Terror in Mumbai - a legal perspective

Ruwantissa ABEYRATNE

On Wednesday 26 November 2008 groups of gunmen carried out brazen coordinated attacks on at least 10 sites in Mumbai, killing at least 125 people and wounding more than 300.

Through the years there have been numerous acts of criminality perpetrated against foreigners, the most common of which have been violence against civil aviation and attacks aimed at foreign embassies. There are various offences that can be perpetrated by private individuals or groups of individuals against civil aviation, the earliest common species of which was hijacking of aircraft.

Hijacking

Hijacking, in the late 1960s started an irreversible trend which was dramatised by such incidents as the skyjacking by Shiite terrorists of the TWA flight 847 in June 1985. The skyjacking of Egypt Air flight 648 in November the same year and the skyjacking of a Kuwait Airways Airbus in 1984 are other early examples of this offence. Aviation sabotage, where explosions on the ground or in mid air destroy whole aircraft, their passengers and crew, is also a threat coming through the past decades.

The Air India flight 182 over the Irish Sea in June 1985, PAN AM flight 103 over Lockerbie, Scotland in 1988, and the UTA explosion over Niger in 1989 are examples. Missile attacks, where aircraft are destroyed by surface to air missiles (SAM) have also occurred as early as in the seventies. The destruction of the two Viscount aircraft of Air Rhodesia in late 1978/ early 1979 are examples of this offence. A re-emerging threat, namely armed attacks at airports, shows early occurrence in instances where terrorists opened fire in congested areas in the airport terminals. Examples of this type of terrorism are: The June 1972 attack by the Seikigunha (Japanese Red Army) at Ben Gurion Airport, Tel Aviv; The August 1973 attack by Arab gunmen on Athens Airport; and the 1985 attacks on Rome and Vienna Airports.

The suicide bombing of the United States Embassy in Beirut in April 1983 that killed over 60 people, mostly embassy staff members and U.S. marines and sailors was one of the deadliest attacks on foreigners ever carried out. In March 1992 the Israeli Embassy in Buenos Aires was bombed as a consequence of which 29 people lost their lives and hundreds were wounded including embassy staff and passers-by, Argentinians and Israelis. Hundreds of people were killed in simultaneous car bomb explosions at United States Embassies in Dar es Salaam, Tanzania and Nairobi, Kenya.

Jurists and lawyers have grappled with and evolved principles on the responsibility of a State for private acts of criminality against foreigners on their soil. The fundamental principle that has emerged in this sustained evolution is that a State cannot be expected to anticipate every act of terrorism and therefore does not carry absolute liability. However, at international law, there are concrete legal principles that evaluate the responsibility of a State for private acts committed against foreigners.

The fundamental issue in the context of State responsibility for the purposes of this article is to consider whether a State should be considered responsible for its own failure or non-feasance to prevent a private act of terrorism against civilians, both foreigners and locals alike.

Theory of Complicity

At the core of the principal-agent dilemma is the theory of complicity, which attributes liability to a State that was complicit in a private act. Hugo Grotius (1583-1645), founder of the modern natural law theory, first formulated this theory based on State responsibility that was not absolute. Grotius’ theory was that although a State did not have absolute responsibility for a private offence, it could be considered complicit through the notion of patienta or receptus. While the concept of patienta refers to a State’s inability to prevent a wrongdoing, receptus pertains to the refusal to punish the offender.

A different view was put forward in an instance of adjudication involving a seminal instance where the Theory of Complicity and the responsibility of states for private acts of violence was tested in the Jane case of 1925. The case involved the Mexico-United States General Claims Commission which considered the claim of the United States on behalf of the family of a United States national who was killed in a Mexican mining company where the deceased was working. The United States argued that the Mexican authorities had failed to exercise due care and diligence in apprehending and prosecuting the offender.

The decision handed down by the Commission distinguished between complicity and the responsibility to punish and the Commission was of the view that Mexico could not be considered an accomplice in this case.

Condonation Theory

The emergence of the Condonation Theory was almost concurrent with the Jane case decided in 1925 which emerged through the opinions of scholars who belonged to a school of thought that believed that States became responsible for private acts of violence not through complicity as such but more so because their refusal or failure to bring offenders to justice was tantamount to ratification of the acts in question or their condonation.

The theory was based on the fact that it is not illogical or arbitrary to suggest that a State must be held liable for its failure to take appropriate steps to punish persons who cause injury or harm to others for the reason that such States can be considered guilty of condoning the criminal acts and therefore become responsible for them.

The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against terrorist acts, in particular with regard to the financing of terrorist acts. The United Nations General Assembly, on 9 December 1999, adopted the International Convention for the Suppression of the Financing of Terrorism, aimed at enhancing international co-operation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators.

