War Crimes, Terrorism, and National security

By

Y.SRINIVASA RAO, JUDICIAL OFFICER.

Laws are like spider webs: If some light or powerless thing falls into them, it is caught, but a bigger one can break through and get way. – Salmon.


The distinctive meaning of national security means freedom from foreign dictation.” – Harold Lass well – 1950.

Introduction:-

Paul Wilkinson believes that the premise behind terrorism is ”Kill one frighten ten thousand” as Chinese proverb goes. A ”War crime” is a human action that constitutes a serious violation of the laws of war that indicates to individual criminal responsibility. Eighth Report on Terrorism which was published in 2018 defines the word ”Terrorism” as the peacetime equivalent of war crime. Similarly, ‘Terrorism’ poses a significant threat to the citizens of India. From Indian history, it revelas that in 1944, the Japanese planned a daring attack on India. Traveling through Burma, its forces were stopped at Kohima and Imphal by British and Indian troops. This marked the furthest western expansion of the Japanese Empire; its defeat in this area presaged Allied victory. It is the duty of the Government to provide national security which means the security of a nation state, including its citizens , economy and organizations etc. National security does not only confine to military attack, national security is now widely understood to include non-military dimensions, including the security from terrorism, war crimes, economic security, environmental security,energy security cyber security and food security etc. According to Arnold Wolfers, 1960, ‘National security objectively means the absence of threats to acquired values and subjectively, the absence of fear that such values will be attacked.’ Terrorism is one main problems for India. For instance,
person or groups deliberately targeting critical infrastructure for political gain. In the month of November, 2008 Mumbai attacks, the Mumbai central station and hospital were deliberately targeted. While

Islamic upsurge in Indian State of Jammu and Kashmir demanding secession and far left wing terrorism in India’s red corridor remain some key issues in India’s internal security, terrorism from Pakistan based militant groups has been emerging as a major concern for New Delhi.


In the words of late Pandit Jawaharlal Nehru :-
“To sum up, all out institutions, including the parliamentary institutions, are ultimately the projections of a people’s character, thinking and aims. They are strong and lasting in the measure that they are in accordance with the people’s character and thinking. Otherwise, they tend to break up.” (See Nehru’s Message to the first issue of the Journal of Parliamentary Information, Vol.1, No. 1, April, 1955).

National Security Council of India:-

National Security Council was established on 19-11-1998. It is popularly known as NSC. Prior to formation of NSC, Pricipal Secretary to Prime Minister used to look after all these activities. National Security Council receives all kinds of intelligence reports. National Security Advisor of India is chief advisor to the Prime Minister of India over national and international security policy. National Security Council has India’s defence, foreign, home, finance ministers and deputy chairman of NITI Aayog as its members and is responsible for shaping strategies for India’s security in all Toaspects. The National Security Council is the supreme body of the three-tiered structure of the national security management system in India. The other two tiers are the Strategic Policy Group, and the National Security Advisory Board (Known as NSAB). The earlir key tasks of NSAB were such that it was first constituted in December 1998, headed by the late K.Subrahmanyam who produced a draft Nuclear Doctrine for the country in 2001, a Strategic Defence Review in 2002 and a National Security Review in 2007. Later, in 2018, new NSAB was reconstituted and that it has tenure of two years.


War crimes:-

From the History, it is known that In 1944, the Japanese planned a daring attack on India. Further, Arunachal Pradesh, a state in the Northeastern tip of India, is claimed by China as South Tibet. When Sino – Indian relationship was degraded, it resulted Sino-Indian War in 1962. During the war in 1962, the PRC (China) captured much of the NEFA (North-East Frontier Agency) created by India in 1954.


Terrorism:-

Terrorism poses a significant threat to the citizens of India. What is Terrorism. It is the systematic use or threatened use of violence to intimidate a population or government for political, religious, or ideological goals. The terrorism in Andhra Pradesh stems from the People’s War Group popularly known as Naxalites. Tamil Nadu had LTTE (Liberation Tigers of Tamil Eelam) militants operating in the Tamil Nadu state up until the assassination of former Prime Minister Rajiv Gandhi. The Tamil Tigers, now a banned organisation.

