TISB MUN IV - Background GuideGeneral Assembly VI: Legal Committee

Topic A: Legality of measures to eliminate international terrorism

Author: Manas Kohli

Introduction

The origins of the use of the word ‘terrorism’ can be traced to the cold war. During the ideological conflict, the label of terrorism served as an ideological weapon to selectively condemn specified theatres of terrorism, but not others. The Palestinians were terrorists, in the eyes of Israel and the USA but were freedom fighters in the eyes of many others, including the Soviet Union. By contrast, the Afghans were portrayed as freedom fighters in the Western press but were seen as terrorists in the Soviet Union. These conflicting characterizations of the same phenomenon frustrated the attempts to define terrorism on a consensual basis. The collapse of the Soviet Union transformed the narrative of terrorism. Ideological battles lost their inherent utility and the notion of violence perpetrated for a higher ideological cause began to disappear.

The emergence of the USA as the sole superpower was received as good news in most parts of the world. The USA led a coalition of European states to save Bosnian Muslims from Serbian brutalities and it engaged Palestinians and Israelis in a credible peace process.

However, this engaging US leadership collapsed after the September 11 attacks. The Patriot Act dramatically reduced civil liberties and the invasion of Afghanistan and Iraq began to unravel American commitment to the laws of war. The ill treatment and torture of Iraqi detainees exposed the inefficacy of human rights laws to restrain a superpower from unlawful behaviour. The September 11 attacks have exposed how the US, a nation of freedoms and liberties, threw away its hard-earned rights and values and began to see these laws as a hindrance.

Under President Bush a new paradigm began to emerge in the western world that Islamic militancy derives its unrelenting impulse for violence from the Muslim faith itself. It was opined that Islamic terrorism is unique and that it has nothing to do with concrete grievances, such as invasions, occupations, or human rights abuses. The September 11 attacks were interpreted as proof certain that Muslim militants would strike any nation to quench their thirst for violence. The Bush Administration argues that Muslim militants are inherently evil. They describe these phenomena as “new terrorism”. Heartless Muslim militants, these experts warn, would use the weapons of mass destruction to annihilate Western cities. They further argue the Islamic terrorism is essentialist and imperial in its purpose. The militants are painted as incorrigible warriors in pursuit of martyrdom and glory in other world, who have no respect for life, property, or liberty. It is then proposed that they and their supporters be treated mercilessly and wiped out. Extra-judicial killings and indefinite detention without any charges or trial are defended on the theory that Muslim militants must be eliminated or disabled without concerns for the rule of law. Turning the September 11 attacks into a unique opportunity, the US has mobilized international institutions, including the United Nations, to wage a coordinated campaign against Muslim militants. The UN Security Council is emerging as a lead an institution in the war on terror, primarily because the Council’s five permanent members share the fears of Muslim militancy.

Definition of Terrorism

Most scholars define terrorism as a phenomenon with four defining characteristics. First is the threat or use of violence. Terrorism is classified as political violence, thus the threat or use of violence is essential to an act being considered terrorism.

Second, in terrorism, violence is used for political purpose; terrorists conduct violence in order to alter political outcomes.

Third, terrorism is the use or exploitation of fear. Terrorist groups seek to harness fear in order to affect or control the actions of others—whether the state, or the general population.

Finally, terrorism targets civilian non-combatants to achieve its purpose.

Democracies and War against Terrorism

On numerous occasions, democratic nations have been singled out by human rights NGOs for the brutality of their modus operandi, for their inadequate attention to the protection of civilian populations, or for acts of abuse or torture on prisoners. The question we should consider: can democracies combat irregular armed groups without violating international law?

According to Stanley Hoffmann this type of war “inevitably produces war crimes.” Hoffmann maintains that democracies only have the choice between abstaining from war altogether or committing war crimes. He points to problems faced by Israel in Palestine, India in Kashmir or Americans in Afghanistan and Iraq.

