Module 2

MODULE 2
COUNTER-TERRORISM

2.1. INTRODUCTION

Terrorism poses a serious threat to human rights and democracy. This menace
requires action by states to prevent and penalize terrorist acts. However, States
are duty bound to protect the public interest and the rule of law without
jeopardizing the core of human rights, which are incorporated in human rights
conventions. Despite not having a comprehensive, all-inclusive definition, the
General Assembly has worked towards achieving international consensus on
combating terrorism. In the previous module, we have already listed down the
important instruments which have been adopted to combat terrorism and different
aspects related to it.

Over time, the level of awareness regarding terrorism, particularly the global
character of such an offence, has gained traction. Following the attack on Lod
Airport, near Tel Aviv, and the kidnapping and killing of 11 Israeli athletes during
the Olympic Games in Munich in 1972, the issue of terrorism attracted global
attention. The then Secretary General, Kurt Walheim requested the General
Assembly to include an urgent matter in its twenty-seventh addition, i.e.
“Measures to prevent terrorism and other forms of violence which endanger or
take innocent human lives or jeopardize fundamental freedoms”1.

1 See document A/8791 of 8 September, 1972.

Shifts in Counter-terrorism Policy

From 1972 to 1991, the General Assembly used the term: proposals of “measures
to prevent terrorism” in its resolutions. At this time, consideration of terrorism
was done as a general problem. During this time, there was disagreement as to
whether terrorism should be prevented through cooperation in suppressing its
manifestations or removal of its root cause.

The second important time period was from 1993 to 2001. During this time, the
basic considerations were shifted to human rights and terrorism and measures to
eliminate international terrorism. This time period reflected an agreement on the
understanding that existence of root causes did not justify terrorist acts. The
General Assembly issued numerous resolutions condemning acts of terrorism and
requested Member states to cooperate with each other.

Then came the incident which shocked the conscience of the world and forced
the states to come together in a unified fight against terrorism. The 9/11 attack in
2001 changed the orientation of General Assembly’s counter-terrorism policy.
There is now a clear and unified agreement that terrorist acts are unjustified, no
matter what the root cause be. This understanding has also helped international
bodies in their ability to act in response to terrorism.

The 9/11 terrorist attacks in New York, Washington and Pennsylvania caused a
shock felt and remembered by all. The response of the United Nations was prompt
and decisive. On 12 September 2001, the Security Council unanimously adopted
resolution 1368 (2001), whose main and novel feature lay in its invocation of the
right to individual or collective self-defense under the terms of Article 51 of the
Charter and which solemnly called upon all Member States to work together “to
bring to justice the perpetrators, organizers and sponsors” of terrorists acts and to

“redouble their efforts to prevent and suppress” them. This resolution is
considered a turning point as it legitimized the use of force to fight terrorism.2

The UN Global Counter-Terrorism Strategy3 is a unique global instrument to
enhance national, regional and international efforts to counter terrorism. It was
adopted in 2006 by a consensus, wherein all UN Member States agreed the first
time to a common strategic and operational approach to fighting terrorism. The
Strategy is clear in its stand that all forms and manifestations of terrorism are
unacceptable. It focusses on devising practical steps, for individual and collective
action, to prevent and combat terrorism. Two important measures are-
strengthening state capacity to counter terrorist threats and better coordination.

Another important thing to note is that due to various nuances, it has been difficult
to arrive at a conclusion with respect to a comprehensive definition of terrorism.
Some states are of the opinion that recourse to terrorism cannot be justified under
any reason or circumstance. This position has also bene reflected in the United
Nations documents and in statements by the Secretary General. But, some states
are of the opinion that in certain circumstances- such as the fight against foreign
occupation- the use of violence does not constitute terrorism. This particular
divergence has deepened the disagreement on the legal status of the armed forces
in conflicts involving non-State actors. One important question arises that
whether the Geneva Conventions on humanitarian law or international counter-
terrorism laws should prevail?

2 https://www.un.org/sc/ctc/wp-content/uploads/2017/01/2006_01_26_cted_lecture.pdf.
3 A/RES.60/288.

