peace Studies’Studies’

Pakistan is signatory to 11 United Nations Pakistan is signatory to 11 United Nations Counter Terrorism conventionsCounter Terrorism conventions

Pakistan’s Role in Countering Pakistan’s Role in Countering TerrorismTerrorism

Pakistan has signed extradition treaties Pakistan has signed extradition treaties

with thirty countrieswith thirty countries

Enhancing cooperating with ASEAN Enhancing cooperating with ASEAN

Regional Forum Regional Forum

Cooperating with coalition partners in Cooperating with coalition partners in

Afghanistan Afghanistan

Pakistan’s Role in Countering Pakistan’s Role in Countering TerrorismTerrorism

Captured more terrorists, especially over Captured more terrorists, especially over

600 linked with Al-Qaida 600 linked with Al-Qaida

Committed some 80,000 troops along its Committed some 80,000 troops along its

Western BordersWestern Borders

Pakistan has so far lost ………..personnel Pakistan has so far lost ………..personnel

in counter terrorist operations in areas in counter terrorist operations in areas

close to Pakistan – Afghanistan Border close to Pakistan – Afghanistan Border

Future Security Challenges / Future Security Challenges / IssuesIssues

ExtremismExtremism

– At the national and international At the national and international

levels, unjust economic, social and levels, unjust economic, social and

political systems which really spawn political systems which really spawn

violations of economic, social, cultural, violations of economic, social, cultural,

civil and political rights, contribute to civil and political rights, contribute to

the birth and nurturing of extremism the birth and nurturing of extremism

which ultimately leads to terrorism which ultimately leads to terrorism

Future Security Challenges / Future Security Challenges / IssuesIssues

ExtremismExtremism

– To break the synergy between politico-To break the synergy between politico-

religious extremism, major powers religious extremism, major powers

should avoid the double standards, should avoid the double standards,

discriminatory approach, intolerance, discriminatory approach, intolerance,

unwillingness to compromise unwillingness to compromise

Future Security Challenges / Future Security Challenges / IssuesIssues

Role of Non State ActorsRole of Non State Actors

– pursue their own agenda, protect their pursue their own agenda, protect their

own interests and have loyalties only own interests and have loyalties only

to themselves, hence further to themselves, hence further

complicate the global security complicate the global security

environment environment

Future Security Challenges / Future Security Challenges / IssuesIssues

Role of MediaRole of Media

– Media through focus on violence can Media through focus on violence can

negatively contribute to conflict negatively contribute to conflict

escalation and distort the public's escalation and distort the public's

perceptions of the situation perceptions of the situation

– Where it can accrue, if managed adroitly, Where it can accrue, if managed adroitly,

numerous advantages, it can be an numerous advantages, it can be an

effective propaganda tool in the hands of effective propaganda tool in the hands of

terrorists which they will use for both terrorists which they will use for both

tactical and strategic gains tactical and strategic gains

This is heavy stuff, time for a break..This is heavy stuff, time for a break..

..be back in ten ..be back in ten minutes.minutes.

Pakistan’s Legal Response Pakistan’s Legal Response to Terrorism.to Terrorism.

CONCEPTUALLY, anti-terrorism laws CONCEPTUALLY, anti-terrorism laws usually include specific amendments usually include specific amendments allowing the state to bypass its own allowing the state to bypass its own legislations when fighting terrorism-legislations when fighting terrorism-related crimes, on the grounds of related crimes, on the grounds of necessity. Because of this suspension necessity. Because of this suspension of regular procedure, critics often of regular procedure, critics often allege that anti-terrorism legislation allege that anti-terrorism legislation endangers democracy by creating a endangers democracy by creating a state of exception that allows an state of exception that allows an authoritarian style of government.authoritarian style of government.

