International law
Q1: Terrorism and International Law
The U.N. declared a global mandate to combat terrorism, but this mandate is hampered by the different definition of terrorism causing widespread legal implications internationally. The lack of an internationally accepted definition limits global as well as domestic counterterrorism efforts. Definitions vary across nations like the United States, India, and the United Kingdom, with varying domestic legislation and broad application of laws (Setty, 2011). This variance is causing unintended consequences like the disparate effects on minority and outsider groups and the occurrence of the rule of law. Moreover, this disproportionate definition is causing confusion in the legal field on combating potential overreaching and overreactions by nations to potential terrorists (Setty, 2011). In addition, by the U.N. lacking a clear definition for terrorism nations have different labels and treatment for terrorists, with different trials, rules on access to counsel, pretrial constitutional protection, freedom of expression, and rights. However, the definition of terrorism is under the influence of political forces like the U.N., and influential states like the U.S. and U.K.
Currently, for states to try terrorists, they apply international law that is within the framework of the branches of international criminal law, international human rights and refugee law, and international humanitarian law. In addition, states jurisdiction to try terrorists is covered by their mandate by the “U.N. Security Council Resolution 1456 (2003)”. This resolution requires states to ensure antiterrorism actions meet the international law in accordance with its branches. One of the sources of the international law is “article 38(1) of the International Court of Justice,” which identifies three sources and subsidiary sources of international law. These sources are like international treaties that bind states fighting terrorism such as, the “International Convention for the Suppression of Nuclear Terrorism, article 25 (2005)” (Setty, 2011). Others include the “International Convention for the Suppression of Terrorist Financing article 24 (1999), Terrorist Bombings 1997.”
Definition of Terrorism
Therefore, international law and the U.N. Security Council defines terrorism as activities that involve dangerous and violent acts to human life, which violate the criminal laws of any state, or any criminal violation committed within the jurisdiction of any state (Schaack, 2008). Terrorism are those activities that appear to be intended to coerce or intimidate civilian, influence government policy by coercion or intimidation, or to affect government conduct by assassination, kidnapping, or mass destruction. In the U.S. activities are considered terrorist acts if they occur outside the territorial jurisdiction of the U.S., by means of how they are accomplished, or person they intend to coerce (Schaack, 2008). Given the events in recent years, terrorism is all criminal activities directed to a state with the intention of creating terror in the minds of citizens, persons, or groups.
Remedies for Terrorism
The eradication of terrorism is a challenge to states since terrorists are often driven by passionate mobilization that is not deterred by military or use of force. Therefore, states that desire to mitigate terrorism should make use of laws and legislation to limit any religious or social activity that motivates terrorism. The goal of clearly defined laws and statues on terrorism is to make it possible for law enforcement and citizens at large to expose counterfeit and authentic spiritual realms. This is because counterterrorism activities that have centered on violent exchanges between conventional and clandestine military operations have perpetuated hostilities (Fischer & Green, 2004). Therefore, for states to create effective terrorism preventative tactics, well-defined domestic and international legal frameworks are required. These frameworks will define states mandate on the analysis and minimization of political, financial, and social factors that breed terrorism (Fischer & Green, 2004). Allow states to provide rewards for individuals to provide information on suspect terrorist activities and increase community participation in terrorism watch. Increase intelligence between law enforcement agencies, information sharing between states and agencies, and coordination of security agencies (Fischer & Green, 2004). Create public awareness on legal consequences of violent and criminal activities associated with terrorism.
Example
The bombing of Pan Am Flight 103 over Lockerbie, Scotland, is an example of a terrorist act. The bombing occurred at a time there was no clear definition of terrorism in the U.S. or in the world. The act was termed as a terrorist activity following a reaction by the U.S. to political and social forces through congress, which amended the FSIA. The amendment created an exception for immunity for activities of extrajudicial killing, torture, hostage taking, aircraft sabotage, or the provision of materials for acts, as anti-terrorism and effective for the death penalty (Schaak, 2011). The incident was a terrorism act that violated the international laws, and which could be prosecuted under the definition above in Scotland or the U.S. given the activities terrorized citizens across bounders. The incident and the actions taken by the U.S. following the aftermath, indicate that states react and create laws as an express action to persons or groups that act against or coerce groups, individuals, and nations. The case also shows that there is interplay between international law and international politics. This is because as the international laws would provide human rights and criminal rights for the perpetrators, the U.S. interfered by creating exceptions to its laws to give the death penalty and use torture.
Q2: Statehood in International Law
A nation is considered a legitimate state following its endorsement by pre-existing states of its statehood. The legitimacy of such a state and its internal structure are functions of the endorsement of the sub-state groups within its boundaries and structure. Under this forum, a state receives its statehood after its sub-units endorse it to create a central authority under domestication (Boleslaw, 2005). However, this is not enough for a state to claim statehood, since under international law, a state is an entity with a defined territory, population, control of its own government.