Counter-Terrorism and Human Rights

In counter-terrorism efforts, one of the main roles of the United Nations is to seek
to ensure that States respect human rights while countering terrorism. This has
majorly been advanced by the consistent efforts of the Office of the High
Commissioner for Human Rights (OHCHR). At its sixty-first session, the
OHCHR, in April 2005, appointed a special rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism.

In 2003, the Security Council has clearly stated that-

States must ensure that any measures taken to combat terrorism comply
with all their obligations under international law and should adopt such
measures in accordance with international law, in particular international
human rights, refugee, and humanitarian law.

The United Nations has, time and again, repeated that effective action against
terrorism and respect for human rights are not incompatible objectives. Certain
rights, such as the right to life and to freedom from torture and cruel, inhuman or
degrading treatment or punishment should never be subject to suspension or
restriction.

Scope of Discussion

Having discussed a general overview of the evolution of the global counter-
terrorism policy and the triggering events, we will now move on to discuss the
detailed counter-terrorism policy as evolved through various conventions,
resolutions and other international instruments. We will divide the discussion into
two parts- the important legal instruments and counter-terrorism strategy as

developed by the United Nations as a living document, which is reviewed and
updated every two years. The Indian approach to counter-terrorism will be
discussed in the next modules with special focus on maritime and aviation
security.

2.2. IMPORTANT LEGAL INSTRUMENTS

There is a need to carefully define the scope of this discussion due to the vastness
of material available on the subject. There are numerous resolutions, summits,
regional instruments etc. on counter-terrorism which widen the scope of the
discussion. However, for the purposes of this course, we shall focus on getting a
basic understanding of the international approach to counter-terrorism, as has
been reflected in major instruments. For the sake of brevity and easy
understanding, we will not be concerning ourselves with technicalities. The prime
focus will be on understanding the current global approach which shapes modern
day counter-terrorism strategy, which in turn also significantly impacts the
national approach to terrorism.

Before we deal with specific strategy documents, let us first take a look at
different instruments which govern terrorism and related aspects. These
instruments reflect a good understanding of how the counter-terrorism policy has
been shaped under various heads. This part is categorized to make the
understanding clearer. The United Nations Office of Counter-Terrorism4 also lists
down the legal instruments in such a fashion for a better understanding. Since
1963, the 19 international legal instruments5 which have been enacted are being
discussed in brief as follows-

4 https://www.un.org/counterterrorism/international-legal-instruments.
5 These instruments have been developed by the United Nations and the International Atomic Energy Agency
(IAEA).

INSTRUMENTS REGARDING CIVIL AVIATION

1963 Convention on Offences and Certain Other Acts Committed on Board
Aircraft

• Applies to actions affecting in-flight safety;
• Aircraft commander is authorized to impose reasonable measures,

including restraint, on any person if he or she has reason to believe that
a person has committed or is about to commit such an act where it is
necessary to protect the safety of the aircraft; and
• Requires contracting States to take custody of offenders and to return
control of the aircraft to the lawful commander.

1970 Convention for the Suppression of Unlawful Seizure of Aircraft

• The Convention makes it an offence for any person on board an aircraft
in flight to “unlawfully, by force or threat thereof, or any other form of
intimidation, to seize or exercise control of that aircraft” or to attempt to
do so;

• Requires parties to make hijackings punishable by “severe penalties”
under the Convention

• Requires parties that have custody of offenders to either extradite the
offender or submit the case for prosecution; and

• Requires parties to assist each other in connection with criminal
proceedings brought under the Convention.

1971 Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation

• Makes it an offence for any person unlawfully and intentionally to
perform an act of violence against a person on board an aircraft in flight,
if that act is likely to endanger the safety of the aircraft; to place an
explosive device on an aircraft; to attempt such acts; or to be an
accomplice of a person who performs or attempts to perform such acts;

• Requires parties to the Convention to make offences punishable by
"severe penalties"; and

• Requires parties that have custody of offenders to either extradite the
offender or submit the case for prosecution.