Pakistani Experimentation Pakistani Experimentation Suppression of Terrorist Activities Ordinance 1975 enacted by Z.A. Bhutto, Suppression of Terrorist Activities Ordinance 1975 enacted by Z.A. Bhutto,

which remained in force in Sindh and Punjab until its repeal in 1997. It which remained in force in Sindh and Punjab until its repeal in 1997. It remained the law in then NWFP and Balochistan until August 2001.remained the law in then NWFP and Balochistan until August 2001.

Another law giving wide-ranging powers to the army to curb violent Another law giving wide-ranging powers to the army to curb violent activities was the Pakistan Armed Forces (Acting in Aid of Civil Power) activities was the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998, initially applied to Sindh. Since this law was passed in Ordinance, 1998, initially applied to Sindh. Since this law was passed in the aftermath of the army operations in Karachi, the ordinance granted the aftermath of the army operations in Karachi, the ordinance granted broad judicial powers to the military. It also created the new crime of “civil broad judicial powers to the military. It also created the new crime of “civil commotion”.commotion”.

On Jan 30, 1999, the Pakistan Armed Forces Ordinance of 1998 was On Jan 30, 1999, the Pakistan Armed Forces Ordinance of 1998 was extended to the entire country. It was also amended to enable absconders extended to the entire country. It was also amended to enable absconders to be tried in absentia by any military court. Many constitutional petitions to be tried in absentia by any military court. Many constitutional petitions challenging the validity of the ordinance were filed, resulting in the challenging the validity of the ordinance were filed, resulting in the landmark judgment Liaquat Hussain versus Federation of Pakistan on Feb landmark judgment Liaquat Hussain versus Federation of Pakistan on Feb 22, 1999. The Supreme Court declared the ordinance “unconstitutional, 22, 1999. The Supreme Court declared the ordinance “unconstitutional, without legal authority, and with no legal effect”.without legal authority, and with no legal effect”.

Experimentation ContinuesExperimentation Continues The Anti-Terrorism Act was signed on Aug 17, 1997. It The Anti-Terrorism Act was signed on Aug 17, 1997. It

created special anti-terrorism courts (ATCs) as well as an created special anti-terrorism courts (ATCs) as well as an anti-terrorism appellate tribunal which was to be a court of anti-terrorism appellate tribunal which was to be a court of appeal for verdicts handed down by ATCs. The 1997 act appeal for verdicts handed down by ATCs. The 1997 act very broadly defined “terrorism” as murder, malicious insult very broadly defined “terrorism” as murder, malicious insult of religious beliefs, the use of derogatory remarks with of religious beliefs, the use of derogatory remarks with respect to holy personages, kidnapping and various respect to holy personages, kidnapping and various statutes relating to “robbery and dacoity”.statutes relating to “robbery and dacoity”.

It was clear from the outset that the wide-ranging definition It was clear from the outset that the wide-ranging definition of terrorism would become a widely abused device, and of terrorism would become a widely abused device, and also cause crimes registered under the Anti-Terrorism Act also cause crimes registered under the Anti-Terrorism Act to go up, thus increasing the workload of the ATCs. The to go up, thus increasing the workload of the ATCs. The Supreme Court later declared most of the provisions of the Supreme Court later declared most of the provisions of the 1997 anti-terrorism act unconstitutional.1997 anti-terrorism act unconstitutional.

The Oct 24, 1998 Anti-Terrorism (Amendment) Ordinance The Oct 24, 1998 Anti-Terrorism (Amendment) Ordinance attempted to respond to most of the Supreme Court’s attempted to respond to most of the Supreme Court’s objections.objections.

On Aug 27, 1999, amendment to the act authorised ATCs for On Aug 27, 1999, amendment to the act authorised ATCs for the entire country. Another two amendments in December the entire country. Another two amendments in December that year extended the schedule of offences to include that year extended the schedule of offences to include several other provisions of Pakistan’s criminal code. It was several other provisions of Pakistan’s criminal code. It was envisaged in the original act that investigations would be envisaged in the original act that investigations would be completed within one week, and ATC trials would not take completed within one week, and ATC trials would not take longer than seven working days; this principle faded away.longer than seven working days; this principle faded away.

