Module 1

MODULE 1
INTRODUCTION

1.1. INTRODUCTION

'Terrorism strikes at the very heart of everything the United Nations stands for.
It is a global threat to democracy, the rule of law, human rights and stability,

and therefore requires a global response.’
-Secretary-General Kofi Annan

Virtually every corner of the world has felt the human cost of terrorism. Terrorism
clearly has a very real and direct impact on human rights. It has drastic
consequences on life, liberty and integrity of humans as it impacts the enjoyment
of the fundamental right to life. In addition to the impact on individuals, terrorism
also destabilizes Governments and undermines civil society. It jeopardizes peace
and security and threatens social, economic and political development.

Terrorism refers to acts of violence that target civilians in the pursuit of political
or ideological aims. Legally, there is no comprehensive definition of the term yet.
Certain international declarations, resolutions etc. have defined some aspects and
core elements of terrorism time and again.

The Government has a fundamental obligation to protect the security of the nation
and its individuals. This is a basic human right which needs to be enforced by the
State agencies. State is duty-bound to take positive measures to protect its
subjects from acts of terrorism. Bring perpetrators of such acts to justice is also
one of the important obligations of the State.

One of the concerns, as stated by the Office of the United Nations High
Commissioner for Human Rights (OHCHR), is the measures adopted by States
to counter terrorism.1 According to the OHCHR, these measures have posed
serious challenges to human rights and the rule of law in a country. It has been
found that some States engage in ill-treatment and torture to counter terrorism.
Other States have returned terrorist suspects to countries where they face a real
risk of torture or some other human rights violation which violates the
international legal obligation of non-refoulment. OHCHR suggests that respect
for human rights and rule of law must be the bedrock of the global fight against
terrorism. It has suggested that following be taken into account while devising
measures to counter terrorism-

• Address the conditions conducive to the spread of terrorism

• Foster active participation and leadership of civil society

• Condemn and prohibit human rights violations

In this module, we will enter into a discussion of development of law to counter
terrorism. To understand the total impact of the legal regime, both, national and
international, it is imperative to take note of the important developments and the
events that triggered a unified response from the international community. In this
context, we will discuss the international law as applicable through various
international instruments. We will also discuss the domestic law, that is the Indian
law and the obligations of India in terms of its international commitments. We
will summarize the discussion by laying down the scope and structure of this
course.

1 https://www.ohchr.org/documents/publications/factsheet32en.pdf.

Terrorism refers to acts of violence that target civilians in the pursuit of political
or ideological aims. Legally, there is no comprehensive definition of the term yet.
Certain international declarations, resolutions etc. have defined some aspects and
core elements of terrorism time and again.

1.2. IMPORTANT INTERNATIONAL DEVELOPMENTS

Before we delve into specific events and instruments, it is important to take note
of some definitions of terrorism, as given under different instruments. We will
then look into developments pre and post the 9/11 attack to understand how the
law developed in response to major terrorist attacks.

Definitions

In 1994, the General Assembly’s Declaration on Measures to Eliminate
International Terrorism, set out in its resolution 49/60, stated that terrorism
includes “criminal acts intended or calculated to provoke a state of terror in the
general public, a group of persons or particular persons for political purposes”
and that such acts “are in any circumstances unjustifiable, whatever the
considerations of a political, philosophical, ideological, racial, ethnic, religious
or other nature that may be invoked to justify them.”2

The Security Council, in its resolution 1566 (2004), referred to “criminal acts,
including against civilians, committed with the intent to cause death or serious
bodily injury, or taking of hostages, with the purpose to provoke a state of terror
in the general public or in a group of persons or particular persons, intimidate a

2 https://www.ohchr.org/documents/publications/factsheet32en.pdf.

population or compel a Government or an international organization to do or to
abstain from doing any act”.3

Then, the Secretary-General’s High-level Panel on Threats, Challenges and
Change described terrorism as any action that is “intended to cause death or
serious bodily harm to civilians or non-combatants, when the purpose of such an
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 any
act”. This panel lists down a number of key elements while referring to the
definitions contained in the 1999 International Convention for the Suppression of
the Financing of Terrorism and Security Council resolution 1566 (2004).4

International law also provides a definition of terrorism for the specific context
of armed conflict. International Humanitarian Law prohibits ‘acts or threats of
violence the primary purpose of which is to spread terror among the civilian
population’, in international and non-international armed conflict.