1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports
Serving International Civil Aviation, supplementary to the Convention for the
Suppression of Unlawful acts against the Safety of Civil Aviation

• Extends the provisions of the Montreal Convention to encompass
terrorist acts at airports serving international civil aviation

2010 Convention on the Suppression of Unlawful Acts Relating to
International Civil Aviation

• Criminalizes the act of using civil aircraft as a weapon to cause death,
injury or damage;

• Criminalizes the act of using civil aircraft to discharge biological,
chemical and nuclear (BCN) weapons or similar substances to cause

death, injury or damage, or the act of using such substances to attack civil
aircraft;
• Criminalizes the act of unlawful transport of BCN weapons or certain
related material;
• A cyber-attack on air navigation facilities constitutes an offence;
• A threat to commit an offence may be an offence by itself, if the threat
is credible.
• Conspiracy to commit an offence, or its equivalence, is punishable.

2010 Protocol Supplementary to the Convention for the Suppression of
Unlawful Seizure of Aircraft

• Supplements the Convention for the Suppression of Unlawful Seizure of
Aircraft by expanding its scope to cover different forms of aircraft
hijackings, including through modern technological means;

• Incorporates the provisions of Beijing Convention relating to a threat or
conspiracy to commit an offence.

2014 Protocol to Amend the Convention on Offences and Certain Acts
Committed on Board Aircraft

• Entered into force on 1 January, 2020;
• It amends the Convention on Offences and Certain Other Acts Committed

on Board Aircraft, 1963;
• It addresses the issue of rising incidents of unruly and disruptive behaviour

on board aircraft;

• The Protocol also serves to enhance global aviation security provisions by
expressly extending legal recognition and protections to in-flight security
officers.

INSTRUMENT REGARDING THE PROTECTION OF
INTERNATIONAL STAFF

1973 Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons

• Defines an "internationally protected person" as a Head of State,
Minister for Foreign Affairs, representative or official of a State or
international organization who is entitled to special protection in a
foreign State, and his/her family; and

• Requires parties to criminalize and make punishable "by appropriate
penalties which take into account their grave nature" the intentional
murder, kidnapping or other attack upon the person or liberty of an
internationally protected person, a violent attack upon the official
premises, the private accommodations, or the means of transport of such
person; a threat or attempt to commit such an attack; and an act
"constituting participation as an accomplice".

INSTRUMENT REGARDING THE TAKING OF HOSTAGES

1979 International Convention against the Taking of Hostages

• Provides that "any person who seizes or detains and threatens to kill, to
injure, or to continue to detain another person in order to compel a third

party, namely, a State, an international intergovernmental organization,
a natural or juridical person, or a group of persons, to do or abstain from
doing any act as an explicit or implicit condition for the release of the
hostage commits the offence of taking of hostage within the meaning of
this Convention".

INSTRUMENT REGARDING NUCLEAR MATERIAL

1980 Convention on the Physical Protection of Nuclear Material

• Criminalizes the unlawful possession, use, transfer or theft of nuclear
material and threats to use nuclear material to cause death, serious injury
or substantial property damage.

2005 Amendments to the Convention on the Physical Protection of Nuclear
Material

• Makes it legally binding for States Parties to protect nuclear facilities and
material in peaceful domestic use, storage as well as transport; and

• Provides for expanded cooperation between and among States regarding
rapid measures to locate and recover stolen or smuggled nuclear
material, mitigate any radiological consequences or sabotage, and
prevent and combat related offences.

INSTRUMENT REGARDING MARITIME NAVIGATION

1988 Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation

• Establishes a legal regime applicable to acts against international
maritime navigation that is similar to the regimes established for
international aviation; and

• Makes it an offence for a person unlawfully and intentionally to seize or
exercise control over a ship by force, threat, or intimidation; to perform
an act of violence against a person on board a ship if that act is likely to
endanger the safe navigation of the ship; to place a destructive device or
substance aboard a ship; and other acts against the safety of ships.

2005 Protocol to the Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation

• Criminalizes the use of a ship as a device to further an act of terrorism;
• Criminalizes the transport on board a ship various materials knowing

that they are intended to be used to cause, or in a threat to cause, death
or serious injury or damage to further an act of terrorism;
• Criminalizes the transporting on board a ship of persons who have
committed an act of terrorism; and
• Introduces procedures for governing the boarding of a ship believed to
have committed an offence under the Convention.

