International terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security. The United Nations has repeatedly condemned it in strongest terms and has taken a gamut of steps to curb this growing menace. Defining the term ‘International Terrorism’ has been controversial. There has been a plethora of UN conventions dealing with certain aspects of terrorism, like the 1997 International Convention for the Suppression of Terrorist Bombings, 1999 International Convention for the Suppression of the Financing of Terrorism, 2005 International Convention for the Suppression of Acts of Nuclear Terrorism, 1979 International Convention against the Taking of Hostages, 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, 1970 Convention for the Suppression of Unlawful Seizure of Aircraft and 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation.

The International Convention for the Suppression of the Financing of Terrorism (1999) provides a clear definition of terrorism, which includes the elements of (i) a criminal act (ii) intended to intimidate a population or compel an authority, and is limited to those crimes containing (iii) a transnational aspect.

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The Special Tribunal for Lebanon in Interlocutory Decision on the Applicable Law (2011) held that a customary rule of international law regarding the international crime of terrorism has already emerged. The tribunal after discussing UN treaties, resolutions, and the judicial practice of various States held that this customary rule has the following three requirements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element. In coming to this conclusion, it noted certain judgments like Suresh v. Canada (Minister of Citizenship and Immigration)(Supreme Court of Canada, 2002), Bouyahia Maher Ben Abdelaziz et al. (Italian Supreme Court of Cassation, 2007).

Recently the United States of America has taken some legislative and executive steps to curb terrorism which have serious international ramifications. Primary among them are the Terrorism Risk Insurance Act of 2002, President Obama’s Executive Order No. 13599, the Iran Threat Reduction and Syria Human Rights Act of 2012 and the recently promulagated, but highly controversial, Justice Against Sponsors of Terrorism Act (JASTA). The Congress overrode Obama’s veto to enact JASTA in September 2016 which further limited the scope of foreign sovereign immunity.

JASTA allowed victims of the September 11 attacks and their relatives to sue the Saudi government for allegedly aiding the hijackers by waiving sovereign immunity protections for Saudi Arabia. JASTA declares that a foreign state shall not be immune from the jurisdiction of the courts of the United States in any case where money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by (1) an act of international terrorism in the United States; and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.

It further allows a national of the United States to bring a claim against a foreign state if the foreign state loses its immunity under the Act. Even the United States Supreme Court in Bank Markazi, aka Central Bank of Iran v. Deborah Peterson, et al.(April, 2016) held that American nationals may seek money damages from state sponsors of terrorism in the courts of the United States thus effectively applying of the terrorism exception to sovereign immunity. The terrorism exception was introduced to the Foreign Sovereign Immunities Act of 1976 by an amendment made in 1996, and later revised in 2008.

On 17 January, the UK Supreme Court delivered three landmark judgments dealing with claims alleging wrongful acts by the UK while fighting international terrorism (Belhaj & Rahmatullah (No.1) v. Straw & Ors (2017) UKSC 3, Rahmatullah (No.2) & Mohammed v. Ministry of Defence and Anr. (2017) UKSC 1, Abd Ali Hameed Al-Waheed & Serdar Mohammed v. Ministry of Defence (2017) UKSC 2).

In Belhaj & Rahmatullah No.1 judgment the Supreme Court held that the claim against the United Kingdom for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine, but in Mohammed & Rahmatullah the Supreme Court held that the Government cannot be liable in tort for acts of an inherently governmental nature in the conduct of foreign military operations by the Government.

Even regionally, there have been various conventions against terrorism like the Council Framework Decision on Combating Terrorism (Council of the European Union, 2002 & 2008), Council of Europe Convention on the Prevention of Terrorism (2005), the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism (2015), Treaty on Cooperation among the States Members of the Commonwealth of Independent States in Combating Terrorism (Commonwealth of Independent States, 1999), Convention of the Cooperation Council for the Arab States of the Gulf on Combating Terrorism (Cooperation Council for the Arab States of the Gulf, 2004), Convention on the Prevention and Combating of Terrorism (Organization of African Unity, 1999), Arab Convention for the Suppression of Terrorism (League of Arab States, 1998), Shanghai Convention on Combating Terrorism, Separatism and Extremism (Shanghai Cooperation Organization, 2001) and Convention of the Organisation of the Islamic Conference on Combating International Terrorism (Organisation of the Islamic Conference,1999).

