Terrorism..
And international law
Russia is latest to advocate rewriting international law to stem vicious terrorist attacks on civilians. By Seah Chiang Nee.
Sep 25, 2004

Large-scale terrorist attacks on helpless civilians are changing international laws governing the rules of war, sanctity of territorial rights - and even sovereignty.

Russia has become the latest victim nation to announce it will carry out pre-emptive strikes to destroy terrorist bases abroad.

This is in effect advocating a departure from the established principles of sovereignty and territorial rights based on self-defence. It has the support of the US and Britain, and possibly other victims as well.

Its decision followed a horrific attack by Chechnian terrorists on a Russian school that killed 330 civilians, mostly little children.

Russia is not alone. USA and Britain have not only enunciated this principle but have actually carried it out in Afghanistan and Iraq on the basis that they were or had harboured terrorists.

Post 9/11 America invaded Afghanistan to destroy al Qaeda's bases and training camps and took down the Taliban government that gave them sanctuary.

The Iraq war is more controversial since the main reason was to remove weapons of mass destruction that have not been found.

The impact was the same. They ignored established laws on sovereignty and territorial integrity, just as Moscow's new policy intends to do.

Another factor involves treatment of terrorist captives, in particular al Qaeda suspects incarcerated in Guantanamo without trial.

They are neither treated as civilian criminals nor military prisoners under the Geneva Convention on treatment of prisoners-of-war.

The war against terrorism has thrown up many new factors never experienced in previous world wars or conflicts, rendering many existing laws inadequate.

The world is facing an entity that is not an army in uniform. It has no defined territory, no visible command structure and no objective - whether military or political - other than to kill as many infidels ('non-Muslims') as possible.

It adopts means that break all norms of international law or civilised behaviour that includes blowing up civilians - women and children.

The victims argue that many aspects of international law, as it stands, cannot protect their civilians from being bombed and may even hinder their defence because the attackers are hiding behind it to escape justice.

Even smaller states like Singapore who are also targets and therefore sympathetic may be worried about the long-term implications.

The nearest to the principle of pre-emptive strike in a foreign land is the right of hot pursuit that is recognised by international law.

It allows a country, which has been attacked by an enemy who has fled into a neighbouring country, to send its army to chase it across the border in hot pursuit. 'Hot' means immediately, not years later.

It, of course, implies that a country has the responsibility to prevent its territory from being used as sanctuary to commit hostile acts against another.

Critics are fearful that allowing a power to move into a country to an enemy even before it attacks may destabilise the world further, by creating new victims.

It could mean that a country which is incapable to stop the terrorists may be punished for its weakness. Prospective countries in Southeast Asia include Indonesia and the Philippines.

International law, they argue, is meant to provide security or safeguards for the weak, not opportunities for the strong.

For 'hot pursuit' or a 'pre-emptive strike' to work, it has to be clearly based on national defence needs, publicly justified by accurate intelligence and, of course, a brief, one time objective.

The current threats of chemical, biological or even baby nuclear weapons against the West will likely add urgency to tougher action, rather than obstacle for its implementation.

What are the sources of international law? How can they be changed?

National laws are created by the Parliament of each country. The sources of international laws, however, come from the world's collective will as follows -

1. International conventions, multinational or bilateral agreements (for those who sign and ratify them) and they cannot be overturned by any national legislation.

2. UN Security Council sanctions or embargoes, which are mostly mandatory for member states.

3. Rulings of the World Court or special tribunals to try war criminals or crimes against humanity. The decisions of the Court of International Justice bind the involved countries, but often serve to influence other similar conflicts.

4. International customs and practices. In other words, if many countries have been doing it for a long period, the action crystallises into international law.

This principle of 'pre-emptive' strikes on foreign-based terrorists will not become international law simply because one country like Moscow advocates it. It has to go through a long period of practices for it qualify as a customary law.

The world has never been an equal place. Whether one likes it or not, it is the advanced, powerful and large nations in both the east and west that will have the deciding say. It may still happen.

Or else it can evolve through a properly constituted, Western-led international conference, which will not be an easy task.

The global terrorist threat is rising in inetnsity, which means that considerations of international law may be at the back of everyone's mind.
By Seah Chiang Nee