International Law and the underlying Extra-legal Factors that influence Terrorism -By Mahmudul Hasan
The world shivers at the mention of terrorism. As a matter of fact, modern terrorism has proven to pose the most serious threat to global peace and human rights. Despite the possibilities of other elements influencing the actions made by the terrorists, media reports continued to label the attackers as fanatic Islamic terrorists and Muslim guerrillas.
As if being Muslim equates to being a terrorist, the former became synonymous with the latter. Due to the bias created by the media, there is a disregard of the extra-legal elements other than religion that affect terrorism. The understanding of terrorism is therefore amorphous and vague, creating a lacuna within the international law and instruments that are created to fight it.
In this essay, I discuss the relationship of international law with the understanding of terrorism as an international crime. The focus is not only Islam but also all religions. I aim to probe that religion is only one of the elements that influence terrorism. However, the affiliation of religion with terror is not surprising. There have been various attacks that were planned and carried out in the name of religion, but what is usually overlooked is that religion itself is not always behind the attacks, and other extra-legal factors influence the attackers and their reasons. This bias is reflected by the media, which plays a huge role in establishing what terrorism is and who is seen as a terrorist.
International community has taken several initiatives to enact multilateral instruments to eliminate terrorism with the aim of protecting basic human rights and eliminating any threat to such priority. International law targeted terrorism in two ways: the first was through enacting multilateral treaties which are open to all States to sign; and the second is the result of onerous efforts by the General Assembly to execute a series of legal recommendations to help States fight terrorism. Today, there are approximately 12 Conventions and Protocols that legislate on terrorism. For the purposes of this essay, three Conventions will be examined: the International Convention for the Suppression of Terrorist Bombings (1997),which is said to fill the lacunae regarding the investigation, prosecution and extradition of terrorists;the International Convention for the Suppression of the Financing of Terrorism (1999), which was claimed to be created in the hope of crippling the whole structure of terrorism;and the International Convention for the Suppression of Acts of Nuclear Terrorism (2005), which arguably targets nuclear weapons and their production to prevent abuse by terrorists.
International Convention for the Suppression of Terrorist Bombings (1997)
As a result of the improvement in technology and transport, bomb attacks are easier to plan, while explosives are conveniently accessible. This, and the increasing number of suicide bombers, has negatively affected the arduous war against terrorism, as the world struggles to control and monitor terrorists. In 2001, one of the men responsible for the Al-Khobar Towers attack on an American base in Saudi Arabia was indicted. The attack reportedly injured five hundred people, while nineteen perished. The alleged terrorist and his partners used a farm as the main area for building the bomb truck that was used in the attack. Extradition was sought by the USA, but Saudi Arabia rejected the extradition claim on the basis that the attack occurred on Saudi soil and that the terrorists were nationals.
This specific case gives rise to several extra-legal factors, such as the religious element, because the terrorists were reportedly linked to Hezbollah Al Hijaz– a Saudi Shiite opposition group that allegedly carried out several terrorist attacks and the political element, because the targeted group was foreign American military personnel and not non-army civilians, according to the findings of United States of America vs. Ahmed Mughassil(2001) case in US.
The UN, with the aim of enacting legislation that governs bomb attacks, adopted the International Convention for the Suppression of Terrorist Bombings (1997).The Convention incorporates several essential elements targeting terrorism, for example, prohibiting any individual from acquiring and detonating explosives (Articles 1 and 2);providing that any individual charged with this crime must be prosecuted [Article 7(2)];and administering the extradition of the alleged terrorists (Article 9). However, the most swelling Article in the Convention must be Article 5, which recognizes the existence of extra-legal factors, stating that acts of terrorism are not “justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature (Article 5).” Therefore, it is clear that the Convention does recognize extra-legal factors, but has yet to accept their influence on terrorism; thus, failing to address it. In other words, the Convention pushes States to ignore those extra-legal elements; it takes a ‘punish but not prevent’ approach. This means that the Convention punishes acts of terrorism but fails to identify the root causes, and therefore is inadequate in preventing any future attacks.
In the case of the bombing of the Al-Khobar Towers in Saudi Arabia, for example, it could be argued that the motivations for the attack were merely political for two reasons: the attack was carried out by individuals associated to Hezbollah–the radical opposition group, and the chosen targets were military personnel. It is true that motivations do not act as justification, but addressing the root motives helps further develop understanding of terrorism as a whole in order to prevent future atrocities. Theoretically, if the International Convention for the Suppression of Terrorist Bombings (1997) required States to investigate and control the cause, the reasons behind various types of terrorism could be uprooted. In other words, if the Convention provided for an investigation of the reasons behind the attack, both the terrorist individual and the group he or she is affiliated with would undergo scrutiny and repercussions to prevent future violations of human rights.
