World

Extradite or Prosecute: Why the Counter-Terrorist Principle India is Pushing is So Crucial

The political dimension of the current deadlock on a convention on international terrorism in the UN General Assembly reflects the different attitudes of member states towards terrorism.

The UNGA Resolution established an Ad Hoc Committee on International Terrorism in 1972 consisting of 35 countries, including India. Credit: Reuters

The UNGA Resolution established an Ad Hoc Committee on International Terrorism in 1972 consisting of 35 countries, including India. Credit: Reuters

On May 30, the Extraordinary African Chambers, created by the African Union (AU) in Senegal in 2013, tried a high profile case against the former president of Chad, Hissene Habre, and convicted him of crimes against humanity. It was a unique moment for the long campaign waged by many to bring to justice the perpetrators of such crimes, based on the principle of “extradite or prosecute” under the UN’s Convention against Torture. In the Habre case, it was the International Court of Justice, the principal judicial organ of the UN, which facilitated the decision of the AU to apply this principle by setting up the Extraordinary African Chambers in Senegal and ordering it to try the former president or extradite him elsewhere.

Terrorism

As the world confronts equally heinous crimes committed by terrorists, the focus on applying the principle of “extradite or prosecute” through international legal instruments being drafted by the UN, such as the Comprehensive Convention on International Terrorism (CCIT), has come into sharper focus.

In September 1972, 11 members of the Israeli contingent were killed in a terror attack during the Munich Olympics. The “Munich Massacre,” as the attack came to be known, galvanised the UN General Assembly (UNGA). The first UNGA resolution on countering terrorism was adopted that year.

That resolution established the Ad Hoc Committee on International Terrorism in 1972, consisting of 35 countries, including India, to flesh out a multilateral legal framework to counter terrorism. The ad hoc committee, chaired by India in 1979, submitted its report to the UNGA, which included a proposal for the negotiation of an additional international convention, or conventions, based inter alia “on the principle of extradition or prosecution to combat acts of international terrorism not yet covered by other similar international conventions”. The UNGA asked the UN secretary general, on the basis of views of member states, to follow up on this proposal.

The action by the UNGA recalled the response of the League of Nations to terror attacks in 1934. Following the assassination of King Alexander I of Yugoslavia and French foreign minister Louis Barthou in Marseilles, France activated the League of Nations to negotiate, during the diplomatic conference for the repression of terrorism in Geneva in November 1937, a Convention for the Prevention and Punishment of Terrorism. The focus of the convention was for members of the League of Nations to pass national legislation that would make terrorist acts extraditable offences, in the event of one of their nationals committing a terror act in a foreign jurisdiction.

India’s role in the League of Nations

India, represented by Sir Denys de Saumarez Bray, was among the 24 countries at the League of Nations that signed the convention in 1937. India was the only country to ratify it – in January 1941, but the convention never entered into force due to the inability of many signatory states to act on the issue of “extradition or prosecution”. The convention, along with the archives of the League of Nations, was transferred to the UN in 1946.

Since 1963, despite the apparent success of the UN in adopting a slew of conventions to counter some aspects of terrorism, the core issue of extraditing or prosecuting those accused of terrorism continues to be deadlocked in legal discussions in the UNGA’s 6th (legal) committee. Effective action to counter terrorism, especially when terrorist activities have assumed trans-border dimensions, depends on integrating this principle into a comprehensive international legal instrument by the UN.

In 1994, the UNGA unanimously adopted a resolution upholding the principle of extraditing or prosecuting perpetrators of terrorist acts. This was followed up in 1997 by the establishment of  the Ad Hoc Committee on Measures to Eliminate International Terrorism, open to all member states, by another unanimous UNGA resolution. The mandate given to the committee was to draft international legal instruments to counter terrorist bombings, suppress acts of nuclear terrorism and develop “a comprehensive legal framework of conventions dealing with international terrorism”. A declaration annexed to this resolution placed emphasis on the principle of extraditing or prosecuting perpetrators of terrorist acts.

In November 1996, India took the initiative to circulate a “first draft” of a CCIT. Within the ad hoc committee, however, it was decided to keep this draft in abeyance until the sectoral negotiations on the Convention on Suppression of Terrorist Bombings and the Convention on the Suppression of Financing of Terrorism were completed. Work on the CCIT was pushed back further when the ad hoc committee decided to complete work on a Convention on Suppression of Acts of Nuclear Terrorism, eventually adopted in 2005.

Working group formed

In 2005, the 6th Committee of the UNGA established a working group to look at these divergences. Rohan Perera of Sri Lanka, who had successfully steered the negotiations on the three sectoral conventions on terrorist bombings, financing of terrorism and nuclear terrorism, was elected chairman.

Eleven years on, the main issues of divergence today among the participants in the ad hoc committee on the drafting of a CCIT are well known. These relate to excluding acts by “national liberation movements,” which is linked to the issue of the “definition” of terrorism, from the scope of the CCIT. The Organisation of the Islamic Conference (OIC) has adopted an uncompromising stance on this issue. The second issue relates to the demand by several left-wing Latin American countries to include “state terrorism” in the CCIT. Another issue relates to the demand by some western countries to exclude the acts of national armed forces during peacetime from the CCIT’s coverage.  Separately, Egypt has called for a UN High Level Conference to formulate a joint organised response to terrorism.