Having looked at different definitions, let us understand the role of 9/11 on the
international response to terrorism. The 11 September, 2001 US attack has been
characterised as an act of “international terrorism”. 9/11 brought unprecedented
unity of purpose at the international level regarding need for international efforts
to prevent, punish and combat terrorism. Security Council resolutions imposed a
wide range of obligations on states to prevent and suppress terrorism. The
resolutions work towards ensuring that terrorist acts are established as serious
criminal offences in domestic rules and regulations and that the punishment
reflects the seriousness of the acts. In this context, we will look at the
development under two heads- pre and post 9/11 attack.

3 https://www.ohchr.org/documents/publications/factsheet32en.pdf.
4 See A more secure world: Our shared responsibility (United Nations publication, Sales N° E.05.I.5).

Pre-September 11 Developments

Debates around the definition of terrorism began way back in the 1930s. The 1937
Convention for the Prevention and Punishment of Terrorism defines terrorism as
‘all criminal acts directed against a State and intended or calculated to create state
of terror in the minds of particular persons or a group of persons or the general
public’.5 This definition was contained in Article 2(1) of the Convention,
however, due to difficulties in achieving international consensus on the
definition, the Convention was never adopted.

Later, during the 1960s, the issue of international terrorism continued to be
discussed and conventions were adopted addressing specific facets of terrorism.
However, the renewed impetus was gained in the early seventies with the
happening of two major terrorist attacks- the killing of 28 persons by a Japanese
suicide squad at the Lod airport (Lod Airport Massacre, 1972) and the killing of
17 Israeli athletes at the Munich Olympic Games (Munich Massacre, 1972).

Resultantly, United Nations formed an ad hoc committee in 1972. The committee
was tasked with considering a Draft Comprehensive Convention. This
Committee highlighted the debate around definitional disagreement among
various stakeholders. The point of disagreement was whether ‘national liberation
movements’ should be included or excluded from the definition of terrorism. By
the 1990s, due to shifting global politics6, new hope was rekindled on arriving at
a consensus on a generic definition of terrorism.

5 Article 2(1), Convention for the Prevention and Punishment of Terrorism (Geneva, 1937, never entered into
force), League of Nations Doc. C.546M.383 1937 V.
6 Some of the important events being the end of cold war; end of apartheid; African countries gaining
independence from colonialism; breakthrough in the Middle East.

In 1994, the ‘Declaration on Measures to Eliminate International Terrorism’ was
adopted. Although, this was non-binding, the United Nations General Assembly
subsequently endorsed it in 1995.7 It defined terrorism as ‘criminal acts intended
or calculated to provoke a state of terror in the general public, a group of persons
or particular persons for political purposes’ which, notably, it condemned as ‘in
any circumstances unjustifiable whatever the considerations of a political,
philosophical, ideological, racial, ethnic, religious or other nature’.

Thereafter, in 1996, the General Assembly Resolution 51/210 established an ad
hoc committee to streamline efforts to arrive at a Draft Comprehensive
Convention. Resultantly, the 1999 Convention for the Suppression of Financing
of Terrorism was adopted. It defines terrorism as ‘any act intended to cause death
or serious bodily injury to a civilian, or to any person not taking an active part in
hostilities in a situation of armed conflict, when the purpose of such act, by its
nature of context, is to intimidate a population or to compel a government or an
international organisation to do or to abstain from doing an act’.

Post-September 11 Developments

The turning point at the international level was the 9/11 terrorist attack on the
Twin Towers in the US. This drew international support and unity in the
condemnation of international terrorism. The Security Council called on states to
adopt wide-ranging measures in their municipal laws. The Council also urged
ratification of existing conventions and support for pending conventions. This
strengthened condemnation of terrorist attacks and resulted in extended support
for a global convention.

7 GA Res. 50/53, 11 December 1995, UN Doc. A/RES/50/53 (1995) and GA Res. 51/210, 17 December 1996,
UN Doc. A/RES/51/210 (1996).