Furthermore, linking the extra-legal factors could help in identifying future possible targets. For example, religiously-motivated terrorists usually attack other religions, terrorists motivated by politics attack parliaments and military power, while personal vendettas and psychological issues might contribute to school shootings. Terrorist bomb attacks are planned on objectives that must be achieved: to kill as many people as possible to send a political message or to destroy symbolic objects and property. These comprehensive understanding of terrorism activities may lead States to prevent terrorist attacks far before they are taken place. Therefore, measures by the international community must be taken to incorporate binding Conventions and Articles that target the root cause of terrorist bombings.
International Convention for the Suppression of the Financing of Terrorism (1999)
The Abu Sayyaf group – a terrorist group based in the Philippines, suffered from a major loss in numbers of armed militants affiliated to it as a result of financial difficulties. In fact, there were reportedly only two hundred armed militants connected to Abu Sayyaf. In the hope of fiscal growth, the group carried out several kidnapping operations, according to Australian National Security.
Abu Sayyaf is not the only terrorist group that sought financial aid through crime: Al Qaeda receives funds from drug trafficking and kidnapping as reported in CNN on May 04, 2011, while other groups use extortion to build their empires. However, at times, financial aid is willingly given to these terrorist groups. After the September 11 attacks on the World Trade Center, the USA received confidential information relating to a sheikh in Yemen, who planned financing Al Qaeda. The informant claimed that up to USD20 million had been raised, which was to be transferred in cargo under the name of a honey trading business in order to avoid raising suspicion, according to Michael Freeman and Moyara Ruehsen in their article entitled “Terrorism Financing Methods: An Overview” at Perspectives on Terrorism in 2013 (Vol. 7, No. 4). Therefore, the fight against terrorism should not be merely directed towards violent acts but must also target the financing and sponsoring of terrorism, which can be made through: bank transfers, fundraising through fake charitiesor donations by wealthy individuals.
Measures have been taken by the UN to combat the financial support of terrorism. For example, the Security Council adopted sanctions that froze all funds of the Taliban– a radical terrorist organization through Security Council Resolution No. 1333 of 2000.However, an important institutive action was the enactment of the International Convention for the Suppression of the Financing of Terrorism (1999). The Convention shares similar Articles to those found in theInternational Convention for the Suppression of Terrorist Bombings Convention (1997).Therefore, development on the targets of international law was limited. However, one distinct characteristic of the Convention is that it aims to destroy the core of terrorism –if finances are suspended, then executing terrorist operations will prove difficult due to the lack of sufficient funds.
Nevertheless, the Convention fails to target the reasons behind why individuals fund terrorism. There may be some psychological factors relating to the reasons why an individual might finance terrorism, for example, frustration with certain lifestyles or just the support of extremist ideologies might trigger an individual to support terrorist acts. Moreover, support of those ideologies and philosophies might be inherited or learned through biological factors, culture and socialization.
Economically, financing terrorism is not only beneficial to the terrorist group sponsored but also to the provider of the funds. For example, if Iraq is the leading State in the production of oil, then using terrorism cripples its production rate. Consequently, it helps advance the oil business other competitor States. This is because foreign investors and international firms consider the quality of peace as being more attractive.
On the other hand, the political reasons are very similar to factors that aim to ruin a State’s economy. However, politics are also influenced by various factors, such as culture, the spread of different ideologies and interest groups, and religion. Financing terrorism could be a way with which autocratic political leaders express disdain towards another State. Despite all of these extra-legal factors that influence the financing of terrorism, the Convention fails to address these issues.
International Convention for the Suppression of Acts of Nuclear Terrorism (2005)
The past two decades have witnessed a significant increase in terrorist destructiveness. The profound fear of nuclear weapons is understandable because the consequences are not only deadly but cause catastrophe on a global scale. If the Hiroshima and Nagasaki tragedies in 1945 are any indication, then another nuclear explosion will result in massive international damage. These grave violations of rights and disrespect for human life were enough to instill fear within most States; in other words, the lesson was learned.
Nuclear weapons became attractive to all types of organizations: both States and terrorist groups. For example, the Pelindaba attack in South Africa in 2007 caused public and legal uproar over the protection needed relating to nuclear materials. The attack reportedly involved two groups of men, who gained access to a control room in a corporation that stored hundreds of kilograms of highly enriched uranium. Despite the fact that the motives for the breach on the corporation’s estate are unknown yet, it was obvious that nuclear weapons have gained the attention of criminals and terrorists, and, hence, better laws and protective measures are needed.