1988 Protocol for the Suppression of Unlawful Acts Against the Safety of
Fixed Platforms Located on the Continental Shelf

• Establishes a legal regime applicable to acts against fixed platforms on
the continental shelf that is similar to the regimes established against
international aviation.

2005 Protocol to the Protocol for the Suppression of Unlawful Acts Against
the Safety of Fixed Platforms Located on the Continental Shelf

• Adapts the changes to the Convention for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation to the context of fixed
platforms located on the continental shelf.

INSTRUMENT REGARDING EXPLOSIVE MATERIALS

1991 Convention on the Marking of Plastic Explosives for the Purpose of
Detection

• Designed to control and limit the use of unmarked and undetectable
plastic explosives

• Parties are obligated in their respective territories to ensure effective
control over "unmarked" plastic explosive, i.e., those that do not contain
one of the detection agents described in the Technical Annex to the
treaty;

• Each party must, inter alia, take necessary and effective measures to
prohibit and prevent the manufacture of unmarked plastic explosives;
prevent the movement of unmarked plastic explosives into or out of its
territory; exercise strict and effective control over possession and
transfer of unmarked explosives made or imported prior to the entry into

force of the Convention; ensure that all stocks of unmarked explosives
not held by the military or police are destroyed, consumed, marked, or
rendered permanently ineffective within three years; take necessary
measures to ensure that unmarked plastic explosives held by the military
or police are destroyed, consumed, marked or rendered permanently
ineffective within fifteen years; and, ensure the destruction, as soon as
possible, of any unmarked explosives manufactured after the date of
entry into force of the Convention for that State.

INSTRUMENT REGARDING TERRORIST BOMBINGS

1997 International Convention for the Suppression of Terrorist Bombings

• Creates a regime of universal jurisdiction over the unlawful and
intentional use of explosives and other lethal devices in, into, or against
various defined public places with intent to kill or cause serious bodily
injury, or with intent to cause extensive destruction of the public place.

INSTRUMENT REGARDING THE FINANCING OF TERRORISM

1999 International Convention for the Suppression of the Financing of
Terrorism

• Requires parties to take steps to prevent and counteract the financing of
terrorists, whether direct or indirect, through groups claiming to have
charitable, social or cultural goals or which also engage in illicit activities
such as drug trafficking or gun running;

• Commits States to hold those who finance terrorism criminally, civilly
or administratively liable for such acts; and

• Provides for the identification, freezing and seizure of funds allocated
for terrorist activities, as well as for the sharing of the forfeited funds
with other States on a case-by-case basis. Bank secrecy is no longer
adequate justification for refusing to cooperate.

INSTRUMENT REGARDING NUCLEAR TERRORISM

2005 International Convention for the Suppression of Acts of Nuclear
Terrorism

• Covers a broad range of acts and possible targets, including nuclear
power plants and nuclear reactors;

• Covers threats and attempts to commit such crimes or to participate in
them, as an accomplice;

• Stipulates that offenders shall be either extradited or prosecuted;
• Encourages States to cooperate in preventing terrorist attacks by sharing

information and assisting each other in connection with criminal
investigations and extradition proceedings; and
• Deals with both crisis situations (assisting States to solve the situation)
and post-crisis situations (rendering nuclear material safe through the
International Atomic Energy Agency (IAEA).

2.3. UN GENERAL ASSEMBLY GLOBAL COUNTER-TERRORISM
STRATEGY

The United Nationals Global Counter-Terrorism was adopted in 2006 by the
General Assembly in resolution 60/288. It states that terrorism constitutes one of
the most serious threats to international peace and security.

The United Nations Office for Disarmament Affairs is a member of the Counter-
Terrorism Implementation Task Force (CTITF). It works on preventing and
responding to weapons of mass destruction attacks. It is also tasked with
developing a single comprehensive database on biological incidents that is
complimentary to the bio-crimes database contemplated by the International
Criminal Police (INTERPOL).

To understand the counter-terrorism strategy, three important General Assembly
Resolutions are being discussed. The UN General Assembly reviews the UN Global
Counter-Terrorism Strategy every two years, making it a living document attuned to
Member States’ counter-terrorism priorities. The first resolution was adopted in
2006, which is revised and reviewed every two years.

