TERRORISM AND INTERNATIONAL LAW IN VIEW OF THE 26/11 MUMBAI ATTACKS By Rishav Banerjee1

A. Introduction: They never forgot That even the dreadful martyrdom must run its course Anyhow in a corner, some untidy spot Where the dogs go on with their doggy life and the torturer's horse Scratches its innocent behind on a tree. Only God can tell the saintly from the suburban, Counterfeit values always resemble the true; Neither in Life nor Art is honesty bohemian, The free behave much as the respectable do.2 Violence shall synchronize your movements like a tune, And Terror like a frost shall halt the flood of thinking. Barrack and bivouac shall be your friendly refuge, And racial pride shall tower like a public column And confiscate for safety every private sorrow.3 The Attack on the World Trade Center and the Pentagon on September 11, 2001 and the very recent attack on Mumbai on 26 November, 2008 has sparked a hot debate on the

B.A. L.L.B. (Hons), Gujarat National Law University, Gandhinagar, Gujarat, India. The author can be contacted at rishavban@gmail.com. 2 W.H. Auden, New Year Letter (1941). 3 W.H. Auden, In Times of War, in W.H. Auden & Christopher Isherwood, Journey to War (1939).

adequacy of the current international law framework and how it will face the increasing challenge of Terrorism. When an atrocity like that of September 11, 2001, or November 26, 2008, occurs, the rhetoric of those who conspired to cause it or who otherwise prompted it is so venomous that it generates similar rhetoric and possibly even similar conduct in reaction. Prior to September 11, we might have refused to believe that human beings could actually commit such acts upon others. We cannot fathom what can cause individuals to fly planes filled with innocent passengers as missiles into buildings also filled with innocents or keep innocent people as hostages and indiscriminately firing at them thereby killing hundreds of them. Discussing terrorism in light of the November 26 attacks on Mumbai is daunting. It requires one to wonder how to maintain equilibrium in the face of a menace that wishes its own death as long as it flows from the slaughter of 'the enemy.' This article will attempt to fathom what is terrorism and the International Law governing it.

B. What is Terrorism? At the outset, it is necessary to settle on an acceptable definition of terrorism, whether state or otherwise. Of course, we are likely not going to be able to give a definition or characterization that tracks completely and exclusively all and only those actions that are reasonably called acts of terrorism. For my purposes, it is sufficient to cite six particularly illustrative definitions of terrorism: 1. "Terrorism is the use of coercive means aimed at civilian populations in an effort to achieve political, religious or other aims."4 2. Terrorism is the tactic of intentionally targeting non-combatants with lethal or severe violence for political purposes. 5
4

Noam Chomsky, "U.S.--A Leading Terrorist State" (2001) 53(6) MONTHLY REV. 10 at 19 [Chomsky, "Leading Terrorist State"]. Chomsky's definition was taken from a U.S. Army manual. He points out that this definition is "almost the same" as the United States' characterization of low-intensity warfare. 5 Kai Nielsen, On the Moral Justifiability of Terrorism (State and Otherwise), 41 OSGOODE HALL

3. "Terrorism is the use of more or less random violence against whole populations."6
4. "Terrorism is the deliberate killing of innocent people, at random, in order to spread

fear through a whole population and force the hand of its political leaders."7 5. "Terrorism is the deliberate use of violence, or threat of its use, against innocent people, with the aim of intimidating them, or other people, into a course of action they would otherwise not take."8 6. "Terrorism consists in aiming specifically at civilian targets not directly involved in the opposing side's war effort in order to spread massive terror among the general population in furtherance of whatever political result is being pursued."9 These definitions, with their differing though overlapping emphases, provide a reasonable initial understanding for our purposes of what we are talking about in speaking of terrorism. For more than thirty years after the Second World War, States in the UN debated the question of punishing terrorism. However, they were seemingly unable to agree upon a definition of this crime. Third World countries staunchly clung to their view that his notion could not cover acts of violence perpetrated by so-called freedom fighters, i.e. individuals and groups struggling for their right to self- determination. As a result, both scholars and diplomats currently hold the view that States have never agreed upon a definition of terrorism as such.10 Hence, it would be impossible to criminalize this phenomenon as such. At present it would be possible to consider as criminal only single and specific instances of terrorism specifically prohibited by some treaties: hijacking of aircrafts, terrorist acts against internationally protected persons including diplomatic agents, the taking of hostages, terrorists acts against the safety of maritime navigation,

L.J. 427.
6 7
8 9

Norman Geras, "Our Morals: The Ethics of Revolution" (1989) SOCIALIST REG. 185 at 199. Michael Walzer, "Five Questions about Terrorism" (Winter 2002) Dissent 5 at 5.

