Terrorism today is not just confined to a state’s borders but cheers to globalization, it has now expanded to unfathomable horizons.
According to The United States 2007 National Intelligence Estimate:
“Globalization trends and recent technological advances will continue to enable even small numbers of alienated people to find and connect with one another, justify their beliefs, intensify their anger, and mobilize resources to attack—all without requiring a centralized terrorist organization, training camp, or leader (Anomic outsiders).”
The Internationalization of terrorism has raised several issues on enforcement and jurisdiction. Regardless, even today no globally accepted definition of the term exists, largely because of political differences (One man’s terrorist is another’s freedom fighter).
But a fundamental question that needs to be answered is whether terrorism is a criminal offence or an act of war.
The use of the term WAR by the media and our learned politicians has created an illusion of a constant state of war surrounding our day to day affairs;, “war on drugs, war on poverty, war on organized crime”.
State of war equips the government with the power to circumvent the rights and procedural protections ordinarily accorded to an accused.
It is argued (constructionist approach to defining terrorism) that terrorism is just a way of identifying someone with lesser rights that validates a concept which is purely a self-serving one i.e. justification for state power, withdrawal of Human Rights and expenditure on military hardware.
The reason why this view is popular is because two people having caused the same magnitude of damage to the society would be treated in completely different ways, the one charged with a criminal offence would have rights to a formal charge notifying exactly what he/she is being charged with, competent and relevant proof beyond a reasonable doubt, the right to cross-examine witnesses, to right to remain silent etc., while on the other hand in war its considered legal to kill the enemy to say the least.
A war takes place between two nation states. It does not connote situations of struggle between state and non-state actors such as criminal gangs, drug cartels, mafia etc. A mere involvement of the military does not make the struggle a war; it simply means that the military is being used in a police capacity. It moves us towards the second question, that shouldn’t the suspects of the war on drugs in Mexico or in other “wars” be entitled to the same rights under the criminal jurisdiction? Are they?
It is generally accepted that terrorists cannot be tried under the traditional criminal law as it is reactive and not proactive. Also, that charging it as a criminal offence and subsequent adherence to due process would take up a longer time before conviction.
In the absence of a definition as to who falls under the same and the excessive bargaining power of the state actors it’s not difficult to deduce whose interests would be furthered.
In the event of occurrence of a criminal activity in our locality, we take mitigating steps. However, the reaction of a rational individual to an act of terrorism is not the same. The constant bombardment of the idea of the existence of war has changed the national psyche. We agree to give up more rights, freedom, and privacy in the name of National security policies that are implemented without any cost-benefit or rationality analysis.
Terrorism or War, and politics are very intricately related: it’s not surprising that Non-state terrorism is much smaller in comparison to state terrorism and that funding to terrorist organizations are often state funding. The illusion creates opportunities for politicians, and it sure will take a long time before the white flag is raised.
 Essig. Terrorism: Criminal Act of Act of War? Implications for National Security in the 21st Century,18.
 Mike Masnick (9th Jan 2015) When We Call Criminal Acts ‘Terrorism’ We Destroy Our Rights And Sacrifice Our Principles. Retrieved form https://www.techdirt.com/articles/20150108/18213829642/when-we-call-criminal-acts-terrorism-we-destroy-our-rights-sacrifice-our-principles.shtml.
ABOUT THE AUTHOR
Tanvi Singh is a fourth-year Law student pursuing B.Com. LL.B. (Hons.) at Gujarat National Law University. Tanvi believes that deductions and deliberations must be made sincerely based on well-researched information. Her academic interests are in the field of International Trade Law, Law and Economics, Contracts and Arbitration.