Definition of ”Terrorism”:-

Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi-) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat and violence-based communication processes between terrorist organisation, victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought. — Alex

Schmid and Albert Jongman. (It is significant to note that Indian Government uses the above working definition of terrorism, same as one widely used by Western nations as well as the United Nations, proposed by Schmid and Jongman in 1988.).


James M. Poland “Terrorism is the unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a Government, individuals or groups, or to modify their behavior or politics.”


Vice-President’s Task Force, 1986 “Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”
FBI definition Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised and orderly society.
Brian Jenkins “Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targeted.” Walter Laqueur “Terrorism is the premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience.”


To say in succinct about the terrorism attacks in India, since from 8th June, 1982 (Mandia Massaacre) to 9th April, 2019 (killing of RSS worker in Kishtwar) there are 105 terrorism attacks were happened in India. Since 1970 to 2019, 30, 544 people were injured and 19,866 were dead. See. Study of the National Consortium for the Study of Terrorism and Responses to Terrorism (START). START offers a number of datasets related to terrorism. In which places, terrorists activities are more in India? Mostly, the regions with long term terrorist activities have been Jammu & Kashm, Naxalism activities were reported in east- central and south-central India and the Seven Sister States (Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland and Tripura). From the History, it is known that Arunachal Pradesh, a state in the Northeastern tip of India, is claimed by China as South Tibet. When Sino – Indian relationship was degraded, it resulted Sino-Indian War in 1962. Terrorism found in Indian is known as left wing terrorism, and narco terrorism, ethno-nationalist terrorism, religious terrorism. Electronic media alleged and implicated terrorism in India to be sponsored by Pakistan, more in particular through its ISI (Inter-Services Intelligence). Of course, Pakistan denies the same. It was reported in media that in 2018, police arrested a terroist from Hizbul Mujahideen group in the city of Kanpur, who wanted to attack on Ganesh Chaturthi. As it is discussed above, as per Eighth Report on Terrorism which was published in 2018 defined ”Terrorism” as the peacetime equivalent of war crime.

Role of the Judiciary:-


Indian Judiciary plays an important role in interpreting laws to provide equity and justice to the people of India Constitutional mandate of judiciary is most important in times of emergency. Indian Constitution laid down Part -III (Fundamental Rights) and Part-IV (Directive Principles o State policy) of the Constitution for the protection and up- liftment of the public. Articles 14 (equality and equal protection), Art. 19 (fundamental freedoms), Art. 21 (life and liberty of individual), Art. 38 (to promote welfare of the people), Art. 39 (to provide free legal aid)

of the Indian Constitution protects the right of the citizens of India.
State vs Mohd. Afzal And Ors (2003 (3) JCC 1669 ):- Every nation is the master of its own fate and arbiter of its life. This nation – this unit in India of over 100 crore members – needs an organ and agent through which it can act. This organ and agent has to represent and reflect India’s being in all its facets and scintillations of its multitudinous life. This organ and agent is Parliament. The Hon’ble Delhi Court held as follows:- ”The attack was on Parliament, when in session. The sovereignty of the country was attacked. To borrow the words of the Apex Court in the judgment reported as 2002 (Vol. IV) A.D. (SC) 445 (Para 87), Krishna Mochi v. State of Bihar, the gravity of the offence is of a magnitude that the collective conscious of the community is so shocked that it will expect the holders of the judicial power centre, to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty. Indeed, after the unfortunate incident, this country had to station its troops at the border and large scale mobilisation of the armed forces took place. The clouds of war with our neighbour loomed large for a long period of time. The nation suffered not only an economic strain but even the trauma of an imminent war. We agree with the submissions made by the prosecution that for the offence of waging war, accused Mohd. Afzal and accused Shaukat Hussain Guru deserve the higher penalty. We accordingly modify the sentence imposed on the said two accused persons under Section 121 IPC by awarding death sentence to these two accused. ”

Dr. Ram Manohar Lohia vs State Of Bihar And Others (1966 SCR (1) 709 ):- One has to imagine three concentric circles, the largest representing “law and order”, the next representing “public order”
and the smallest representing “security of State”. An act may affect “law and order ” but not “public order,” just as an act may affect “public order” but not “security of the State”. Therefore, by using the expression “maintenance of law and order” the District Magesstrate was widening his own field of action and was adding a clause to the Defence of India Rules.