The working group’s efforts have continued for more than a decade. The draft text of the CCIT (with its unresolved issues) has been on the table since 2007. This draft contains several provisions elaborating on the issue of “prosecute or extradite”.  In April 2013, the working group considered a proposal to address the outstanding issues by incorporating them in a UNGA resolution while adopting the CCIT as a purely legal instrument to deal with the crime of terrorism. This proposal has not been agreed to by all the countries. At a meeting of the 6th Committee of the UNGA in November 2015, Perera reported that despite attempts to propose compromise language on the contentious issues, the position of countries remained divergent. He said that these issues were of a “political, rather than legal, nature”.

The UNGA, however, has a political mandate issued by the 2005 World Summit to formulate a comprehensive “strategy” to counter terrorism, along with a political commitment which unanimously “stressed” the need to conclude the CCIT by September 2006. The mandate for a Global Counter Terrorism Strategy (GCTS) was implemented by the UNGA on September 8, 2006. Four biennial reviews of the GCTS have taken place in the UNGA so far. Although the “principle to extradite or prosecute” features under the fourth pillar of the Plan of Action of the GCTS, little progress has been registered, let alone concerted action taken, to conclude the CCIT.

The political dimension of the current deadlock on the CCIT in the UNGA reflects the different attitudes of member states towards terrorism, especially for those states that have ambivalent views on terrorism.

Product of political compromises

Under Article 25 of the UN Charter, the “primary responsibility” for the maintenance of international peace and security has been delegated by the member states to the UN Security Council (UNSC), making it the most visible and empowered political organ of the UN. As the impact of international terrorism has continued to spread, posing a direct threat to international peace and security, the UNSC has responded by adopting resolutions under Chapter VII of the UN Charter to counter this threat. The UNSC is authorised under Article 41 of the UN Charter to consider “measures not involving the use of armed force” to give effect to its decisions. Under Article 25 of the charter, all members of the UN have agreed to “accept and carry out the decisions” of the UNSC.

Since the 1990s, it has been the US which has taken the political initiative to push for counter terrorism initiatives in the UN, though it has preferred to use its permanent membership of the UNSC for this purpose. The fact that all the UNSC resolutions to counter terrorism proposed by the US have been adopted by consensus demonstrates its ability to carry along other members of the council, especially the other four permanent members (Russia, China, the UK and France) who have veto powers. In the UNSC, the US is the lead country (or “pen-holder”) on counter terrorism issues.

The overall shortcoming of the UNSC resolutions lies in the fact that they are the result of political compromises between the members, especially the permanent members, of the UNSC. The fact that UNSC resolutions are essentially political in nature was clear when the UNSC split Resolution 1267 into two separate resolutions in 2011 (UNSC Resolution 1988 to focus on the Taliban and UNSC Resolution 1989 to focus on Al-Qaida). This was done to provide political flexibility to reintegrate elements of the Taliban listed earlier with Al-Qaida under UNSC Resolution 1267 into the Afghan peace process.

The preferred approach of the major UNSC resolutions to counter terrorism (1267 and 1989, 1373 and 1540) has been to condemn terror acts, recall obligations of member states to fight against terrorism, including the concept of “zero tolerance” of terrorism, offer support for capacity building in member states to counter terrorism, and introduce sanctions in specific cases. No major UNSC resolution on countering terrorism has so far incorporated the principle of “extradite or prosecute” in its actionable paragraphs as obligations for all UN member states.

In September 2014, faced with growing evidence of the rapid spread of terrorism and the movement of terrorists across borders, at the initiative of the US, the UNSC adopted Resolution 2178 on “foreign terrorist fighters”. Paragraph 6 of this resolution refers to the need for member states to “prosecute and to penalize” terrorists, including through international cooperation on extradition.

For the vast majority of member states of the UN, the principle of “extradite or prosecute” has become even more relevant in light of the globalised footprint of international terrorism that has impacted all continents for the past few years. As US President Barack Obama stated while chairing the UNSC Summit meeting on September 24, 2014, when Resolution 2178 was unanimously adopted, “If there was ever a challenge in our interconnected world that cannot be met by any one nation alone, it is this: terrorists crossing borders and threatening to unleash unspeakable violence.” The integration of the principle of extradite or prosecute in the international legal architecture to counter terrorism must be, therefore, a priority for the UN.

Adopting the convention

It is worth emphasising that no country in the UN opposes the need for a CCIT. As the UN marks the 10th anniversary of adopting its Global Counter Terrorism Strategy in June 2016, the time is opportune for a coalition of permanent members of the Security Council, influential members of the OIC, and countries that have consistently called for a CCIT, to take the lead in the UNGA on breaking the deadlock on the comprehensive convention.

The outcome of such an initiative should be to mandate negotiators in the 6th Committee of the UNGA to conclude negotiations by the end of the 70th UNGA Session on September 14, 2016, endorsing the approach of the chairman of the working group to adopt an international legal instrument (the CCIT), with an accompanying General Assembly resolution addressing the political dimensions of this issue.

Asoke Mukerji was India’s permanent representative to the United Nations in New York.