Use and misuse of international laws

Non-ratification of ‘Saarc Convention on Mutual Legal Assistance Treaty, 2008’ shows the extreme lack of will to address terrorism

By Author  |  Prof V Balakista Reddy  |  Published: 4th Mar 2019  12:05 amUpdated: 3rd Mar 2019  9:41 pm

The return of Wing Commander Abhinandan Varthaman after almost 60 hours in the captivity of Pakistan is a major diplomatic victory for India. The gesture of Pakistan’s Prime Minister Imran Khan seems to have created a situation for de-escalation of military activity on both sides.

Concerns and tensions between nuclear-armed neighbours India and Pakistan rose in the aftermath of the Pulwama incident, wherein some 40 CRPF personnel were killed by a suicide bomber. The Pulwama incident, which Pakistan-based militant group Jaish-e-Mohammad took responsibility for, was followed by the Balakot airstrike and a brief India-Pakistan air skirmish.

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These events have raised serious concerns on the use and misuse of the provisions of international laws, particularly the provisions of the United Nations Charter on Self Defence and the Geneva Conventions on Prisoners of War (PoW) and law relating to acts of terrorism. Here’s the role of international laws in the ongoing conflict and acts of terrorism:

Right to Self-Defence

International law grants nation states an inherent right to self-defence. Article 51 of the United Nations Charter deals with the issue of self-defence under international law. Indian fighter jets entering Pakistani territory and bombing alleged terrorist training camps falls under the right of self-defence. The airstrikes took place after 13 days of the Pulwama attack.

The action was referred to as a “non-military pre-emptive strike” by the Indian government. The phrase is interpreted as an action based on an assessment of an imminent threat. India ensured that the military and civilian infrastructure of Pakistan was not targeted, and civilian casualties were carefully avoided.

It was an intelligence-driven counter-terror strike rather than escalatory military aggression. The government justified the operation in the wake of Pakistan failure in curbing the activities of terrorist groups like JeM, al-Qaeda, Lashkar-e-Taiba, among others, which have been operating from Pakistan for several decades.

On Acts of Terrorism

The legal basis for action against international terrorism is provided by some of the fundamental principles of international law, namely, sovereign equality, prohibition of force, non-intervention and respect of human rights. In International law, the duty of a State is to take steps and prevent within its borders terrorist activities directed against foreign states.

Such a duty was enshrined in the Draft Declaration on the Rights and Duties of States 1949 and in Friendly Relations Declaration of 1970. The International Convention for the Suppression of Terrorist Bombings (Terrorist Bombing Convention, 1997) 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 an intent to kill or cause serious bodily injury, or with an intent to cause extensive destruction of the public place.

The International Convention for the Suppression of the Financing of Terrorism (Terrorist Financing Convention), 1999, requires parties to take steps to prevent and counteract the financing of terrorists, whether direct or indirect.
The convention also imposes criminal and civil/administrative liabilities.

After 9/11

In the aftermath of 9/11 terror attacks in the United States, the United Nations Security Council, between 2001 and 2005, unanimously adopted several resolutions, including the establishment of the Counter Terrorism Committee (CTC) in 2001 which obliges all states not to support terrorist activities and also deny financial support and safe haven to terrorists and share information about groups planning terrorist attacks.

Seeking to revitalise the Committee’s work, in 2004 the Security Council adopted resolution 1535, establishing the Counter-Terrorism Committee Executive Directorate (CTED) to provide the CTC with expert advice on all areas covered by resolution 1373.

In South Asia, we have the Saarc Regional Convention on Suppression of Terrorism, 1987. Despite several efforts of regional regulation, terrorist activities in the Saarc region are growing rapidly. There is consensus-ad-idem in the general intelligentsia as well as international political circles that Pakistan is the hotbed of terrorism in South Asia.

PoW & Geneva Conventions

The Geneva Conventions are a series of treaties concluded between 1864 and 1949 in Geneva for the purpose of ameliorating effects of war on soldiers and civilians. The Geneva Conventions and its additional protocols are International Treaties, which contain the most significant rules limiting the barbaric effects of war. It protects people, who do not take part in the fight, ie, civilians, medics, aid-workers etc, and also who cannot fight any longer, ie, wounded, sick, prisoners of war and shipwrecked troops.

Though Wing Commander Abhinandan Varthaman, who was in Pakistan’s custody, was officially not declared as a PoW, the conventions definitely applied to him. While Pakistan called his handing over a peace gesture, it is the pressure of the Geneva Conventions that compelled the country to return him safely to India.

However, India strongly objected to Pakistan’s vulgar display of the injured personnel of the Indian Air Force in violation of all norms of international humanitarian law and the Geneva Conventions (Article 13). In its statement, the Indian government said, “India also strongly objected to it and it was made clear that Pakistan would be well advised to ensure that no harm comes to the Indian defence personnel in its custody.”

Setbacks

The Pulwama attack once again proves that Pakistan is a conflict-torn nation that acts as a ‘safe haven’ for mushrooming terrorist activities, which are aided by its military establishment. The activities of the JeM, al-Qaeda, Lashkar-e-Taiba or the Taliban, particularly in Afghanistan and Pakistan, prove it. Moreover, there has been an extreme lack of political will to actively address terrorism issues, which is evident from the non-ratification of the ‘Saarc Convention on Mutual Legal Assistance Treaty, 2008’.

Another level of setback comes from the lack of coordination and effective sharing of information and intelligentsia through a unified common database among security agencies of the various member nations of Saarc. It is further buttressed by the absence of a nodal regional agency to exclusively deal with the issues of counter-terrorism and bring in the required cooperation from the stakeholders.

One can only hope, though it may be hoping against hope, that the Pakistan government under the leadership of Imran Khan walks the talk on the peace initiatives and takes concrete actions to bring lasting peace to the sub-continent.

(The author is Registrar and Head, Center for Aerospace and Defence Laws, Nalsar University of Law, Hyderabad)