Why terrorists cannot be treated like common criminals

Colonel (retd) Anil Athale on balancing the rule of law, human rights and security in the age of terrorism.

This article is dedicated to the memory of strategic expert B Raman who passed away recently.

A one-week global seminar was held at Salzburg, at the picturesque palace (made immortal by the movie Sound of Music) from September 1-5, 2007. I was amongst the three participants from India.

The one week intensive discussions saw participation of legal luminaries like US and Canadian Supreme Court judges, a British attorney general, Palestinians, Israelis, Afghans and representatives from over 30 nations that have been facing the threat of terrorism. Mercifully, there was no Pakistani for from experience I know that they have a knack of hijacking the agenda. (Under the ‘Chatham House’ rules I am constrained from quoting with attribution from the seminar. However, general discussion and conclusions can be made public).

In light of the recent courtroom drama on the encounter killing of four suspected terrorists by the Gujarat police on June 15, 2004 it is time we take a rational view of our war against terror. Unfortunately the debate on this vital subject has been hijacked by a screaming media constantly highlighting the girl (Ishrat Jahan) killed in this encounter while maintaining a deafening silence on other three persons. Any rational debate on this has also been made impossible by linking it with secularism, equating anyone who even remotely suggests strong measures as ‘communal’.

Two major points have sparked this article. The first and foremost is that rule of law does not mean rule by judges. The second issue is that what we are facing is a ‘war’ not some bunch of criminals or misguided individuals. The Salzburg seminar discussed threadbare the tension between the needs of the security forces to act and the judicial principle of fairness of treatment, equality, and respect for human rights.

There was a clear division amongst the participants, those who have suffered and continue to suffer terrorist attacks, those who have sympathy for the ‘root causes’ and those like the European nations who have so far escaped this scourge and having a free ride. Much time was spent on defining the principles on which a model anti-terrorism law should be based that would meet these contradictory requirements.

There are two broad views on terrorism. One view sees it as a law and order problem that can be dealt with ordinary law. Terrorists in this view are individual criminals. The other view sees this as a war against the State. In this view, terrorism cannot be dealt as law and order issue but has to be dealt with full force of the State. Since this is often done on the soil of one’s own country, special laws have been enacted to insulate the security forces from judicial scrutiny.

Another difference came out during the deliberations, that between the developed world where the institutions of ‘State’ are strong and effective and the developing world where these are weak giving a chance to outfits like Al Qaeda, Lashkar-e-Tayiba, the Taliban and Indian Mujahideen etc to hijack a cause and carry out terror attacks worldwide. Any further weakening of the State under the guise of human rights works in favour of the terrorists. In the former case there is need to design laws and systems to protect an individual while in the later case it is preventing anarchy.

The Indian sub-continent has been extremely lucky in escaping the catastrophe that was intended by the terrorists. For instance, luckily and due to the bravery of the policemen/women and staff on duty, during the attack on Parliament, not many persons were killed. This happened because the terrorists failed to get into the Parliament building. In another lucky break, the explosive laden car (with enough explosives to blow up the Parliament building) failed to explode. Can we imagine a situation where the terrorists would have managed to enter the Parliament, kill hundreds of MPs and blow up the Parliament building? All logic says that this would have meant a war between India and Pakistan with a real possibility of even a nuclear exchange! In this case, by a conservative estimate at least a few millions would have died!

The point being made is that terrorists, if not stopped in their tracks, can initiate a chain of events that can lead to a catastrophe.

How the British dealt with terrorists is illustrated by an incident that took place in the immediate aftermath of London train bombing of 2005. Jean Charles de Menezes was a Brazilian man shot dead by the London Metropolitan police at Stockwell tube station on the London Underground on July 22, 2005 after he was misidentified as one of the fugitives involved in the previous day's failed bombing attempts.

The death sparked an intense public debate over a shoot-to-kill practice known as Operation Kratos. The code-name was dropped in 2007, but the policy continues. Police had put a block of flats in London, under surveillance. Plain-clothes officers, armed with pistols, followed Menezes as he took a bus to Brixton tube station, before boarding another to Stockwell because the tube station at Brixton was closed. Specialist firearms officers were called to Stockwell. Just after Menezes entered a train, several officers wrestled him to the ground and fired seven bullets into his head at point blank range.

The Independent Police Complaints Commission launched investigations, the findings of which were initially kept secret. In July 2006, the Crown Prosecution Service said there was insufficient evidence to prosecute any of the officers -- although the Metropolitan Police was prosecuted under the Health and Safety at Work etc Act 1974. This alleged that the police service had failed in its duty of care to Menezes. The service was found guilty and fined.

Unlike the Ahmedabad encounter, there was no information or intelligence on the victim that he had links with any terrorist organisation. Need one say more.

Any government and its security apparatus is duty bound to prevent terror acts that kill innocent citizens. The administration has to act on the basis of ‘information’ and ‘intelligence’ and not judicially rigourous ‘evidence’. The security forces also do not have the luxury of deliberating on the ‘evidence’ in air-conditioned chambers for years before they arrive at the truth. They have to act to ‘prevent’ an event. The difference in role of administration and judiciary in these cases is like the difference between a surgeon who has to make a decision on a life-saving surgery and a doctor carrying our post mortem.

It is necessary to remind our judiciary of the prevalent Anglo Saxon jurisprudence that accepts actions in ‘good faith’. Any act done to defend the state, public order and peace is deemed in ‘good faith’ and is not an offence.

What the Ahmedabad and other cases have brought to light is lack of a legal instrument to the forces to act. So we see a spectacle of two agencies of the same government targeting each other. Indians need to be reminded that the US regularly carries out targeted killing using remote controlled drones. Is it any wonder that the US or UK has not suffered too many terror attacks while India has lost thousands of lives since 1993 Mumbai blasts. Mumbai alone has suffered six terror bombings and one direct attack (26/11 in 2008).

If we continue on this path of prosecuting our own intelligence, the day is not far when they will stop functioning. Is this the aim of some Indians?

Image: The encounter site in Ahmedabad where alleged terrorists Ishrat Jahan and three others were gunned down.