The Convention, in its Article 2 recognises that any person who by any means directly or indirectly, unlawfully or wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out any act which constitutes an offence under certain named treaties, commits an offence.

One of the treaties cited by the Convention is the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December, 1997.

The United Nations has given effect to this principle with Resolution 2625 (XXV) of 24 October 1970 when it proclaimed that every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.

Encouraging

Here, the words encouraging and acquiescing in organized activities within its territory directed towards the commission of such acts have a direct bearing on the concept of condonation and would call for a discussion about how States could overtly or covertly encourage the commission of such acts. Steven Metz, in his article State Support for Terrorism, Defeating Terrorism, Strategic Issue Analysis identifies three categories of such support: Category I support entails protection, logistics, training, intelligence, or equipment provided terrorists as a part of national policy or strategy; Category II support is not backing terrorism as an element of national policy but is the toleration of it; Category III support provides some terrorists a hospitable environment, growing from the presence of legal protections on privacy and freedom of movement, limits on internal surveillance and security organizations, well-developed infrastructure, and emigrant communities.

The International Law Commission in its Draft Code of Crimes Against the Peace and Security of Mankind, International Law Commission Report (1996, Chapter II Article 2) has established that a crime against the peace and security of mankind entails individual responsibility, and is a crime of aggression.

Role of Knowledge

Another method of determining State responsibility lies in the determination whether a State had actual or presumed knowledge of acts of its instrumentalities, agents or private parties which could have alerted the State to take preventive action. International responsibility of a State cannot be denied merely on the strength of the claim of that State to sovereignty.

Apart from the direct attribution of responsibility to a State, particularly in instances where a State might be guilty of a breach of treaty provisions, or violate the territorial sovereignty of another State, there are instances where an act could be imputed to a State. Imputability or attribution depends upon the link that exists between the State and the legal person or persons actually responsible for the act in question.

The sense of international responsibility that the United Nations ascribed to itself had reached a heady stage at this point, where the role of international law in international human conduct was perceived to be primary and above the authority of States. In its Report to the General Assembly, the International Law Commission recommended a draft provision which required that every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law.

This principle, which forms a cornerstone of international conduct by States, provides the basis for strengthening international comity and regulating the conduct of States both internally - within their territories - and externally, towards other States. States are effectively precluded by this principle of pursuing their own interests untrammelled and with disregard to principles established by international law.

The above discussion leads one to conclude that the responsibility of a State for private acts of individuals is determined by the quantum of proof available that could establish intent or negligence of the State, which in turn would establish complicity or condonation on the part of the State concerned. One way to determine complicity or condonation is to establish the extent to which the State adhered to the obligation imposed upon it by international law and whether it breached its duty to others.

In order to exculpate itself, the State concerned will have to demonstrate that either it did not tolerate the offence or that it ensured the punishment of the offender. Professor Ian Brownlie in his book System of the Law of Nations: State Responsibility brings forth the view that proof of such breach would lie in the causal connection between the private offender and the State. In this context, the act or omission on the part of a State is a critical determinant particularly if there is no specific intent. Generally, it is not the intent of the offender that is the determinant but the failure of a State to perform its legal duty in either preventing the offence (if such was within the purview of the State) or in taking necessary action with regard to punitive action or redress.

Finally, there are a few principles that have to be taken into account when determining State responsibility for private acts of individuals that harm foreigners in their territories. Firstly, there has to be either intent on the part of the State towards complicit or negligence reflected by act or omission. Secondly, where condonation is concerned, there has to be evidence of inaction on the part of the State in prosecuting the offender. Thirdly, since the State as an abstract entity cannot perform an act in itself, the imputability or attribution of State responsibility for acts of its agents has to be established through a causal nexus that points the finger at the State as being responsible. For example, The International Law Commission, in Article 4 of its Articles of State Responsibility states that the conduct of any State organ which exercises judicial, legislative or executive functions could be considered an act of State and as such the acts of such organ or instrumentality can be construed as being imputable to the State.

This principle was endorsed in 1999 by the International Court of Justice which said that according to well established principles of international law, the conduct of any organ of a State must be regarded as an act of State.

The law of State responsibility for private acts of individuals has evolved through the years, from being a straightforward determination of liability of the State and its agents to a rapidly widening gap between the State and non State parties. In today’s world private entities and persons could wield power similar to that of a State, bringing to bear the compelling significance and modern relevance of the agency nexus between the State and such parties. This must indeed make States more aware of their own susceptibility.

(The writer is Coordinator, Air Transport Programmes International Civil Aviation Organization, Montreal, Canada.)