Igor Primoratz, "What is Terrorism?" (1990) 7(2) J. APPLIED PHIL. 129 at 135. Danny Goldstick, "Defining 'Terrorism"' (1991) 4(3) NATURE, SOC'Y, & THOUGHT 261 at 265. 10 Antonio Cassese , International Criminal Law, Oxford University Press (2003).

terrorist bombing, financing of terrorism, etc. This proposition amounts to saying that terrorism per se is not a discrete crime under customary international law. To my mind, this view is not correct. A definition of terrorism does exist, and the phenomenon also amounts to a customary international law crime.11

C. Terrorism and International Law governing it: In 1999 a treaty was agreed upon in the UN GA that, in addition to prohibiting specific acts of terrorism, also added a definition of this phenomenon: this is the International Convention for the Suppression of the Financing of Terrorism (GA resolution 54/109 of 9 December 1999). In defining terrorism the Convention takes a twofold approach: first, in Article 2(a) it refers to the acts prohibited by nine treaties listed in the Annex (on hijacking, terrorist bombing, etc.); secondly, in article 2(1))(b) it sets forth a sort of allinclusive formula, that completes the previous definition by reference; this provision stipulates that terrorism is: Anyact intended to cause death or serious bodily injury to a civilian, or to any other person no taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing an act. Three main elements seem to be required for the crime of international terrorism: (i) the acts must constitute a criminal offence under most national legal systems (for example, assault, murder, kidnapping, hostage-taking, extortion, bombing, torture, arson, etc.); (ii) they must be aimed at spreading terror (that is, fear and intimidation) by means of violent action or the threat thereof directed against a State, the public or particular groups of persons; (iii) they must be politically, religiously, or otherwise ideologically motivated, that is not motivated by the pursuit of private ends.
11

Id.

Terrorism is a phenomenon that may take on diverse forms and manifestations. It has judiciously been said that it has a chameleon-like character.12 Hence it should not be surprising that it may fall under various categories of crimes, depending on the circumstances in which terrorist acts are perpetrated.13 A further distinguishing trait is that, to amount to an international crime proper, terrorist acts must show a nexus with an international or internal armed conflict (that is, a military clash between two States or between two armed groups within one State), or they must acquire such a magnitude as to exhibit the hallmarks of a crime against humanity, or they must involve State authorities and exhibit a trans-national dimension, that is, they do no remain confined to the territory of one State but massively spill over into and jeopardize the security of other States. This is among other things evidenced by provisions of international treaties that exclude from the treaties application merely domestic terrorism.14 "Acts of terrorism, like acts of piracy, should be declared 'crimes against humanity."15. The international community has not posited a comprehensive or generally accepted definition of "terrorism."16 In 1985, the United Nations General Assembly unanimously passed a resolution condemning terrorism.17 Under the resolution, the General Assembly, Unequivocally condemns, as criminal, all acts, methods and practices of terrorism wherever and by whoever committed, including those that jeopardize friendly relations among States and their security; . . .
A. Roberts, Can We Define Terrorism?, 14 OXFORD TODAY (2002), at 18. Y. Dinstein, Terrorism as an International Crime, 18 ISRAEL Y. ON HUMAN RIGHTS (1989), 5573. 14 See for instance Article 3 of the UN Convention on terrorist bombing, on 12 January 1998 (this Convention shall not apply where the offence is committed within the single State, the alleged offender and the victims are nationals of that State, the alleged offender is found in the territory of that State and no other State has a basis under Article 8(1) or Article 6(2) of this Convention to exercise jurisdiction, except that the provisions of Articles 10 to 15 shall, as appropriate apply in those cases). For a similar provision see Article 3 of the Convention on financing of terrorism, of 20 January 2000. 15 Franz W. Paasche, The Use of Force in Combating Terrorism, 25 COLUM. J. TRANSNAT'L L. 377, 380 (1987). 16 Lori F. Damrosch et al., International Law 471 (4th ed. 2001). 17 G.A. Res. 40/61 U.N. GAOR, 40th Sess., Supp. No. 51, at 507, U.N. Doc. A/40/1003 (1985).
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Appeals to all States that have not yet done so to consider becoming a party to the existing international conventions relating to various aspects of international terrorism; and . . . Calls upon all States to fulfill their obligations under international law to refrain from organizing, instigating, assisting or participating in terrorist acts in other States or acquiescing in activities within their territory directed toward the commission of such acts.18 D. Security Council Resolutions: There are quite a few Security Council Resolutions on Terrorism but Resolution 1368 and 1373 are quite important to be discussed in the present scenario. U.N. Security Council Resolution 1368 which was adopted unanimously on the day following the September 11th attacks, refers to its readiness to take all necessary steps to respond to the attacks to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations. In its preambular paragraph, Resolution 1373 of 28 September 2001 reaffirmed a primarily negative duty set out in the General Assemblys Friendly Relations Resolution (1970) and in Security Council Resolution 1189 (1998), emphasizing that States should refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts.19 In its operative paragraphs, Resolution 1373 elaborated upon the numerous anti- terrorism obligations of both positive and negative nature, which were set forth in Resolution 1269 (1999).20 First, there exist positive duties to prevent and suppress the financing of terrorist acts, including the freezing funds and financial assets of those involved in terrorist acts.21 Second, States are obliged to refrain from providing
18 19