• A/RES/60/288- Adopted by the General Assembly on 8 September, 2006
reiterates its strong condemnation of terrorism in all forms and
manifestations. It also includes measures to ensure respect for human rights
for all and the rule of law as the fundamental basis of the fight against
terrorism.

• A/RES/62/272- Adopted by the General Assembly on 5 September, 2008.
It calls upon the UN entities to continue to facilitate the promotion and
protection of human rights and fundamental freedoms while countering

terrorism. It directed an examination in two years of progress made in the
implementation of the Strategy and for consideration to be given to
updating it to respond to changes.

• A/RES/64/297- Adopted by the General Assembly on 8 September, 2010.
It recognises that all counter-terrorism strategies should be bound by other
principles of international law, in particular, human rights law, refugee law
and international humanitarian law. In addition to promotion and
protection of human rights and fundamental freedoms, it also calls upon to
consider due process and the rule of law while countering terrorism.

The UN comprises of 4 Pillars as stated in its 2006 Resolution6. These are:

• Addressing the conditions conducive to the spread of terrorism;
• Measures to prevent and combat terrorism;
• Measures to build the capacity of states to prevent and combat terrorism

and to strengthen the role of the United Nations system in that regard;
• Measures to ensure respect for human rights for all and the rule of law as

the fundamental basis for the fight against terrorism.

In 2014, the UN while revising its strategy, directed focus towards the victims of
terrorism and their families. It requires member states to have proper support and
assistance to victims and families of victims of terrorism.

Again in 2016, while UN was revising the counter-terrorism strategy, stressed the
importance of the development and maintenance of effective, fair, humane,
transparent and accountable criminal justice systems. It identifies Violent
Extremism, just as terrorism, as a threat to all member states. It also directed focus
towards rights and needs of children as a fundamental basis of any strategy to

6 https://www.un.org/counterterrorism/un-global-counter-terrorism-strategy.

counter terrorism. It also highlighted the importance of women in countering
terrorism and violent extremism. It mandates the integration of gender analysis
on the drivers of radicalization women to terrorism. Further importance has asked
to be given to surveillance systems and interception of personal data with a view
to upholding the right to privacy.

In 2018, the UN General Assembly, while revising its counter-terrorism strategy,
focussed on the following additional points-

• Condemning systematic recruitment and use of children to perpetrate
terrorist attacks

• Condemning abuses committed by terrorist groups against children, like
killing, maiming, abduction, rape, sexual violence etc.

• Essential to address threats posed by narratives used by terrorists to
motivate others or to recruit them

• Develop means to counter terrorist propaganda through the Internet
• Address the problem of crafted narratives which may be based on the

misinterpretation and misrepresentation of religion to justify violence in
particular by exploiting information and communications technologies,
including internet and social media
• To deny terrorist groups safe haven, freedom of operations, movement and
recruitment and financial, material or political support.

The Counter-terrorism strategy was set to be revised in 2020, but due to COVID-
19, the General Assembly had to postpone the seventh biennial review to its
seventy fifth session. The General Assembly will hold a final plenary meeting on
28-29 June 2021 for the review of the Strategy and consider the adoption of a
resolution on this occasion.

2.4. CONCLUSION

From the above discussion, it can be seen that terrorism and its manifestations have
evolved through time and so has the law and strategy to counter terrorism. The legal
instruments at the international level deal with various aspects of terrorism. The law
has not developed in a single comprehensive document but rather, it has evolved to
address specific issues arising out of terrorist acts. The General Assembly
Resolutions provide a great insight into the global approach to counter terrorism.
Starting from 2006, the strategy has evolved to include newer challenges while being
mindful of other international obligations like the ones under international
humanitarian law, human rights law and refugee law. Newer revisions of the counter-
terrorism strategy have directed attention towards evolving threats like violent
extremism, misleading propaganda on social media and via internet. It also highlights
paying extra attention to vulnerable groups like children and women and need for
measures highlighting their concerns in counter-terrorism strategy.
In the next modules, we will discuss the subject with special focus on
maritime/coastal and aviation security.