Madan Singh vs State Of Bihar :-

The Apex Court held that A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fallout of the intended activity is to be one that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. It is in essence a deliberate and systematic use of coercive intimidation. It is a common feature that hardened criminals today take advantage of the situation and by wearing the cloak of terrorism, aim to achieve acceptability and respectability in the society; because in different parts of the country affected by militancy, a terrorist is projected as a hero by a group and often unfortunately even by many misguided youth.


In Navjot Sandhu, the issue of “waging war” against the Government of India has also been considered in relation to terrorist acts and in that regard the Court observed and held as follows:
“275. War, terrorism and violent acts to overawe the established Government have many things in common. It is not too easy to distinguish them…”.
Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid Vs. State of Maharastra:- It was observed that Coming back to the facts of the case in hand, we find that the primary and the first offence that the appellant

and his co-conspirators committed was the offence of waging war against the Government of India. It does not matter that the target assigned to the appellant and Abu Ismail was CST Station (according to Mr. Ramachandran, no more than a public building) where they killed a large number of people or that they killed many others on Badruddin Tayabji Marg and in Cama Hospital. What matters is that the attack was aimed at India and Indians. It was by foreign nationals. People were killed for no other reason than they were Indians; in case of foreigners, they were killed because their killing on Indian soil would embarrass India. The conspiracy, in furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its financial centre; to try to give rise to communal tensions and create internal strife and insurgency; to demand that India should withdraw from Kashmir; and to dictate its relations with other countries. It was in furtherance of those objectives that the attack was made, causing the loss of a large number of people and injury to an even greater number of people. Nothing could have been more “in like manner and by like means as a foreign enemy would do”.
PUCL v Union of India, (2003) 4 SCC 399:- The Hon’ble Apex Court held that once legislation is passed, the Government has an obligation to exercise all available options to prevent terrorism. See also cases reported in (1980) 2 SCC 684; (1983) 3 SCC 470; (2011) 5 SCC 317, paras 23-24; (2008) 13 SCC 767, para 43, 48-53; (2009) 6 SCC 498, para 64-66, 71-72, 80-89; (2009) 11 SCALE 327, para 11-23: (2010) 14 SCC 641; (2009) 5 SCC 740, para 83-84, (2011) 2 SCC 764; (2010) 3 SCC 508, para 80; (2010) 1 SCC 775, para 66-67; (1996) 9 SCC 502, para 15; and (2001) 9 SCC 1, para 1, 63.


Conclusion:-

Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi-) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby the direct targets of violence are not the main targets.Terrorism focuses either (a) on creating a separate State within India or independent of India or in a neighboring country. It also on religious imperatives, a presumed duty or in solidarity for a specific religious group, against one or more religious groups. In the form of left wing terrorism, it concentrates on religious imperatives, a presumed duty or in solidarity for a specific religious group, against one or more religious groups. Mumbai has been attacked by terrorists groups for several times. From 12-03-1993 to 13-07-2011 there have been serious attakes on Mumbai. League of Nations Convention (1937) “All criminal acts directed against a State along with intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public.” (GA Res. 51/210 – Measures to eliminate international terrorism) ” Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed. Navjot Sandhu was the case of a terrorist attack on the Parliament of India and, in that case, this Court considered the import of the right to counsel in the context of the provisions of the Prevention of Terrorism Act, 2002. The ability to successfully address these challenges lies heavily on the capacity of national criminal justice systems to administer fair and effective justice for perpetrators of terrorist crimes. National action, coupled with international and regional cooperation are key elements in addressing terrorism effectively. More discussions on Indian legislative framework against terrorism including the repealed Terrorist and Disruptive Activities (Prevention) Act (TADA), Prevention of Terrorism Act (POTA), as well as the Unlawful Activities (Prevention) Act are to be held to prevent terrorism in India. Despite it is important to train criminal justice practitioners in the Indian context, it is equally important for them to understand the international legal framework – an area where UNODC can provide expertise.

International Law

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