Applicability of Force in Defence against Terrorist Attacks

For an idea as to the nature and various dimensions of contemporary terrorism and of the problems pertaining to its control see, for instance, Ghose Sehkar , “International Terrorism: An Overview” in Ghose B. (ed), Perspectives in Political Science (Burdwan, W.B. Academic Staff College, Burdwan University), 1997, at pp. 69–79.

As to what international terrorism is see ibid., pp. 71–2.

Security Council Resolution 1373(2001) adopted on September 28, 2001.

During the first week of October 2001 the Indian Society of International Law Organised an “International Seminar on been International Law in the New Millennium: Problems and Challenges Ahead” where several papers on International terrorism were presented. Jadavpur University, Kolkata, has organised two seminars on the same theme within a span of six weeks (on January 31 February 1, 2002 and March, 6–8, 2002).

In fact the human rights report of 2001 (on India) published by the US State Department states that”. in addition to political killing, kidnappings and rape. The insurgents are engaged in extortion and have carried out acts of random terror. Many of the militants are not citizens but Afghans, Pakistanis and others.” Times of India (New Delhi), March 5, 2002, p. 1.

Very recently President Bush has “emphatically asked” the Pakistani dictator, Pervez Musharraf, “to stop cross-border 1998, or the bomb attack on Indian troops in new Jalpaiguri railway station (West Bengal) during the Kargil conflict in the summer of 1999, attack on the Jammu and Kashmir Assembly on October 1, 2001 and the attack on the Indian Parliament on December 13, 2001.

Unpublished paper by Rajat Ganguly, entitled “From Jang to Jihad: Continuity and Change in Pakistan's Kashmir Policy”, presented before the National Seminar on “Terrorism and Low Intensity Conflict in the South Asian Region” organized by the Department of International Relations, Jadavpur University (Kolkata) on March 6–8, 2002.

As a part of the criminal justice process India has also signed extradition treaties with a number of states as well as legal assistance arrangements with some countries. See note 9 at pp. 19–20 of P.S. Rao's paper entitled “An Indian Response to International Terrorism: A Comprehensive Convention on International Terrorism” presented before the National Seminar mentioned in supra note 7.

The first international convention, the Convention for the Prevention and Punishment of Terrorism was signed in Geneva way back in 1937.

See the paper entitled “International Terrorism, Self-Determination and National Liberation” presented before the International Seminar (cited in supra note 4), p. 5 especially.

The question of definition of terrorism which has baffled the international community so far has been sought to be resolved by this Convention in Article 2 (to be read in conjunction with its Annexure that lists various types of acts deemed to be terrorist acts). Regarding the problems of defining international terrorism see Alex Obote-Odora, “Defining International Terrorism”.

Wedgwood Ruth , “Responding to Terrorism. The Strike against bin Laden”, The Yale Journal of International Law, vol. 24, 1999, pp. 562 ff.

The Taliban government has already been removed by the US led military actions and an interim government in Afghanistan has been installed.

“Operation Enduring Freedom: Foreign Pledges of Military and Intelligence Support”. CRS Report for Congress (Updated October 17, 200 and prepared by David J. Perleman and Steven A. Hildreth), p.p. 4–5. (The report may be accessed through CRS web).

In legal discourse the term “war” has specific connotations and consequences. See, for instance, Ingrid Detter, De Lupis, The Law of War (Cambridge: Cambridge University Press), 1987, pp. 1–24 especially.

It may be noted that the founding fathers of the UN deliberately avoided technical distinctions between “war” and “use or threat of force” in order to restrict the possibilities of resort to the latter.

The attack on the Indian Parliament on December 13, 2001 is clearly an attack on India's personality as a democratic republic. Likewise, religious cleansing by the Pakistan-sponsored terrorists in the Indian state of Jammu and Kashmir is clearly an attack on India's securlar credo which is an integral part of India's personality. On the latter point see, for instance, Ghosh Sekhar , “India-Pakistan Relations: Limitation of the Gujral Doctrine”.Jadavpur Journal of International Relations (Kolkata), vol. 3, 1997, p. 122. Also Denis Groves, “India-Pakistan: A Clash of Civilizations?” Washington Quarterly, Autumn, 1998, pp. 17–20; Jonab Blank, “Kashmir: Fundamentalism Takes Root,” Foreign Affairs, November-December, 1999 pp. 115–26.