The United Nations has branded every act of terrorism as criminal and unjustifiable regardless of the motivations. It has on numerous occasions resolved to tackle terrorism through various means. In the Declaration on Measures to Eliminate International Terrorism, annexed to General Assembly resolution 49/60 of 9 December 1994, the Members of the United Nations reaffirmed their unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed, including those which jeopardize the friendly relations among States and peoples and threaten the territorial integrity and security of States. The States were also encouraged to review urgently the scope of the existing international legal provisions on the prevention, repression and elimination of terrorism in all its forms and manifestations, with the aim of ensuring that there is a comprehensive legal framework covering all aspects of the matter.

A supplement to the 1994 Declaration, in 1996, further decided to establish an Ad Hoc Committee, open to all States Members of the United Nations or members of specialized agencies or of the International Atomic Energy Agency, to elaborate an international convention for the suppression of terrorist bombings and, subsequently, an international convention for the suppression of acts of nuclear terrorism, to supplement related existing international instruments, and thereafter to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism.

The Counter-Terrorism Committee (CTC), comprising of all fifteen Security Council members, was established by Security Council resolution 1373 (2001) post the 9/11 attacks. The Security Council resolution 1373 (2001) called on States to prevent and suppress the financing of terrorism, inter alia, by criminalising the collection and provision of funds for terrorist purposes, and urged them to set up effective mechanisms to freeze funds and other financial assets of persons involved in or associated with terrorism, as well as to prevent those funds from being made available to terrorists.

The Counter-Terrorism Committee is charged with the effective implementation of SCR 1373 which include taking steps such as deny all forms of financial support for terrorist groups, criminalize the financing of terrorism, freeze without delay any funds related to persons involved in acts of terrorism, suppress the provision of safe haven, sustenance or support for terrorists and criminalize active and passive assistance for terrorism in domestic law and bring violators to justice.

Resolution 1624 (2005) has been another prominent step towards combating terrorism calling on UN Member States to prohibit incitement to commit acts of terrorism, by law and prevent such conduct and also to deny safe haven to anyone who is suspected of guilty of such conduct.

Again on the growing threat posed by foreign terrorist fighters (FTFs), the Security Council in 2014 unanimously adopted the momentous resolution 2178. To counter the growing challenge of violent extremism, the UN Secretary General presented to the General Assembly, in 2016, a Plan of Action to Prevent Violent Extremism (PVE).

The Financial Action Task Force (FATF) is another influential inter-governmental body whose objectives are to set standards and promote effective implementation of legal, regulatory and operational measures for combating terrorist financing, money laundering and other related threats to the integrity of the international financial system. It has also developed detailed recommendations on countering terrorism financing.

The United Nations Charter specifically mandates that all Members will refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with its purposes (Article 2(4)). The use of force by any country outside its territories against terrorism is a vexed issue. Only the Security Council can determine the existence of any threat to the peace, breach of the peace, or act of aggression and can make recommendations, or decide what measures are be taken to maintain or restore international peace and security. Article 42 of the United Nations Charter empowers the Security Council to take action by air, sea, or land forces as may be necessary to maintain or restore international peace and security and it can include demonstrations, blockade, and other operations by air, sea, or land forces of the member states.

Though Article 51 of the Charter states that nothing in the Charter will impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security, yet this right has its own limitations. In the Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA) (1986) the International Court of Justice (ICJ) observed that the right of self defence is pre-existing customary international law and ‘armed attack’ included the sending by or on behalf of a State of armed bands, groups, irregulars or even mercenaries. The limitations of using this right include the force used to be necessary as well as proportionate.

The ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) and in the Case concerning Oil Platforms (Islamic Republic of Iran v. USA) (2003) has applied a restrictive approach to this right. But recently the United States and certain other states has used force in other countries against terrorism relying on this right of self defence. Operation Enduring Freedom by the United States in Afghanistan is an instance.

pre-emptive self defence is now being sought to be used in certain situations which has received acceptance from international community too. Even large-scale attacks by non-State actors (terrorists) can qualify as “armed attacks” within the meaning of Article 51 thus triggering the use of force. Thus the war against international terrorism is being fought through various means and the United Nations, through its instrumentalities, has been proactively dealing with this peril.

The writers are Mumbai-based advocates and legal consultants.