Another amendment on Aug 15, 2001 further expanded the Another amendment on Aug 15, 2001 further expanded the ambit of terrorism. The government was by now recognising ambit of terrorism. The government was by now recognising that terrorist organisations were conspiring against the state. that terrorist organisations were conspiring against the state. Special provisions were introduced giving powers to the Special provisions were introduced giving powers to the government to proscribe an organisation if it had “reason to government to proscribe an organisation if it had “reason to believe that the organisation is concerned with terrorism”.believe that the organisation is concerned with terrorism”.

On Jan 30, 2002, another amendment, the Anti- Terrorism On Jan 30, 2002, another amendment, the Anti- Terrorism (Amendment) Ordinance, 2002, was introduced, with the aim to (Amendment) Ordinance, 2002, was introduced, with the aim to speed up the judicial process. Yet another amendment, Anti-speed up the judicial process. Yet another amendment, Anti-Terrorism (Second Amendment) Ordinance, 2002, gave police the Terrorism (Second Amendment) Ordinance, 2002, gave police the power to detain anyone listed on the government’s ‘terrorism list’ power to detain anyone listed on the government’s ‘terrorism list’ for up to one year without filing specific criminal charges.for up to one year without filing specific criminal charges.

When the spectre of suicide bombers began to rear its head, When the spectre of suicide bombers began to rear its head, further amendments to the ATA of 1997 were made in November further amendments to the ATA of 1997 were made in November 2004. The maximum jail term for supporters of militants was 2004. The maximum jail term for supporters of militants was increased from 14 years to life imprisonment. Victims and their increased from 14 years to life imprisonment. Victims and their heirs obtained the right to appeal against the acquittal of the heirs obtained the right to appeal against the acquittal of the accused by an anti-terrorist court. Another amendment to the accused by an anti-terrorist court. Another amendment to the Anti-Terrorism Act authorised government officials to seize the Anti-Terrorism Act authorised government officials to seize the passport of anyone charged under the law. The Anti-Terrorism passport of anyone charged under the law. The Anti-Terrorism (Second Amendment) Act on Jan 10, 2005 enhanced the minimum (Second Amendment) Act on Jan 10, 2005 enhanced the minimum and maximum punishment for acts of terrorism. It also enhanced and maximum punishment for acts of terrorism. It also enhanced the jurisdiction of the ATCs so that cases of abduction and the jurisdiction of the ATCs so that cases of abduction and kidnapping for ransom, the use of explosives in places of worship kidnapping for ransom, the use of explosives in places of worship and court premises could be exclusively tried by them.and court premises could be exclusively tried by them.

In the aftermath of the Lal Masjid incident, the definition of terrorism In the aftermath of the Lal Masjid incident, the definition of terrorism was expanded by including attack on government premises, official was expanded by including attack on government premises, official installations, schools, hospitals and other public property through an installations, schools, hospitals and other public property through an amendment in 2009.amendment in 2009.

Drawing lessons from the Swat insurgency, any groups or Drawing lessons from the Swat insurgency, any groups or organisations (not recognized by the law) that took the law into their organisations (not recognized by the law) that took the law into their own hands were also recognised as perpetrators of acts of terror. To own hands were also recognised as perpetrators of acts of terror. To stop the trend of changing the nom de guerre of an organisation, stop the trend of changing the nom de guerre of an organisation, whence the same office-bearers make a new entity with a different whence the same office-bearers make a new entity with a different name, the government also got the power to ban the new name, the government also got the power to ban the new organisation which ‘sprang’ from the old one, to freeze its accounts organisation which ‘sprang’ from the old one, to freeze its accounts and to forbid its office-bearers from obtaining a passport and and to forbid its office-bearers from obtaining a passport and travelling abroad..travelling abroad..

Preventive detention was also introduced by which a person could be Preventive detention was also introduced by which a person could be kept in detention for 90 days without this being challenged in court. kept in detention for 90 days without this being challenged in court. To keep the accused in custody the right of bail was withdrawn.To keep the accused in custody the right of bail was withdrawn.