The main international convention regulating nuclear weapons is the International Convention for the Suppression of Acts of Nuclear Terrorism (2005). Similar to the International Convention for the Suppression of Terrorist Bombings (1997) and the International Convention for the Suppression of the Financing of Terrorism (1999), this Convention rejects any justification for terrorism (Article 6). However, its main failure is its lack of jurisdiction over States [Article 4(4)]. In other words, it only applies to terrorist groups, individuals and organizations. This lack of application to States is illogical for two reasons: the first nuclear wars were started by States during the Second World War and not terrorist groups,and States that sponsor terrorism do not fall within the jurisdiction of the Convention (2005), and, thus, cannot be held accountable. Moreover, any terrorist group seeking a nuclear weapon requires a state source to enable it to obtain certain materials needed to build the weapon. Thus, since a connection with a state is crucial for terrorists to acquire nuclear weapons, the Convention should have jurisdiction over states and be able to hold them accountable.
In addition, nuclear-weapon States are States that have rights to develop nuclear weapons under the Treaty of Nonproliferation of Nuclear Weapons (1968). These are: China, Russia, the USA, the United Kingdom (UK) and France. The Nonproliferation of Nuclear Weapons Treaty (1968) governs the production of nuclear energy and its peaceful use and includes three pillars: criminalizing the transferring of nuclear weapons (Articles 1 and 2); binding States to peacefully use and develop nuclear energy (Article 5); and supporting nuclear disarmament (Article 6). Nevertheless, the five nuclear-weapon States have adopted different policies towards using their nuclear weapons, but have maintained that nuclear weapons will be used if deemed necessary. Nevertheless, all five States use the idea of ‘self-defence’ or ‘deterrence’ to justify owning nuclear weapons with the aim of persuading potential enemies that the risk of using nuclear weapons against those five States is higher than the gains.But what about the right of those potential adversaries to self-defence and deterring measures?
This is where the extra-legal factors are triggered – mainly political factors. The fact that only certain States are legally able to possess nuclear weapons alienates other States; specifically, if there is an already-existing conflict. These political implications give rise to intra-State rivalry, further motivating States to use terrorism as a method. Instead of granting attention to the political factors that could result in a nuclear war, the International Convention for the Suppression of Acts of Nuclear Terrorism (2005) states that offences found in this Convention are not to be “regarded…[a]s an offence inspired by political motives (Article 15)”. In other words, the Convention fails to address the political factors that increase the chances of a nuclear war because it disregards the possibility of a State helping a terrorist group, and ignores political inequality relating to owning nuclear weapons.
It is true that religion does have an influence on terrorism, but it is not greater than the influence of other extra-legal factors. Notwithstanding the fact that the media is the key factor behind labeling religion with terrorism, scholars have also extensively related religion to terrorism. This failure to accurately address terrorism resulted in an international lacuna – a gap that led to an increase in the number of terrorist groups.
The war on terrorism requires the adoption of both social and legal measures. Failure to act will only lead to an increase in powerful terrorist groups. The current fight against terrorism is unrealistic. In fact, measures taken rely on compliance with international law. However, compliance with law is the last concern of terrorist groups.
With regard to the legal situation, the first and foremost important change needed is an international consensus on the meaning of terrorism; the UN has yet to agree on a functional definition.
Furthermore, in order to socially combat terrorism, stereotypes of Muslims must be eradicated. This is because the alienation of Muslims in Western societies might act as a sociological factor that may motivate an individual to seek revenge through executing terrorist acts. Moreover, bias and discrimination would result in Muslims employing a defence mechanism to protect themselves. This defence mechanism might develop into hostility towards civilians, the government and political authorities. Therefore, the religious focus must shift to include several extra-legal elements in order to consider all possible motivations relating to terrorism.
Economic issues must also be targeted and resolved to lessen the attractiveness of incentives promised by terrorist groups to potential recruits. Furthermore, more research is required relating to the effects of psychological factors associated with terrorism. Social issues are very important in combating terrorism because they have a major influence over human behavior.
No matter how successful legal Conventions and Resolutions against terrorism are, they will not eradicate terrorist acts. International Conventions are useful in establishing that no crime will go unpunished, but terrorists disdain the nature of law. Therefore, respect for it is non- existent. As a result, the international community must collaborate on both legal measures and methods to analyze extra-legal factors in order to stop the formation or expansion of terrorist groups.