Author: Manoj Mitta
Publications: The Indian Express
Dated: September 20, 2001
Three days after Black Tuesday,
Malaysian Prime Minister Mahathir Mohamad denounced terrorism saying "Islamic
countries should not side with fellow Islamic countries" on the issue.
India has reason to feel particularly vindicated by Malaysia's reaction.
This is because barely a year ago Malaysia, for all its reputation as a
moderate Muslim nation, led the Organisation of Islamic Countries (OIC)
group in the UN General Assembly to undermine a major Indian initiative
against terrorism.
Being one of the worst victims of
terrorism in the world, it was apt on India's part to have proposed the
first-ever "comprehensive convention on international terrorism." In fact,
India can claim to have been prescient in suggesting that the existing
anti-terrorist conventions are all too "sectoral" or "specific" to have
any effect on a scourge that has been striking in increasingly unpredictable
ways. Take, for instance, the 1997 convention, which is specifically on
terrorist bombings, and the 1999 convention, which is limited to financing
of terrorism. Thanks to such narrowly defined conventions, India could
hardly invoke international law to deter Pakistan from carrying on with
cross-border terrorism in Kashmir.
The legal committee of the General
Assembly has so far held two rounds of talks on the proposed comprehensive
convention: in October 2000 and February 2001. The next round of talks
is due to be held next month. In the situation that followed the terrorist
attack in the US, India has been expressing optimism that it would be able
to gather greater support now for its proposed comprehensive convention.
For the record, in the two rounds
of talks, all the countries, including Pakistan, have accepted in principle
the need for a comprehensive convention. The differences have only been
on details. But those differences are serious enough to defeat the whole
purpose of having such a convention. Hence, there is a need to examine
closely the amendments that have been proposed to India's draft. The Muslim
countries have raised two key issues. Firstly, whether the comprehensive
convention should override the existing anti-terrorist conventions. Secondly,
what exactly constitutes terrorism.
In February 2001, Pakistan came
up with a disingenious amendment saying where any convention dealing with
"a specific category of terrorist offences" applies to an offence also
covered by the comprehensive convention, the existing convention shall
continue to "prevail." If Pakistan's amendment is incorporated, it will
render India's proposal toothless as the comprehensive convention can hardly
ever be enforced. To be sure, the existing piecemeal approach suits Pakistan
fine because of all the loopholes it offers to escape any liability under
international law.
The amendment related to the definition
of terrorism poses an even greater challenge to India. This is because
the proposal was submitted by Malaysia on behalf of the entire OIC group.
The bone of contention is that the draft convention does not anywhere define
terrorism. As it happened, India purposely did not put any definition of
terrorism so that the comprehensive convention is flexible enough to cover
any and every form of terrorism. But the Muslim countries, covertly pushing
the Pakistan line on Kashmir, asserted that the comprehensive convention,
like its sectoral counterparts, should have a clear definition of terrorism.
What really gave away their game was their contention that the definition
should "clearly differentiate between terrorism and the legitimate struggle
in the exercise of the right to self-determination and independence of
all peoples under foreign occupation." Pakistan President Pervez Musharraf
made much the same point later in Agra when he insisted on calling terrorists
in Kashmir "freedom fighters".
The exact amendment proposed by
the OIC group is the insertion of the following clause: "People's struggle
including armed struggle against foreign occupation, aggression, colonialism
and hegemony, aimed at liberation and self-determination in accordance
with the principles of international law shall not be considered a terrorist
crime." Thus, the rather radical principle being espoused by the Muslim
countries is, "peoples involved in a legitimate struggle were entitled
to fight, by whatever means, including those that would not be condoned
by the occupying power." Meaning, it can't be helped, as Musharraf suggested
in Agra, if innocent civilians happen to be killed by terrorists.
The dangerous implications of the
OIC's stand prompted other countries to strike a note of caution. In the
February talks, India's supporters argued that though the people's right
to struggle was as such legitimate, it could not be carried out "by whatever
means necessary but only within the confines of the rules of armed struggle."
It remains to be seen if Dr Mahathir and other Muslim moderates will, in
the changed environment, still insist on a restrictive definition of terrorism.