No, we still want to do more experiments.No, we still want to do more experiments.

U.S.A., U.K. Legal response U.S.A., U.K. Legal response to terrorismto terrorism

Now someNow some,,

The US reacted quickly after 9/11The US reacted quickly after 9/11 Numerous significant policy changes Numerous significant policy changes Creation of Department of Homeland Security Creation of Department of Homeland Security Robust military response, including the largest Robust military response, including the largest

sustained call-up of Reserve and National Guard sustained call-up of Reserve and National Guard forces in US history forces in US history

EU has struck a balance between national and EU has struck a balance between national and pan-European policypan-European policy

Each EU member state is responsible for the Each EU member state is responsible for the security of its citizens security of its citizens

The EU has responsibility for coordinating these The EU has responsibility for coordinating these activities effectivelyactivities effectively

U.S. Major LegislationsU.S. Major Legislations AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION ACTAIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION ACT

(2001) (2001) Passed less than one week after 9/11 Passed less than one week after 9/11 Purpose was to protect airlines from ruinous lawsuits Purpose was to protect airlines from ruinous lawsuits Provided an administrative remedy for victims and families through Provided an administrative remedy for victims and families through

the office of “special master” [Kenneth R. Feinberg] established to the office of “special master” [Kenneth R. Feinberg] established to consider claims and determine awards out of the September 11 Fund, consider claims and determine awards out of the September 11 Fund, also created by the Act also created by the Act

TERRORISM RISK INSURANCE ACT (2002)TERRORISM RISK INSURANCE ACT (2002) Attempts to protect insurance companies from catastrophic claims in Attempts to protect insurance companies from catastrophic claims in

the event of another large-scale terrorist attack the event of another large-scale terrorist attack    ““A system of shared public and private compensation for insured A system of shared public and private compensation for insured

losses resulting from acts of terrorism.” losses resulting from acts of terrorism.” No victims other than 9/11 victims have ever been successfully No victims other than 9/11 victims have ever been successfully

included in the such protective legislation, including 1993 WTC included in the such protective legislation, including 1993 WTC bombing, 1998 East Africa Embassy bombings, 2000 USS Cole attack, bombing, 1998 East Africa Embassy bombings, 2000 USS Cole attack, even though several attempts to include them have been madeeven though several attempts to include them have been made

PATRIOT ACT (OCT. 26, 2001)PATRIOT ACT (OCT. 26, 2001), or , or The Uniting and The Uniting and Strengthening America by Providing Appropriate Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Tools Required to Intercept and Obstruct Terrorism Act of 2001Act of 2001

Primarily a collection of changes to existing laws, for Primarily a collection of changes to existing laws, for example: example:

Telemarketing Consumer Fraud and Abuse Telemarketing Consumer Fraud and Abuse Prevention Act [to hinder fundraising] Prevention Act [to hinder fundraising]

Racketeer Influenced and Corrupt Organizations Act Racketeer Influenced and Corrupt Organizations Act (RICO) [to prevent money laundering and permit (RICO) [to prevent money laundering and permit expanded wiretapping, surveillance of email] expanded wiretapping, surveillance of email]

Reauthorized March 9, 2006Reauthorized March 9, 2006

Effects of LegislationsEffects of Legislations Library records: Aimed at patron internet usage, previously required a Library records: Aimed at patron internet usage, previously required a

subpoena, PA permitted the use of search warrants to obtain information subpoena, PA permitted the use of search warrants to obtain information Tracking of financial data: welcomed by financial institutions Tracking of financial data: welcomed by financial institutions INS: closer tracking of those here on student visas INS: closer tracking of those here on student visas Scientists: Background checks to obtain access to material on a newly-Scientists: Background checks to obtain access to material on a newly-

