Terrorism does not have a universally agreed upon legal definition. However, it can be understood as a method of coercion utilized to spread fear and panic in society in order to achieve an ideological or political objective.
Terrorism under International Law
In 1937 the League of Nations (precursor, to the modern United Nations) prepared a draft convention for the prevention and punishment of terrorism. The draft convention defined terrorism as:
“All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or the general public”.
Although there are many national and regional definitions of terrorism, there is no one standard legal definition approved by the General Assembly of the United Nations. In the absence of a legal definition, attempts have been made since the 1980s to consolidate an academic definition. The General Assembly of United Nations (“UNGA”) endorsed a definition (non-binding) in 1994 via the Declaration on Measures to Eliminate International Terrorism that states that,
“Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes which notably is condemned as in any circumstances unjustifiable whatever the considerations of a political philosophical ideological, racial, ethnic, religious or other nature”.
The problem due to which a general international definition of terrorism could not be agreed upon is encapsulated in the phrase, “one man’s terrorist is another man’s freedom fighter.” Given the numerous struggles that exist globally, many for issues recognized by the UN Charter and other International Treaties/Conventions such as self-determination or fighting against a racist/apartheid regime, it was difficult for State to agree upon a definition that could potentially also apply to such armed struggles.
In 1977 the Protocol 1 that is an amendment protocol to the Geneva Conventions of 12th August 1949 aimed to define armed conflicts/ international conflicts as to also include:
“peoples fighting against colonial domination, alien occupation or racist regimes”
What this did was prevent countries from using domestic law to label groups fighting against colonial domination, alien occupation or racist regime – as terrorist groups. Thus, under this definition, regardless of what the domestic law of a country labeled such fighters as, under International Law, they would be regarded as ‘combatants’ and could potentially receive all the privileges of soldiers that fought for a State.
Moreover, in order to combat terrorism at an international level, there were twelve basic International Conventions introduced; legally binding upon the State parties once ratified. Each Convention on terrorism delineated below, defines terrorism with reference to the subject matter that it deals with. Thus, each convention provides a limited and a restricted definition of a terrorist act covered by the said convention.
- Convention on Offences on-board Aircraft, Tokyo 1963
- Convention of Unlawful Seizure of Aircraft, Hague 1973
- Convention of Unlawful Acts against the Safety of Civil Aviation, Montreal, 1971
- Protocol for Acts of Violence at Airports, 1988
- Convention on Crimes against Internationally Protected Persons, 1973
- Convention on Physical Protection of Nuclear Materials 1979
- Protocol on Safety of 6 Platforms in Continental Shelf, 1988
- Convention against the Taking of Hostages 1980
- Convention against Recruitment, Use, Financing and Training of Mercenaries, 1989.
- Convention on Safety of United Nations and Associated Personnel, 1994
- Convention against Suppression of the Financing of Terrorism, 1999
- Convention on the Nuclear Terrorism
All the aforementioned conventions are law-making treaties but they do not simultaneously serve as a constituent instrument of an implementing organization. It should be noted, that the above conventions primarily create an obligation upon the member states to cooperate with each other or to carry out prosecution procedures in accordance with their domestic laws. These treaties, also create an obligation upon the states to strengthen its domestic legislation. The compliance is being monitored by periodic UN General Assembly resolutions in which the member states are urged to ratify the convention and the implementation is executed via bilateral arrangements between the member states.
Since 2000 the United Nations General Assembly has been negotiating a comprehensive convention on international terrorism that has not been finalized yet. The definition of terrorism that has been proposed is as follows:
Any person commits an offence within the scope of the Convention if the act causes:
“(a) Death or serious bodily injury to any person; or
(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or
(c) Damage to property, places, facilities, or systems referred to in paragraph 1 (b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.”
Types of Terrorism
In order to develop a better understanding of terrorism in Pakistan, it is important to explore the different types of terrorism that exist in the country. The types are as follows:
- Ideological Terrorism
Anarchist terrorism, religious terrorism, nationalist/separatist terrorism, and single-issue extremism fall under the category of ideological terrorism.
- Physical Terrorism
Physical terrorism involves violence that requires contact. Such terrorist activities are mostly carried out in limited areas of physical space such as Mosques, Imambargahs and specific regions of one dominating community such as blasts in Shia populated areas and Christian populated areas in Pakistan. A significant amount of physical terrorism is conducted through suicide bombings in Pakistan, whereby an individual detonates a bomb inside or near a target and kills himself in the process.
- Cyber Terrorism
Cyber terrorism, as the name suggests, is defined as the link-up of terrorism and cyberspace. It is generally understood to mean unlawful attacks or threats of attack against computers, networks and the information stored in them. Provided that these attacks are done to intimidate or coerce a government or its people to promote their political or social objectives.
Domestic law
Due to the prevailing security situation in Pakistan, and after the amendment in the Constitution of Pakistan, in 2015 and 2016, there were three Special Courts dealing with acts which could be labelled as ‘terrorism’. These included the Anti-Terrorism Courts under the Anti-Terrorism Act 1997, the Military Courts under the Pakistan Army Act 1952, and the Protection of Pakistan Act 2014’s Special Courts. The Protection of Pakistan Act, 2014 has since then lapsed.
The ATA criminalizes various acts as terrorism. It defines terrorism in two ways. First, it provides a general definition of terrorism in which actus reus elements and mens rea elements combine to form an offence. Secondly, it criminalizes specific offences which facilitate or promote terrorism, for e.g. involvement in terrorist organizations, terrorism financing, money laundering, glorification of terrorist and religious incitement. Furthermore, the ATA grants extraordinary powers to law enforcement agencies which will also be discussed in this section, along with the procedural aspects of the Act including provisions for bail and remand.
| Terrorism | Criminal Law |
| Legislation | Anti-Terrorism Act 1997 Fair Trial Act 2010 Qanoon e Shahadat Order | Pakistan Penal Code Criminal Procedure Code Qanoon e Shahadat Order |
| Jurisdiction | Anti-Terrorism Court | Criminal Court/Magistrate Sessions Court |
| Appeal | High Court | Appellate Court High Court |
| Arrest | Without warrant permitted upon reasonable suspicion of terrorist activity | Warrant needed for non-cognizable offences Without warrant permitted for cognizable offences |
| Remand | Minimum remand lasts from 15 to 30 days and may be extended to a maximum of 90 days | Person must be presented before the magistrate within 24 hours of arrest, who MAY extend the remand to a maximum of 15 days |
| Bail | To be granted by the ATC, High Court or Supreme Court | To be granted by a magistrate or by any court that may act as a court of appeal |
| Duration of Trial | 7 days limit | No prescribed limit |
| Admissibility of Confessions | Conditional Admissibility of confessions made to police | Admissible only if confession made in the presence of the magistrate |
| Elements to be proved in Court | Actus Reus is given more weight in terrorism cases Mens Rea: Proving either Design or Purpose is sufficient for conviction | Mens Rea and Actus Reus BOTH must be proved for a criminal conviction Mens Rea; BOTH Design and Purpose must be proven |