Id. U.N. SCOR, 56th Sess., 4385th mtg., at 2-3, U.N. Doc. SC/7158 (2001). 20 U.N. SCOR, 54th Sess., U.N. Doc. S/RES 1269 (1999). 21 Id. 1.

any support, active or passive, to those engaged in terrorism and to take steps to prevent terrorist acts through early warning and other means. Third, positive obligations go in tandem with the renewed emphasis on the need to penalize acts of international terrorism as serious criminal offences and that any individual taking part in the financing, planning, preparation or perpetration of terrorism must be brought to justice pursuant to national criminal law. States are also enjoined to deny safe heavens to those involved in terrorist acts and to prevent their territories from being used for terrorist purposes.22

E. 26 November, 2008 Mumbai Attacks: The 2008 Mumbai attacks were ten coordinated shooting and bombing terrorist attacks across Mumbai, India's financial capital and its largest city. The attacks, which began on 26 November 2008 and lasted until 29 November, killed at least 173 people and wounded at least 308.23 The Mumbai attacks were directed by militants inside Pakistan, and carried out by ten well-trained Pakistani attackers who traveled to Mumbai by sea from Karachi via a hijacked trawler.24 Nine of the attackers were killed and one, Ajmal Amir Kasab, was captured alive who disclosed that the attackers were members of Lashkar-e-Toiba, the Pakistan-based militant organization, considered a terrorist organization by India, the United States, and the United Kingdom, among others.25 Attribution of the 2008 Mumbai attacks was made by the Indian authorities who said that the Mumbai attacks were directed by Lashkar-e-Toiba militants inside Pakistan. American intelligence agencies also agree with this attribution.26 There is no doubt regarding the fact that Kasab is a

Id. 2. Press Information Bureau (Government of India) (2008-12-11), retrieved on 2008-12-14. 24 Schmitt, Eric; Sengupta, Somini (2008-12-03). "Ex-U.S. Official Cites Pakistani Training for India Attackers". The New York Times.< http://www.nytimes.com/2008/12/04/world/asia/04india.html?hp.> Retrieved on 2008-12-03. 25 Schmitt, Eric; Somini Sengupta, Jane Perlez ,"U.S. and India See Link to Militants in Pakistan". New York Times, (2008-12-03). <http://www.nytimes.com/2008/12/03/world/asia/03mumbai.html?bl&ex=1228453200&en=a32b625bf992 8825&ei=5087%0A>. Retrieved on 2008-12-03. 26 Id.
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Pakistani National27 and from his statement it is also clear that all the ten terrorist had their hometowns in Pakistan.28 The Mumbai attacks portrayed one of the worst form of terrorism in the country in recent times.

