J. J. BALOCH
The modern discourse on national security finds it hard to reach some definite classification of terrorism as a law enforcement challenge. Whether terrorism falls within the crime frame or is a form of warfare poses a very genuine dilemma to scholars and practitioners as well.
From our National Action Plan, Zarb-e-Azab and now to Rad-al-Fasad Pakistan also struggles to fix its counterterrorism discourse and also to set its tone after placing terrorism in either of the two frameworks or to develop a well-crafted and articulately reasoned mix of the both.
However, with a variety of explanations, the world’s leading nations in counterterrorism such a USA, UK, Canada, and many other allied countries share many common values on counterterrorism, yet their definitions and legislative interpretations appear not in line with what they preach in media and on political forums.
This essay will attempt to scrutinise the content of counterterrorism laws as well as the media and political claims of the leadership of the states which have been actively involved in fighting terrorism. Legal contents of the Acts passed in different parts of the world including Pakistan, USA, UK, and Canada and in many other parts of the world describe terrorism ‘a form of organised crime’. While on the contrary, the media magnification of terrorist threat worldwide both by political leaders as well as the renowned journalists post this threat of terrorism as the “form of a modern warfare”.
The detailed scrutiny of relevant laws of different countries reveals in very clear terms that “terrorism is a type of a crime”. For example, Canada’s Criminal Code on terrorism reads: “In whole or in part of a political, religious, or ideological purpose, objective, or cause with the intention of intimidating the public…with regard to its security…including economic security, or compelling a person, a government or a domestic or an international organisation to do or to refrain from doing any act.”
Similarly, Terrorism Act (2006) of United Kingdom defines terrorism as a form of crime in these words: “a threat or action designed to influence the government or to intimidate the public or a section of the public for advancing a political, religious or ideological cause” would constitute a criminal act. Moreover, violence against people, damage to property, endangerment of life, risks to the health and public safety are key criminal areas outlined by the UK Terrorism Act.
The Patriot Act (PA) in the United States defining terrorism as a criminal act reads: “Terrorism is a violent criminal act which is dangerous to human life…that is a violation of the criminal laws of a state or the United States.” Patriot Act further explains that if the act intends to: intimidate or coerce a civilian population; influence the policy of a government by intimidation or coercion; or, affect the conduct of a government by mass destruction, assassination or kidnapping” would fall into the category of terrorism.
Pakistan’s Anti-Terrorism Act 1997 refers terrorism as an “action” involving death, grievous violence, grievous body injury, grievous damage to property, threat to person’s life, kidnapping for ransom, hostage-taking, hijacking, hatred or violence on the basis of religion, sect, ethnicity, caste, race, colour, stoning, brick-batting or any other form of mischief to spread panic, attacking or firing on religious congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, any forcible takeover on mosques or other places of worship, a serious risk to public safety, any public disturbance in carrying out their lawful trade and daily business, and normal civil life, the burning of vehicles or another serious form of arson, extortion of money, disruption in a communications system or public utility service, serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties, and a serious violence against a member of the police force, armed forces, civil armed forces, or a public servant. (Section 6, sub-section 2)
In order to try the criminal cases falling under these categories, special courts were established on district level in Pakistan but their dismal performance made governments realise the need of some ad hoc measures and hence military courts under NAP were established.
On the contrary, the review of media claims of political leaders brings out that” terrorism is a form of a war”. The political culture, media traditions and popular rhetoric make us believe that terrorism is something more than merely a criminal act. The scale and magnitude of terrorist attacks and the fear of the fear of terrorism invoke the ghost of war in general public. As a result, the players, as well as sellers of public sensitivities, consider war as an equivalent and appropriate response to terrorism. Many experts of terrorism believe that the phrase ‘act of war’ is a political phrase; it is not legal. “Historically, ‘act of war’ usually referenced the rationale for nations to engage in international armed conflict”, remarks Colonel Charles J. Dunlap, Jr. of American Air Force, “but now it has become a general public tendency to use the phrase loosely to fight crime” as law enforcement has been using it lavishly for ‘war on drugs’, ‘war on crime’, war on poverty’. After 9/11 attack George W. Bush got fancied with the idea of ‘war on terror’ as it fitted well in their political scheme of point scoring.