On the other hand, statehood to the international law is the ability of a state to exercise sovereignty over its territory including airspace, internal waters, archipelagic waters, and territorial sea (Boleslaw, 2005). Under the U.N. charter, even the occupation of a state by the military of another state, does not warrant statehood to the invader. In addition, statehood is not subject to a defined population size, religious, racial, linguistic, or ethnic group (Boleslaw, 2005). The essential element of statehood is the existence of government control over a territory and population within this territory. Therefore, the Montevideo Convention on the Rights and Duties of States (1993) defines the process of recognizing a state as statehood under international law. The process involves definition of territory, existence of permanent population, existence of government and its capacity to enter into relations with other nations.
After acquiring statehood under the international law, a state can apply for membership into the U.N. To qualify for membership, a state must fulfill the requirements of article 4, paragraph 1 of the UN Charter (Fassbender, 1998). The article requires the state to first be a peace loving nation, which meets the criteria of an independent statehood and must be willing to carry out the obligations of the charter. However, a state with a recognized statehood is not guaranteed membership into the UN (Fassbender, 1998). For this reason, political entities that meet the criteria for statehood may not be admitted as members of the UN. The admittance into the UN requires the fulfillment of article 4, along with the decision of UN General Assembly and recommendation of UN Security Council (Fassbender, 1998).
Apart from being members of the UN, members states can participate as observer states with different rights but without a voting right. Members can participate in observer missions to UN activities like the Vatican city involvement in the UN (UN Member States, 2012). Members can also participate as intergovernmental organizations that have offices and functions within the UN headquarters, or as entities with permanent residence like the International Committee of Red Cross and sovereign military order of Malta (UN Member States, 2012). States that are members of the UN, benefit from the peaceful forum for mediating disputes, protection of state interests, and an egalitarian or independent perspective to international issues.
The interest of Palestine to the UN’s membership is in the provision of the Arab and Jewish populations a right to self-determination. This follows the acknowledgement and admission of Israel as a member of the UN, which fulfilled the right of self-determination for the Jewish population. However, this led to a parallel right for the Arab population remaining in the historical Palestine region.
The road towards attainment of the UN membership began in 1974, when the Palestine Liberation Organization (PLO) became a UN observer under invitation by the UN General Assembly. The Palestinian National Council, in 1988 declared Palestine was independent, causing the General Assembly to designate PLO as “Palestine.” Palestine’s participation in the UN has continuously increased in scope to the level of an observer state, as the General Assembly increased its capacity. In addition, participation in the UN has continually changed with the evolution of the UN Secretariat’s description of Palestine’s status (Boleslaw, 2005). This has seen Palestine’s participation in the UN change from its listing as PLO in the Blue Book as an organization with permanent offices, to Palestine an entity with a permanent mission.
Palestine at first was able to participate in the UN as an organization with permanent offices in the UN, or as an entity with a permanent mission in the UN (Boleslaw, 2005). However, this participation will change and most likely be challenged by permanent members of the UN like the U.S., if Palestine makes a formal application. This is because there is debate over the status of Palestine as a state with a recognized statehood. These members states would object to the membership since Palestine’s claimed territory is currently under dispute, and hence calling for a resolution prior to recognition. Secondly, there is no recognized sufficient governmental control by the Palestinian National Authority, over the territory. Thirdly, the move for membership will alter the status of the territory violating the Middle East Peace Process.
The argument of whether Palestine is a state with a recognizable statehood along with the definition for the requirements of statehood by the UN shows the interplay between international law and powerful international politics. This is because, over time the UN General Assembly has been recognizing Palestine as a independent state with increased scope of involvement in UN activities. However, permanent UN Security Council members like the U.S. object to its membership, citing its destabilization to the peace process in the Middle East.
Reference
Boleslaw, A.B. (2005). International Law: A Dictionary (Dictionaries of International Law). Scarecrow Press.
Fassbender, B (2009). The United Nations Charter as the Constitution of the International Community (Legal Aspects of International Organization). Brill Publications.
Fischer, R. & Green, G. (2003). Introduction to Security. 7th ed., Butterworth-Heinemann.
Schaak, B.V. (2008). Finding the Tort of Terrorism in International Law. The Review of Litigation, 28(2), 381-478.
Setty, S. (2011). What’s in a Name? How Nations Define Terrorism Ten Years After 9/11. University of Pennsylvania Law School Journal of International Law, 33(1), 1-62.
United Nations (2012). Member States. United Nations, Retrieved 27th Dec 2012 from https://www.un.org/en/members/about.shtml.