Such war crimes situations arise out of “asymmetric warfare.” War against terrorism is fundamentally different from traditional armed conflicts that pit two armies against one another, far from civilian populations. For the terrorists, the battleground is the civilian hinterland and not the military front. The modus operandi of armed groups involves acting under the guise of civilians or using the population as human shields. They generally operate from within cities and its inhabited buildings. They may use women and adolescents as suicide bombers, thus making the entire population suspect. This strategy aims to provoke the army to fire on civilians, thus allowing the guerrilla to accuse democracies of lacking humanity and engendering sympathy as well as support. “Asymmetrical strategies,” Jacques Baud notes, “do not aims to maximize violence, but to inflict ‘just enough’ pain to produce an ‘overreaction,’ by playing with imagery and emotional impact. Combat can then be transferred to a different field from the one where the action occurs (e.g. terrorists could attack America for the crimes committed in Afghanistan or Iraq). ” If terrorists manage to provoke disproportionate reactions, massacres, or other atrocities, they will have won the game by demonstrating the oppressor’s lack of humanity, thereby justifying armed attacks against its population.

When confronted with acts of terrorism, all countries have the right and the duty to protect their citizens. Their duty is more pressing in a democracy, where the leaders are held accountable to the

citizens they represent. This almost always causes democracies to overreact, as if their very survival were in jeopardy. Leaders tend to exaggerate and distort the facts to arouse patriotic fervour. September 11 has been compared to Pearl Harbour, even if Al Qaeda did not have the power and the means of destruction and domination of imperial Japan.

The Boston Marathon bombing is another good example of such overreaction. The major police operation conducted by authorities virtually shut down the entire area. While authorities were successful in neutralizing the threat, doubts were raised concerning the scale of operation. Didn't the operation itself exactly contributed what the terrorists wanted, spread fear?

This is also true that most democracies have allowed themselves certain human rights violations. The dominant reflex of democracies is not to allow its hands to be tied by international law, which does not offer sufficient protection against attacks from formations that disregard this same body of law. Moreover, those responsible for a country’s security have to manage the problem of their credibility vis-à-vis armed groups. Acting in strict observance of international law would amount to sending the wrong message to terrorists; it would be a sign of weakness and would run the risk of encouraging further attacks. In dealing with irregular combatants, they must, on the contrary, show their determination and not allow themselves to be fettered by ethical considerations. By accepting to wage battle in populated civilian areas or by dealing roughly with prisoners, they convey a political message to armed groups: “We won’t be paralyzed by the rules of international law; we won’t hesitate to use illegal means to fight you; we won’t let you use civilian neighbourhoods as human shield; we will not be deprived of our right to self-defence.”

This leads to scenario is one in which human rights violations are organized or permitted by political leaders: brutal treatment of prisoners, torture, and abuse. The only way to dismantle armed groups is to collect intelligence and it is believed that the only way to gather intelligence is through a little coercion. Survival of democratic institutions is placed above the law. In exceptional circumstances, the main argument all democracies invoke is that of “necessity.” Ultimately no state really honours the Geneva conventions!

Rules of Combat

The other legal issue faced by democracies is the “right of self defence”. Even though this right is enshrined in article 51 of the Charter of the United Nations, it is limited by principle of discernment and proportionality. The response of state has to be against the actors who have caused the damage and in proportion to what the damage was inflicted. Both of these limitations are hard to follow because sometime it may be difficult to know who attacked and where to locate the enemy to inflict the damage. The rules of war are based on the principle of reciprocity. But in the case of asymmetric conflict, armed groups do not respect or even acknowledge these rules.

So what are the practical choices for democratic nations? They have the choice between two unsatisfactory solutions: either strictly observe the norms laid down by international conventions in combating armed groups, which bans them from entering inhabited areas, or conducting house searches to look for arms caches and activists. This either means accepting their cities are a

sanctuary for such terrorists groups and admitting defeat beforehand, or be willing to combat in an urban environment that armed groups use as a shield. This sometime entails the risk of losing control of the situation and provoking a chain of perverse effects: increased popular support for the combatants, international protests delegitimizing the fight, protest within one’s own public opinion. This is the problem Americans faced in Fallujah and sometime Indian armed forces have faced in Kashmir. The democracies have always chosen the second option, of facing the combatants at the risk of causing harm to the civilian population. But such harm is not necessarily intentional or deliberate, and does not necessarily come under the category of war crimes.