Another military expert Christopher G. Essie sheds light on why we use this phrase. According to him calling counterterrorism a war instead of a crime fighting brings many benefits to the state which raises the flag of patriotism to fight the deadly enemy as they portray it. First, such interpretation works like a magic to offer justification for the use of unusual force against suspects and their country or nation. Secondly, it is a beautiful excuse to intervene into the internal affairs of the sovereign states which allegedly host terrorists, so to say.
Lastly, this definition of calling terrorist attack an act of war allows us under exceptional and extraordinary circumstances, as they are referred in 21st constitutional amendment into the 1973 constitution of Pakistan authorizing the military courts, to violate the fundamental human rights of the people in the name of establishing peace and fighting the war on terrorism. Unfortunately, such approach further legitimises terrorism cause and depletes the law enforcement paradigm.
The counterterrorism experience of Pakistan is not much different from the rest of the world. Pakistan also faces great confusion in its focus on understanding the undercurrents of terrorism threat as well as its implications on its societal and statutory responses to terrorism. Political indecision in cases of very important security issues like NAP implementation as well as the revival of National Counter-Terrorism Authority (NACTA) is the very fit examples to explain our point. Extensive militarization of counterterrorism and criminal justice is heavily hammering our already fragile social order.
The dispensation of political confusions in defining the threat of terrorism has expanded to diplomatic levels when it comes the to state to state claims and anti claims of their involvements in international and regional proxies. Political differences and indecision on developing a uniform definition of terrorism make scholarly challenge more laborious and energy consuming exercise. Politics and diplomacy have failed to find out the internationally accepted definition of terrorism. The only law defines terrorist threat well. “The issue behind definitional solidarity at the international level is encapsulated by the phrase, ‘one man’s terrorist is another man’s freedom fighter’…Without a uniform globally accepted definition of terrorism, it is impossible to criminally prosecute individuals for the crime of terrorism at the international level. All terrorism-related matters must be dealt with on a domestic level. This, in turn, complicates legal proceedings when dealing with transnational terrorism spanning a multitude of legal jurisdictions.”
The Very recent stark example of Indian RAW spy Kulbhushan Jadhav (Codename: Hussain Mubarak Patel) whom our newly established military courts under NAP had announced deaths sentence for killing so many innocent people in Karachi and Balochistan. India has challenged this death sentence in International Court of Justice (ICJ) on the grounds of human rights as enshrined in Geneva Convention and UN Charter. Had this case been a part of normal criminal justice and local courts as they try criminals India would not have been able to take this case the on the international forum like ICJ.
In its essence terrorism is closer the to the crime but in its form, it matches to warfare. Still the anecdotes of fighting the menace are revealing and telling that it is better to deal with terrorism as a crime than a war because when it comes to war terrorism turns to be a politically explosive and revolutionary inviting popular support and sympathy of the public with terrorists than with drone throwers on innocent populations in the name of collateral damage. War model promotes, publicise, and universalize terrorism than it curbs because citizens stay away from killings of fellow citizens so indiscriminately by the military while criminal justice model takes care of human rights and the rule of law legitimising state action by neutralising public sympathies for terrorists.
Pakistan, therefore, should work out its criminal justice solutions instead of heavily relying on its military muscle for dealing with the threat of terrorism. For this end in view, our government must pay urgent attention to building the capacity of law enforcement agencies and criminal justice institutions ranging from police, prosecution, and jails to the courts of law. Criminal Justice responses to terrorism have earned better results than the military interventions have done anywhere in the world.
The Writer is a Novelist and a Law Enforcement Educator