Important International Instruments

Some of the important international instruments on various aspects of terrorism
are-

• Convention on Offences and Certain other Acts Committed on Board
Aircraft, 1963 (Tokyo Convention)

• Convention for the Suppression of Unlawful Seizure of Aircraft, 1970
(Hague Hijacking Convention)

• Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation, 1971 (Montreal Convention or Sabotage Convention)

• Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, Including Domestic Agents, 1973 (The
Protection of Diplomats Convention)

• International Convention against the Taking of Hostages, 1979 (The
Hostages Convention)

• Convention on the Physical Protection of Nuclear Material, 1979 (now
renamed as Convention on the Physical Protection of Nuclear Material
and Nuclear Facilities)

• Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation, 1988 (SUA)

• Supplementary Protocol for the Suppression of Unlawful Acts of Violence
at Airports Serving International Civil Aviation, 1988

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

• The Convention on the Marking of Plastic Explosives for the Purpose of
Detection, 1991

• International Convention for the Suppression of Terrorist Bombings, 1997
(Terrorist Bombing Convention)

• International Convention for the Suppression of the Financing of
Terrorism, 1999 (The Terrorist Financing Convention)

• International Convention for the Suppression of Acts of Nuclear
Terrorism, 2005 (The Nuclear Terrorism Convention)

• Convention on the Suppression of Unlawful Acts Relating to International
Civil Aviation, 2010 (The Beijing Convention)

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

Important Regional Instruments

Some important Regional Conventions on terrorism are listed down as follows-

• Arab Convention on the Suppression of Terrorism (Arab Convention),
1998

• Convention of the Organization of the Islamic Conference on Combating
International Terrorism, 1999

• European Convention on the Suppression of Terrorism, 1977

• OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form
of Crimes against Persons and Related Extortion that are of International
Significance, 1971

• OAU Convention on the Prevention and Combating of Terrorism, 1999
• SAARC Regional Convention on Suppression of Terrorism, 1987
• Treaty on Cooperation among States Members of the Commonwealth of

Independent States in Combating Terrorism, 1999

Some of the important offences covered under the International instruments and
Regional instruments are listed down as follows-

• Crimes against civil aviation
• Crimes against shipping or continental platforms
• Crimes against persons
• Crimes involving the use, possession or threatened use of “bombs” or

nuclear materials
• Crimes concerning the financing of terrorism

Without getting into the detailed analysis of the important instruments, let us take
note of some of the important obligations that most of these treaties/conventions
incorporate-

• To incorporate the crimes defined in these instruments into the domestic
criminal law and to make them punishable by sentences that reflect the
gravity of the offence

• To agree to the “universal jurisdiction” over these offences. “Universal
Jurisdiction” refers to the principle of international law that confers on any
nation that has the custody of the perpetrators, the right to prosecute them
for the crimes which are so universally condemned that the perpetrators are
the enemies of all people8

• To grant broad jurisdiction to courts over these offences including
jurisdiction based on territoriality, nationality of the offender or the mere
presence of the offender in the territory of the state

• To accept the obligation to extradite a suspected offender or to begin
criminal proceedings against him

• To co-operate in preventing terrorist attacks
• To co-operate in the investigation and prosecution of relevant offences
• Most of the treaties also focus on the protection of human rights. These

may include general provisions indicating the obligations of the state party,
provisions concerning the right of accused or detained persons to due
process, and provisions regarding extradition and transfer of prisoners
1.3. TERRORISM AND OTHER ASPECTS OF INTERNATIONAL
LAW

After having looked into various international and regional instruments
governing various aspects of terrorism, it is important to discuss how terrorism
or the legal regime regarding prevention and punishment of terrorist attacks

8 See The Paquete Habana, 175 U.S. 667, 712 (1900) and Demjanjuk v. Petrovsky, 1982, 776 F.2d 571.

reflect upon other fields of international law. There could be no disagreement on
the proposition that no academic or practical discourse stays in isolation. Even
though there are multiple instruments, both internationally and regionally, total
impact of any kind of malicious act, particularly terrorism, cannot be fully
understood without analysing various related fields. In this section, we will see
how terrorism/terrorist activities or even counter-terrorism, have a bearing on
other fields of international law. We will particularly be focussing on the
following points-

1. Terrorism and International Humanitarian Law

2. Terrorism and International Human Rights Law

3. Terrorism and International Criminal Law

4. Terrorism and International Refugee Law

Terrorism and International Humanitarian Law

International humanitarian law and international human rights law are two
distinct but complementary bodies of law. They are both concerned with the
protection of the life, health and dignity of individuals. While the international
humanitarian law applies exclusively in armed conflict, human rights law is made
applicable at all times, i.e. in peacetime and during armed conflict.