A democracy is judged by its capacity to contain illegal behaviour on the part of its security institutions while fighting such asymmetric wars. A democracy should not only defend its values. It also, and above all, has the duty to fight intelligently without playing into the hands of the adversary, thereby preserving the chance for an end to hostilities and the negotiation of a political solution.

Ways to deal with terrorism

There have been several ways to deal with terrorism and democracies have used such means to varying degrees of success. These include:

1. Torturing of criminals such as in Guantanamo Bay2. Targeted Killings including the use of drone warfare3. Surveillance and infringements of privacy4. Use of force against other states known to harbour terrorists

This list is by no means exhaustive and it is encouraged to research about more methods to counter terrorism but these are the major ones discussed and debated.

1. Guantanamo BayUnited States has been engaged in interrogation techniques and detention policies that stand in contrast to the standard legal conventions that had governed such practices since the end of World War II. By creating detention facilities at Guantanamo Bay in Cuba, the United States argued it could hold suspected terrorists indefinitely and without recourse to appeals procedures.

The experts have questioned both the legality (The US has signed the United Nation Convention against Torture and is thus obligated to prevent torture in its country) and efficacy of such prison and subsequently question the need to break international law.

Human rights groups have also criticised US for interrogation methods used at this prison. These methods include water-boarding and sleep deprivation. According to these groups these methods amount to torture, thus violation various regulations and humanitarian laws.

2. Targeted Killings and dronesThe target killings are killings of individuals by government without prior legal procedure and outside the field of battle. These kinds of killings were once the staple of military and communist dictators to

take out their opponents. Such regimes were heavily criticised by West for their brutal suppression of individual’s rights and freedoms.

The killings of Osama Bin Laden in Pakistan and Anwar al-Awlaki, a US citizen in Yemen, highlighted change in West’s attitude about target killings and showed the extent of global reach of war on terror. Apparently US Presidents have a ‘kill list’ of individuals who could be ordered killed at their discretion. To accomplish the tasks US may use Unmanned Aerial Vehicles (drones) or send in highly trained Army Seals, in each case violating the sovereignty of nations and breaking every rule of due process.

From legal standpoint these killings are obviously highly controversial. They are directed against citizens of various countries, they could be residing in different places and laws of multiple countries are broken in the process. The individuals killed are of course denied due process of defence.

In cases involving drones, there is additional problem that they frequently lead to death of innocent bystanders and destruction of property. But from American perspective drones are highly effective in killing and involve no harm to their own soldiers.

As long as American Presidents rely on kill lists such targeted killings will happen. These methods are illegal in nature but they are used so frequently by US that there should be more debate on their use.

3. Surveillance programIntelligence gathering is the most potent weapon democracies have for protecting their citizens. If intelligence agencies can gather data on terrorist’s leadership, their plans, and target area they then can help security agencies effectively thwart terrorist acts before they materialise. No democratic leader who is sworn to defend his citizens would pass such an opportunity. Even though such acts would violate individual privacy, most people would trade their privacy for safety. And particularly citizens are least concerned about protecting the privacy of foreigners, who are looked at suspiciously by them anyway. Under such circumstances it is no surprise that pre-eminent security agency in US (NSA) launched PRISM program in 2007. This program allows NSA to monitor more than 90% of internet traffic. US government has given legal right to this agency to obtain and record internet traffic of any person in the world without the knowledge of person being monitored. Later through leaks by Snowden it was revealed that US was not only using this program to spy on internet traffic generated by foreigners, which include most world leaders, but was also reading their emails and listening to their telephone conversations. NSA has defended itself by stating that they have through this program thwarted several acts of terrorism. No leader can take risk of taking down such program and makes his population vulnerable to terrorist attacks. It is now believed that most countries have such programs to spy on their citizens – it is just that they are adept at hiding it from general public.