expanded toxin list expanded toxin list Truck drivers: fingerprinting those with HAZMAT certification Truck drivers: fingerprinting those with HAZMAT certification Internet: permits access to ISP records on Web traffic, not content Internet: permits access to ISP records on Web traffic, not content Data sharing with law enforcement agencies: Requires court order Data sharing with law enforcement agencies: Requires court order Major provisions have been thoroughly reviewed by courts Major provisions have been thoroughly reviewed by courts 401 criminal charges brought under PA, 212 convictions 401 criminal charges brought under PA, 212 convictions Broke up terror cells in Buffalo, Detroit, Seattle, Portland (Ore.) and Broke up terror cells in Buffalo, Detroit, Seattle, Portland (Ore.) and

northern Virginia northern Virginia Frozen $136M in assets around the worldFrozen $136M in assets around the world

HOMELAND SECURITY ACT (2002)HOMELAND SECURITY ACT (2002) Created Dept. of Homeland Security: to reduce Created Dept. of Homeland Security: to reduce

vulnerability of US to terrorist attacks at home, vulnerability of US to terrorist attacks at home, minimize damage and improve recovery from minimize damage and improve recovery from terrorist attacks terrorist attacks

Five Responsibilities Five Responsibilities 1. Information analysis and infrastructure protection 1. Information analysis and infrastructure protection 2. WMD countermeasures 2. WMD countermeasures 3. Border security 3. Border security 4. Emergency preparedness and response 4. Emergency preparedness and response 5. Coordination: intergovernmental & private sector5. Coordination: intergovernmental & private sector

BENEFITS FOR VICTIMS OF INTERNATIONAL TERRORISM ACT BENEFITS FOR VICTIMS OF INTERNATIONAL TERRORISM ACT (2003)(2003)

Programs to provide benefits to those US citizens who find Programs to provide benefits to those US citizens who find themselves victims of terrorism themselves victims of terrorism

compensation is also sought under compensation is also sought under ANTITERRORISM AND ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT (1996)EFFECTIVE DEATH PENALTY ACT (1996)

Established right of victims to sue foreign states listed as Established right of victims to sue foreign states listed as state sponsors of terrorism (Iran, Iraq, N. Korea, Cuba, Libya, state sponsors of terrorism (Iran, Iraq, N. Korea, Cuba, Libya, Sudan, Syria) Sudan, Syria)

Compensation for hostages now set at $10K per day as a Compensation for hostages now set at $10K per day as a result of high profile cases result of high profile cases

such as Terry Anderson, Joseph Cicippio Wrongful death such as Terry Anderson, Joseph Cicippio Wrongful death awards usually based on lost earnings, calculated by tax awards usually based on lost earnings, calculated by tax returns and actuarial tablesreturns and actuarial tables

E.U. Legal ResponsesE.U. Legal Responses

European Council, Declaration on European Council, Declaration on Combating Terrorism (Mar. 11, 2004) Combating Terrorism (Mar. 11, 2004)

Expressed the basic framework for Expressed the basic framework for EU responses to terrorism following EU responses to terrorism following the 2004 Madrid bombing the 2004 Madrid bombing

Represents the importance of Represents the importance of European security cooperationEuropean security cooperation

2004 Declaration on Combating Terrorism 2004 Declaration on Combating Terrorism Terrorism is not new and has been until recently a Terrorism is not new and has been until recently a

problem for national governments (i.e., Irish Republican problem for national governments (i.e., Irish Republican Army, ETA in Spain, Red Army Faction in Germany) Army, ETA in Spain, Red Army Faction in Germany)

Terrorism has now emerged as a global phenomenon, Terrorism has now emerged as a global phenomenon, with al Qaeda pioneering the pattern for other orgs. with al Qaeda pioneering the pattern for other orgs.