Fenwick C. G. , International Law (New York: Appleton—Century Croft), 3rd edn, 1952, p. 228.

Ibid.

See, for instance, Ghosh, op. cit. (supra note 1), pp. 72–3.

A factual account of the array of the deadly weapons modern terrorists have or are trying to acquire and the havoc they might cause may be found in Stern Jessica , The Ultimate Terrorists (Cambridge, Mass.: Harvard University Press), 1999. Also, Walter Laqueur, “Postmodern Terrorism”, USIA Electronic Journal, Vol. 2, No. 1 February 1997.

For a brief account of the Islamist (jihadi) terrorist groups in the Middle East, Afghanistan and Pakistan see John Moore, “The Evolution of Islamic Terrorism: An Overview”.

Fenwick, op. cit., p. 228.

Cited in Ganguly Swagato , “A Dangerous World: Only First Shots of Terror War Fired”. The Statesman (Kolkata), February 23, 2002, p. 6.

The Statesman (Kolkata), February 19, 2002, p. 2. The report was datelined Islamabad. Daniel Pearl has been reportedly murdered by his Pakistani abductors.

Meaning acts of aggression listed in paragraphs a to f article 3 of the Resolution.

G A Resolution 2625 (XXV) 1970, GAOR, Supp. No. 28.

ICJ Reports 14 (1986), para 202.

This point has been discussed with reference to Corfu and the case between Nicaragua and the USA in Dervort Van Van Dervori Thomas R. , International Law and Organization: An Introduction (Thousand Oaks, California: Sage Publications), 1998, pp. 474–5. Reprisal is proscribed also by paragraph 4 of the 1970 Declaration of the General Assembly.

India, as a leading Third World state has had, it has to be noted, her share of sin. She was also a party to the stipulation contained in the 1972 General Assembly Resolution to the effect that terrorists acts, if part of national liberation or antiracial struggles, were legitimate. See Ghosh, op. cit. (supra note 1), pp. 73–4.

Resolution 55/158 adopted on the report of the Sixth Committee (A/55/614).

Ghosh, op. cit, p. 73.

One feature of contemporary terrorism is rooted in ethnic or micro nationalism. See Laqueur, op. cit., p. 1.

See supra note 10.

See, for instance, De Lupis (supra note 15), p. 74 especially. Also Wedgwood, op. cit. (supra note 12), pp. 564–5; Yoram Dinstein, War, Aggression, and Self-Defence, 3rd edn. (2001), pp. 194–203.

Wedgwood, op. cit.

Ibid., pp. 564–5.

Ibid., p. 567.

Ibid., pp. 568–70.

The Pakistani dictator has been regularly harping on political, diplomatic and moral support to the so-called “freedom fighters” in Jammu and Kashmir. Moreover, the role of the Pakistani Inter-Services Intelligence (ISI) as the nerve centre of terrorism exported by Pakistan is well known. It fact, in August 1998 while the USA hit Afghanistan with Tomahawk land attack missiles, third party air space (in this case Pakistan's) was violated. But the Americans did not inform the Pakistani authorities of the impending missile attacks in advance because of the “unsteady state of Pakistani domestic politics and the reported links between Pakistani intelligence services and the Taliban.” Wedgwood, op. cit., p. 568.

In fact, Taliban was itself a creation of the ISI Pakistani regulars fought on the side of the Taliban. See, for instance, The Asian Age (Kolkata), November 18, 2001, pp. 1 and 2.

See, for instance, Van Dervort, op. cit. (supra note 29), pp. 467–8.

Ibid., p. 468.

Cited in ibid., at p.468.

ICJ Report 14 (1986), Para 176. Also, Theodore Meron, “The Continuing Role of Custom in the Formation of International Humanitarian Law”, AJIL, vol. 90 (1996), pp. 238 and 240.

For a brief discussion of the controversial concept see, for instance, De Lupis (supra note 15), pp. 332–7.

It may be recalled that the British forces raided the steamer while it was anchored in New York.

Article 51(5) of the Protocol Additional to the Geneva Conventions of August 12, 1949. (Protocol I, Relating to the Protection of Victims of International Armed Conflicts, of 1997).

Gardam Judith , “Proportionality and Force in International Law”, AJIL, vol. 87 (1993), p. 391.

Meron, op. cit. (supra note 44), p. 240; also, De Lupis, op. cit. (supra note 15), pp. 241–4.

See note 10 above.