4. Use of Force against another State harbouring terroristsThe main question addressed here is whether it was lawful for the United States, the United Kingdom and their allies to use force against al Qaeda, the Taliban and Afghanistan, on 7 October 2001.

Although the use of force against Afghanistan was justified on the grounds of self-defence, serious doubts can be raised as to whether it was a lawful use of force. Let us consider President Bush’s five point ultimatum to Taliban rulers in Afghanistan:

And tonight, the United States of America makes the following demands on the Taliban: Deliver to United States authorities all the leaders of al Qaeda who hide in your land. Release all foreign nationals, including American citizens, you have unjustly imprisoned. Protect foreign journalists, diplomats and aid workers in your country. Close immediately and permanently every terrorist training camp in Afghanistan, and hand over every terrorist, and every person in their support structure, to appropriate authorities. Give the United States full access to terrorist training camps, so we can make sure they are no longer operating. These demands are not open to negotiation or discussion. The Taliban must act, and act immediately. They will hand over the terrorists, or they will share in their fate

These are incredible demands – not all related to US self-defence. There was no way Taliban could have compiled to these demands and have stayed in power.

It has been proposed by scholars that this particular use of force, if left unchallenged, would lead to an expansion of the right of self-defence which would ultimately hinder rather than enhance international peace and security. Check Russian actions in Ukraine where Russia has invoked right of self defence of Russians living in Ukraine for its interventionist policies.

International efforts to address roots of terrorism – Current Situation

While we all agree need to stamp out terrorism, it is very difficult to agree on who to call terrorists. Today’s friends could be tomorrow’s terrorists and vice versa. So Bin-Laden was useful ally when US wanted to defeat Soviet Union in Afghanistan but he became enemy number one when Al Qaeda targeted US on 9/11. PLO was terrorist organization but was rehabilitated after cold war ended and it allied with US interests in region. In recent years US has used Al-Qaeda terrorists to target Muammar Gaddafi of Libya and Assad in Syria. They supported Sunni militants in their effort to topple Assad in Syria but when these same militants morphed into ISIL and attacked US allies, they became most dangerous terrorists.

After 9/11 there was general consensus on how to deal with terrorists and their threat. Pakistan was condemned for supporting Kashmir militants who were causing mayhem in Indian Kashmir and US and UK tried to curb their support for Chechnya rebels. The reason for this consensus was all five permanent members of Security Council were battling Islamic militants. But the Arab Spring changed that entire consensus; the west regarded Syria and Iran as terrorist regimes and supported people who opposed them. While Russia and China two other members supported Iran and Syria and help blunt sanctions and provided them with arms.

In such atmosphere it is hard to believe that we can reach any consensus on who are terrorists and how do we deal with them. But I think having witnessed the history we can actually appreciate the problem better and see if we can reach any common ground to deal with this problem, which is likely to bedevil us in future. Some even believe we may have seen end of conventional wars and this is new face of war.

Committee History

The Sixth Committee of the United Nations (UN) is responsible for codifying and developing international law. It works mainly by taking topics and formulating solutions using legal framework, including international statutes and conventions. The Legal Committee ultimately receives the work of smaller committees, such as the International Law Commission (ILC) and ad-hoc bodies. It was established in 1946 to alleviate the international need for a body to devise, define, and structure international law so that the intents and purposes of the UN in the legal domain would be clear (“Legal Committee”).

According to Chapter IV, Article 13 of the UN Charter, the Sixth Committee works “for the purpose of promoting international cooperation in the political field and encouraging the progressive development of international law and its codification” (UN Charter). To fulfil its mandate, the committee reviews and revises the work of other committees to ensure its terms and functions are legally sound. The committee is also a major driving force behind the creation of international treaties and other agreements.

The Legal Committee continuously reviews international law to guarantee that it remains pertinent and effective. This requires its members to be candid about their beliefs over pieces of international law, including treaties and resolutions, during discussion and debate. The Committees unofficially requires a consensus of the entire body before an agreement is reached, and to go outside of this consensus ideology is seen as a breach of trust in the body. The celebration of consensus lends validity and strength to the actions of the Sixth Committee (“Consensus”).