The global threat is from fundamentalist religious The global threat is from fundamentalist religious groups [the term Islamic is not used] that follow the groups [the term Islamic is not used] that follow the teachings of leaders such as Sayyid Qutb teachings of leaders such as Sayyid Qutb

Attacks are not limited to symbols of the state but are Attacks are not limited to symbols of the state but are designed to achieve maximum publicity designed to achieve maximum publicity

These groups are international and are linkedThese groups are international and are linked

Common European standards for authorization to Common European standards for authorization to access classified information access classified information

Interoperable and interconnected EU security systems Interoperable and interconnected EU security systems An effective intelligence-led enforcement capability at An effective intelligence-led enforcement capability at

EU level and the establishment of an EU criminal EU level and the establishment of an EU criminal intelligence network intelligence network

Intelligence sharing Intelligence sharing Cooperation crucial with EU and non-EU countries Cooperation crucial with EU and non-EU countries Inherent barriers in intelligence gathering: internal Inherent barriers in intelligence gathering: internal

and international Member states retain security and international Member states retain security responsibility, EU acts as policy coordinator responsibility, EU acts as policy coordinator intelligence clearing houseintelligence clearing house

The The Nullum CrimenNullum Crimen Principle Principleandand

the Trial of Saddam Husseinthe Trial of Saddam Hussein

Issam Michael SalibaIssam Michael SalibaMarch 2, 2006March 2, 2006

The Law Library of CongressThe Law Library of Congress

Serving the United States Congress Since 1832Serving the United States Congress Since 1832

Basic FactsBasic Facts

Saddam Hussein is charged with crimes against humanity committed during Saddam Hussein is charged with crimes against humanity committed during 1982-83.1982-83.

““Crimes against humanity” is an international offense.Crimes against humanity” is an international offense.

There was no Iraqi law addressing crimes against humanity.There was no Iraqi law addressing crimes against humanity.

The 2003 CPA statute is the first Iraqi law addressing crimes against The 2003 CPA statute is the first Iraqi law addressing crimes against humanity.humanity.

Law No. 10/05 replaced the 2003 statute.Law No. 10/05 replaced the 2003 statute.

Can the court convict under law No. 10 for acts committed in 1982/83 Can the court convict under law No. 10 for acts committed in 1982/83 without violating the legality principlewithout violating the legality principle??

What is the legality principleWhat is the legality principle??

The The NULLUM CRIMEN SINE LEGENULLUM CRIMEN SINE LEGE Principle in Principle in

Criminal Law Criminal Law Universal Declaration of Human Rights, Article Universal Declaration of Human Rights, Article

11.2 (1948):11.2 (1948):

No one shall be held guilty of any penal offence on account of any act No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penalty be imposed than the one that was applicable at the time the penal offence was committed.penal offence was committed.

The The Nullum CrimenNullum Crimen Principle in Principle in International Law International Law

(continued)(continued)

International Covenant on Civil and Political Rights, Article International Covenant on Civil and Political Rights, Article 15, sec. 1 15, sec. 1 ::

No one shall be held guilty of any criminal offence on account of any act No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit therebypenalty, the offender shall benefit thereby..

The The Nullum CrimenNullum Crimen Principle in Principle in International Law International Law

(continued)(continued)

European Convention on the Protection of Human Rights and European Convention on the Protection of Human Rights and Fundamental Freedoms, Article 7, sec. 1 (1950)Fundamental Freedoms, Article 7, sec. 1 (1950)

No one shall be held guilty of any criminal offence on account of any act or No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penalty be imposed than the one that was applicable at the time the criminal offence was committedcriminal offence was committed..

The The Nullum CrimenNullum Crimen Principle in National Principle in National LawLaw

United States, sections 9 and 10 of Article I of the Constitution United States, sections 9 and 10 of Article I of the Constitution

Iraq, section 2 of Article 19 of present Constitution:Iraq, section 2 of Article 19 of present Constitution:

There shall be no crime and no punishment without a stipulation [by There shall be no crime and no punishment without a stipulation [by law]; there shall be no punishment except for an act the law considers a law]; there shall be no punishment except for an act the law considers a crime at the time of its commission; and no punishment shall be crime at the time of its commission; and no punishment shall be imposed that is more severe than the punishment in effect at the time imposed that is more severe than the punishment in effect at the time of the commission of the crime.of the commission of the crime.