In the recent times, it has been noticed that there has been a rise of non-State
armed groups resorting to acts of terrorism. There is also the subsequent rallying
of a number of other non-State armed groups around them. The international
community and municipal laws have reacted to these developments by tightening
the existing laws by introducing new ones. Undoubtedly, it is legitimate to take
responsive actions in the form of counterterrorism measures and legislation to
ensure security of the State. However, while doing so, it is indispensable to

maintain the safeguards protecting human life and dignity as laid down in the
international humanitarian law and international human rights law.

International humanitarian law contains provisions which expressly prohibits acts
of terrorism. Article 33 of the Fourth Geneva Convention provides in part-

Collective penalties and likewise all measures of intimidation or of
terrorism are prohibited.

Article 51(2) of Protocol I on international armed conflict and 13(2) of Protocol
II on non-international armed conflict provide in part that-

Acts or threats of violence the primary purpose of which is to spread terror
among the civilian population are prohibited.

Article 4(2) of Additional Protocol II provides that ‘‘acts of terrorism’’ against
civilians and non-combatants ‘‘are and shall remain prohibited at any time and in
any place whatsoever’’.

International humanitarian law also has certain provisions which prohibits certain
acts without specifically referring to the term “terrorism”.

Four of the treaties against terrorism, i.e.–
• The 1979 Convention against hostage-taking,
• The 1997 Convention against terrorist bombings,
• The 1999 Convention against the financing of terrorism and
• The 2005 Convention against nuclear terrorism

contain provisions referring to international humanitarian law, or to concepts
derived from it. Most of such provisions are exclusionary clauses which are

specifically designed to ensure that acts which come within the scope of both
international humanitarian law and international law against terrorism are
governed by one or the other.9

The legal framework governing terrorism and international humanitarian law
may have some similar grounds. International humanitarian law expressly
prohibits most acts that are classified as “terrorist” in international conventions
and domestic legislation. Apart from this, the two legal regimes are
fundamentally different. The two regimes have distinct rationales, objectives and
structures.

One primary difference between IHL and law on terrorism is that armed conflict
is a situation in which certain acts of violence are considered lawful and other are
unlawful, while any act of violence designated as “terrorist” is always unlawful.

Terrorism and International Human Rights Law

International human rights law is contained in a number of core international
human rights treaties and in customary international law. Human rights law
obligates states to do certain things and prevents them from doing others. States
are under an obligation to respect, protect and fulfil human rights. States are
required to adopt appropriate measures, including legislative, judicial,
administrative or educative measures.

Terrorism targets humans rights, democracy and the rule of law. It attacks the
constitutional values and the values underlying important international

9 https://www.corteidh.or.cr/tablas/a21937.pdf.

instruments. Terrorism has a direct impact on the enjoyment of human rights. It
particularly impacts right to life, liberty and physical integrity.

Acts of terrorism impact the human rights regime in the following ways-

• Threatens the dignity and security of human beings
• Has an adverse effect on the establishment of the rule of law
• Has links with transnational organized crime, drug trafficking, money-

laundering and trafficking in arms
• Has adverse consequences on social and economic development of States
• Threatens the territorial integrity and security of States

Effective counter-terrorism measures and respect for the rule of law and human
rights is part of the duty of States to protect individuals within their jurisdiction.
The United Nations Global Counter-Terrorism Strategy reinforces the importance
of respect for human rights in any effective counter-terrorism strategy. It has, in
fact, dedicated one of the four pillars of its Plan of Action to “Measures to ensure
respect for human rights for all and the rule of law as the fundamental basis of
the fight against terrorism”.10

Terrorism and International Criminal Law

Over the course of time, the United Nations has developed over 13 conventions
relating to the prevention and suppression of terrorism. These address various
issues ranging from unlawful seizure of aircraft to providing for a framework for

10 https://www.unodc.org/unodc/en/terrorism/news-and-events/human-rights-while-countering-terrorism.html.

international cooperation. These instruments require States to take specific
measures to prevent the commission of terrorist acts and prohibit terrorist-related
offences. It obligates States to criminalize specific acts, conduct and to establish
certain jurisdictional criteria (including the well-known principle of aut dedere
aut judicare or “extradite or prosecute”). Depending on the context in which
terrorist acts occur, they may also constitute crimes under international criminal
law. The provisions in the international criminal law against terrorism have also
been addressed in practice by international tribunals.

Terrorism and International Refugee Law

International refugee law is the body of law which provides a specific legal
framework for the protection of refugees. It lays down the obligations of the State
in establishing standards for the treatment of refugees. It also relates to persons
seeking asylum.