The agenda for the Committee’s 64th session included eliminating international terrorism. The Legal Committee does not have any absolute power; the Security Council must execute any plans that have been put into suggestion or play.

Today, there are thirteen counter-terrorism international conventions in force. They were developed under the auspices of the United Nations and its specialized agencies and the International Atomic Energy Agency (IAEA). Moreover, on 8 September 2006, the UN General Assembly adopted a "Global Counter-Terrorism Strategy". These are listed in the Appendix.

Research and Preparation

Delegate preparation is paramount to a successful and exciting TISB MUN 2014 Conference. We have provided this Background Guide to introduce the topics that will be discussed in your committee. We encourage delegates to explore further topics such as kidnapping, rendition and funding of terrorist organizations. While these topics are open up for discussion and can be raised by delegates in committee, we implore you to research extensively on the major four issues discussed in the guide. Keep in mind, the chairs will use their discretion in allowing which topics to be raised and consequently debated upon. Delegates must be prepared to intelligently utilize their newly acquired knowledge and apply it to their own countries’ policy. You will find that your state has a unique position on the topics that cannot be substituted for or with the opinions of another state

For further research http://www.un.org/en/ga/sixth/ (UN General Assembly – Sixth Committee)

http://www.un.org/en/terrorism/ (UN Action to Counter Terrorism)

http://www.un.org/en/sc/ctc/ (UN Security Council Counter Terrorism Committee)

http://www.icrc.org/eng/war-and-law/index.jsp (ICRC – War and Humanitarian Law)

http://amnesty.org/ (Amnesty International)

http://www.state.gov/j/ct/ (US Department of State – Bureau of Counterterrorism)

Position Paper Requirements

Bill Requirements

Questions to considerThe sixth committee of the General Assembly will have to address these concerns. It will be its task to agree on common standards for the fight against terrorism, while considering already existing legal obligations under the Charter of the United Nations and other sources of international law.

Appendix

International conventions related to terrorism and counter-terrorism caseshttp://en.wikipedia.org/wiki/Anti-terrorism_legislation#International_conventions_related_to_terrorism_and_counter-terrorism_cases

Treaties and resolutions negotiated at the Sixth CommitteeThe following treaties and resolutions have been negotiated, as a whole or in part, at the Sixth Committee:

The 1961 Vienna Convention on Diplomatic Relations

The 1969 Vienna Convention on the Law of Treaties

The 1970 Declaration on Principles of International Law, Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations

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

The 1978 Vienna Convention on Succession of States in respect of Treaties

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

The 1995 Convention on the Safety of United Nations and Associated Personnel

The 1994 Declaration on Measures to Eliminate International Terrorism

Also 1996 Supplement to the Declaration, adopted by General Assembly resolution 51/210, 17 December 1996

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

The 1997 Convention on the Law of Non-Navigational Uses of International Watercourses

The 1998 Rome Statute of the International Criminal Court

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

The 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts

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

The 2005 United Nations Declaration on Human Cloning

Since 2000 the Sixth Committee has been elaborating a Comprehensive Convention on International Terrorism to complement the existing counter-terrorism instruments. That proposed treaty has not yet been adopted.

From other MUN document

Bill Requirements 1. The official documents of the Legal Committee will be Bills and not Working Papers. They can be considered similar, but are by no means the same. 2. A bill is a draft of a proposed law presented to the General Assembly for discussion. 3. Unlike working papers, bills must be concise and to the point. 4. They need to have a set focus and not deviate from that. 5. One bill may only address one topic

6. A bill is given a title which the committee will refer to it by. 7. A bill comprises several articles, which then comprise clauses. 8. A bill cannot exceed three pages. 9. At the time of framing a resolution, all bills can be used to incorporate clauses. 10. A bill can be referred to after it has been passed only. Failed bills cease to exist. 11. A bill can have up to 2 authors. 12. Co-authors are not allowed. 13. A bill requires 20 signatories to be presented to the chair. 14. A single format error is enough to table a bill. 15. Preambulatory clauses must be written in italics before the first article.