Iraq, Article 1 of the Penal Code:Iraq, Article 1 of the Penal Code:

There shall be no punishment for an act or omission except on the There shall be no punishment for an act or omission except on the basis of a law so stipulating at the time of its occurrence. And no basis of a law so stipulating at the time of its occurrence. And no penalties or precautionary measures shall be imposed without being penalties or precautionary measures shall be imposed without being prescribed by law.prescribed by law.

Can a National law Incorporating an Can a National law Incorporating an International crime Apply International crime Apply

Retrospectively? Retrospectively?

There are are four major court decisions from There are are four major court decisions from different countries on the issue, with two different countries on the issue, with two

differing points of viewdiffering points of view

Canada and Spain United Kingdom and FranceCanada and Spain United Kingdom and France

Canada: The Canada: The FintaFinta Case Case A 1987 law gave Canadian courts extra-territorial jurisdiction A 1987 law gave Canadian courts extra-territorial jurisdiction for crimes against humanity.for crimes against humanity.

Imre Finta was charged for crimes against humanity committedImre Finta was charged for crimes against humanity committed in 1944.in 1944.

Finta was acquitted by a jury trial, but the case reached the Finta was acquitted by a jury trial, but the case reached the Supreme Court.Supreme Court.

Did the 1987 law violate theDid the 1987 law violate the nullum crimennullum crimen principle of the principle of the Canadian CharterCanadian Charter??

Court adopted the notion of an act "illegal but not criminal" atCourt adopted the notion of an act "illegal but not criminal" at the time it was committed.the time it was committed.

Spain: The Spain: The ScilingoScilingo Case Case

In 2001, Adolfo Scilingo was arrested in Spain and charged with In 2001, Adolfo Scilingo was arrested in Spain and charged with international offenses committed in Argentina.international offenses committed in Argentina.

In 2004, the Supreme Court (Tribunal Supremo) confirmed the In 2004, the Supreme Court (Tribunal Supremo) confirmed the jurisdiction of the National Court (Audiencia Nacional) to try Scilingo. jurisdiction of the National Court (Audiencia Nacional) to try Scilingo.

In April 2005, Scilingo was convicted and sentenced to 640 years in In April 2005, Scilingo was convicted and sentenced to 640 years in prison.prison.

The conviction relied on article 607 bis of the Spanish penal code. The conviction relied on article 607 bis of the Spanish penal code.

Article 607 bis was added to the Spanish Penal Code in 2004.Article 607 bis was added to the Spanish Penal Code in 2004.

How did the Court justify its decision?How did the Court justify its decision?

United Kingdom: The Pinochet DecisionUnited Kingdom: The Pinochet Decision ((Regina v. Bartle, et alRegina v. Bartle, et al.).)

• Universal jurisdiction for local courts was granted in the UK by the Criminal Justice Act, 1988.

• Spain requested the extradition of Pinochet, while he was in London, to stand trial for torture and conspiracy to torture committed in Chile.

• Double criminality rule requirements.

• The House of Lords held that the alleged acts must be crimes under UK law at the date of commission.

• Were the alleged acts extraditable?

France: Decision on CrimesFrance: Decision on Crimes Committed During the Algerian War Committed During the Algerian War

France amended article 211 of its penal code to incorporateFrance amended article 211 of its penal code to incorporate crimes against humanity into French law in 1994.crimes against humanity into French law in 1994.

A subsequent complaint alleged commission of crimesA subsequent complaint alleged commission of crimes against humanity inagainst humanity in Algeria between 1955 and 1957.Algeria between 1955 and 1957.

Could the investigation proceed on the basis of article 211?Could the investigation proceed on the basis of article 211?

Could the investigation proceed on the basis of theCould the investigation proceed on the basis of the charter of the Nuremberg Tribunal?charter of the Nuremberg Tribunal?

Could principles of international customary law provide a legalCould principles of international customary law provide a legal basis for proceeding in the investigation? basis for proceeding in the investigation?

CONCLUSIONCONCLUSION