With regard to terrorism and measures taken to counter it, the 1951 Refugee
Convention incorporates a system of checks and balances that takes full account
of the security interests of States and host communities while protecting the rights
of persons who, unlike other categories of foreigners, no longer enjoy the
protection of their country of origin. The Convention also has provisions to
ensure that international refugee protection is not extended to those who have
induced, facilitated or perpetrated terrorist acts.11

However, it is important to note that counter-terrorism and national security
measures taken by States, in some cases, impact the refugee protection regime
adversely. These include-

11 https://www.ohchr.org/documents/publications/factsheet32en.pdf.

• Unduly restrictive legislative, administrative and regulatory measures
• Lack of access to asylum procedures
• “Criminalization” of refugees and asylum-seekers, which negatively

impacts public perception
1.4. INDIAN MUNICIPAL LAW

Terrorism in India, like any other part of the world, poses a significant threat to
the people of India. The 26/11 Mumbai terror attack, the 2001 attack on the Indian
Parliament and various others remain etched in the history of India. The Unlawful
Activities Prevention Act was amended significantly in 2008 as a direct response
to the 26/11 terrorist attack. India also has various international obligations in
addition to its robust legal regime.

In the previous sections, we have briefly discussed the meaning of terrorism, as
internationally defined and various instruments relating to governance of various
aspects of terrorism. Having discussed the basic international position, let us now
take a look at the Indian law. In this part, we will briefly look at the list of
legislations dealing with terrorism in India. In the next modules, we will deal with
particularly applicable laws and their content, both national and international, as
per the scope of discussion.

A “terrorist act” has been defined in Section 15 of the Unlawful Activities
Prevention Act as-

Whoever does any act with intent to threaten or likely to threaten the unity,
integrity, security, economic security, or sovereignty of India or with intent

to strike terror or likely to strike terror in the people or any section of the
people in India or in any foreign country,—
1. by using bombs, dynamite or other explosive substances or inflammable

substances or firearms or other lethal weapons or poisonous or noxious
gases or other chemicals or by any other substances (whether
biological radioactive, nuclear or otherwise) of a hazardous nature or
by any other means of whatever nature to cause or likely to cause—
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the
community in India or in any foreign country; or
(iiia) damage to, the monetary stability of India by way of production
or smuggling or circulation of high quality counterfeit Indian paper
currency, coin or of any other material; or
(iv) damage or destruction of any property in India or in a foreign
country used or intended to be used for the defence of India or in
connection with any other purposes of the Government of India, any
State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force
or attempts to do so or causes death of any public functionary or
attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure
such person or does any other act in order to compel the Government
of India, any State Government or the Government of a foreign country
or an international or inter-governmental organisation or any other
person to do or abstain from doing any act; or commits a terrorist act.
Explanation.—For the purpose of this sub-section,—

(a) “public functionary” means the constitutional authorities or any
other functionary notified in the Official Gazette by the Central
Government as public functionary;
(b) “high quality counterfeit Indian currency” means the counterfeit
currency as may be declared after examination by an authorised or
notified forensic authority that such currency imitates or compromises
with the key security features as specified in the Third Schedule.
(2) The terrorist act includes an act which constitutes an offence within
the scope of, and as defined in any of the treaties specified in the Second
Schedule.

We will first take a look at the legislations which are no longer in force on the
subject. They are-

• Terrorist Affected Area (Special Courts) Act, 1984
• National Security Act, 1980
• The Terrorist and Disruptive Activities Act, 1985 (TADA)
• The Prevention of Terrorism Act, 2002 (POTA)

The laws that are currently applicable are-

• The Indian Penal Code, 1860 (IPC)
• The National Investigation Agency Act, 2008
• The Unlawful Activities Prevention Act, 1967 (UAPA)
• The Unlawful Activities Prevention (Amendment) Act, 2008

• Information Technology Act, 2000 (IT Act)

1.5. CONCLUSION

In this module, we have entered into an introductory discussion of law relating to
preventing, curbing and punishing terrorism/terrorist acts. The severity of the
crime of terrorism and its impact on the economic, social and political growth is
immeasurable. We have also seen how various other aspects like humanitarian
law, human rights law and refugee law are connected with the impact and effects
of terrorism. We have also briefly seen the Indian law governing the subject. In
the coming modules, we will be narrowing down our discussion to three
important aspects- Counter-terrorism, Coastal Security and terrorism and
Aviation Security and terrorism.