F. State Responsibility: Another general feature of terrorism is that it is criminal whether perpetrated by individuals acting in a private capacity (normally as members of a terrorist group or organization) or by State officials. In the latter case, of course, alongside individual criminal liability there may arise State responsibility: the State on whose behalf the agent engages in terrorist action may incur international responsibility for breaching the international customary norms and any applicable treaty rules that make it unlawful to organize, instigate, assist, finance, or participate in terrorist acts in territories acts in territories of other States. In the former case States may be internationally responsible if they acquiesce in, tolerate, or encourage activities within their territory directed towards the commission of such acts abroad.29 It must be questioned whether the November 26th attacks, the internationally wrongful acts, can be imputable to the Pakistani government under general international law relative to State Responsibility. This question should be addressed through the close appraisal of the ILCs Draft Articles on State Responsibility,30 which largely codifies customary international law. In the Corfu Channel case, the ICJ ruled that all the States owed an obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.31
"Surviving gunmans identity established as Pakistani". Dawn. 2009-01-07. <http://www.dawn.net/wps/wcm/connect/Dawn%20Content%20Library/dawn/news/pakistan/survivinggunmans-identity-established-as-pakistani-ss>. Retrieved on 2009-01-07. 28 Mumbai Attackers Called Part of Larger Band of Recruits, NYT, 09-Dec-2008. 29 See among other things the various UN General Assembly resolutions cited in note 15 above. 30 Report of the International Law Commission, U.N. GAOR, 53rd Sess., Supp. No. 10, at 56, U.N. Doc. A/36/10 (2001). 31 Corfu Channel (U.K. v. Alb.) 1949 I.C.J. 4, at 22 (Apr. 9).
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Lashkar-e-Toiba, which is not an insurrectional or other movement within the meaning of Article 10 of the Draft Articles on State Responsbility, but a private group not entertaining legal personality, cannot be regarded as a de facto organ of a State as provided in Article 4 of the Draft Artciles. There is no proper evidence to show that it was neither instructed, directed, nor controlled by a State i.e. here Pakistan in the sense of Article 8 of the Draft Articles.32 In the Nicaragua case, the Court emphasised that in order to establish attribution of acts of private persons to a State, the latter must exercise effective control over the acts.33 At any rate, it is hard to recognise at this juncture that the Pakistani Government held effective control over the specific conduct of Lashkare-Toiba on November 26, 200834 although the Indian intelligence sources claims that Pakistan's powerful ans secretive Inter-Services Intelligence (ISI) intelligence agency helped train the Mumbai attackers.35 Further Lashkar-e-Toiba could not be considered as exercising elements of the governemental authority within the menaing of Article 9 of the Draft Articles. All these examinations of the rules on attribution in customary international law on State responsibility suggest that it is difficult and only faintly possible to consider the November 26 attacks per se to be the act of the Pakistan government. In my view at this juncture one cannot hold Pakistan responsible as a State as it has never acknowledged or adopted the conduct of the private actors (here the terrorist and Lashkar-e-Toiba) as its own. The terrorists (here the lone survivor Kasab) can be held individual criminal responsbile for the acts of terrosism. In my view in respect of the Mumbai attacks, the acts of terrorism amounts to crimes against humanity as : (i) they are part of a widespread or

32

This provision reads that the conduct of a person or group of persons shall be considered an act of a State under International law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. The International Law Commissions Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 8. 33 Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 at 62, 64-65, paras. 109&115 (June 27). 34 Id. Clearly, the instructions, direction or control must be related to the conduct that would constitute an internationally wrongful act. 35 Supra note 22.

systematic attack on civlians; and (ii) the perpetrators are aware or cognizant of the fact that their criminal acts are part of a genaral or systematic pattern of conduct , which meets the requirements of crimes against humanity.36 G. Conclusion : To sum up, it may be noted that international substantive rules on international crimes of terrorism are fairly satisfactory. In addition to covering most manifestations of terrorism, they regard as criminal all terrorist acts whether they emanate from private individuals or State officials. Terrorism is condemned--it is criminal--whether committed by states against their own inhabitants or extraterritorially. It is criminal whether it is perpetrated by insurgents, even those struggling for independence or freedom from oppression. I am not arguing for punishment of states, nations, or groups for the commission of these offenses, although this may sometimes be appropriate. My attention has been aimed at the fact that individuals commit these offenses and cause their people to commit them. Thus, individuals even (or certainly) when functioning in their official governmental capacity, are subject to law and may be punished for committing or aiding and abetting the criminal conduct analyzed herein. Impunity must be eliminated. Attacks like the one in Mumbai on 26 November, 2008 will be always remembered as one of the most heinous terrorist acts of all time. So care must be taken to ensure that international and domestic action taken to obtain justice and to prosecute perpetrators does not fall into the same trap that ensnared those who committed the crimes. If we allow ourselves to descend to simple vengeance, we are lost.

36

Prosecutor v Goran Jelisic, Case No.: IT-95-10-T.