Counter-terrorism: an evolving regime

Does an international regime on terrorism exist? Some have argued that at present what we observe is merely a US-led coalition of states targeting certain threats to their own security. However, on applying Krasner's canonical definition of a regime as ‘principles, norms, rules and decision-making procedures around which actor expectations converge in a given issue-area’, we can identify the contours of a regime.Footnote ¹ We may conclude that the regime is presently at a formative moment, propitious for revealing the operation of contending forces.

We can identify the following regime principles: (1) terrorism is a threat to all states, regardless of ideology, civilisational identity or level of development; (2) terrorism should not be employed as a weapon of statecraft; and, (3) terrorism is a transnational threat and can be tackled only by cooperation among states. Among the norms of this regime is the idea that states should deter and punish terrorists. The most debated norm is the claim that countries have the right and responsibility to intervene if the ‘host country’ or ‘sponsor’ is unable or unwilling to tackle terrorism. The rules of the counter-terrorism regime are gradually being established. One notable success has been in the area of interdiction of terrorist financing. The procedures appear to be more developed than the foundational components of the regime. Quiet, functional cooperation among intelligence and police bureaucracies is ongoing.

International Relations theories and the counter-terrorism regime

Realists tend not to be sanguine about cooperation against terrorism.Footnote ² The Structural Realist paradigm posits that the norms and rules of the counter-terrorism regime, insofar as it exists, emerge from the threat perceptions of powerful states.Footnote ³ Currently the dominant powers are invested in ‘identifying’ terrorism as the pre-eminent threat to the sovereign state system, one that can be defeated only by inter-governmental cooperation. Decision-makers in the world's capitals are calculating the implications of this project for their own internal and foreign policies. Weaker states have no choice but to follow the lead of the more powerful, although they may make virtue out of necessity by echoing the rhetoric of the regime. While this paradigm correctly predicts that India's policies will become congruent with regime preferences, it ignores the potential for agency and incorrectly depicts India as solely an object of the regime.

Analytical approaches that are more sensitive to domestic conditions take a different view. Statist Realist approaches and Domestic Politics models take into account the effect of a country's values, leadership structures, and economy on its security perceptions and policies. They predict that the counter-terrorism regime's effect on India will be refracted through the prism of the country's political, social and economic structures. Similarly, Constructivists suggest that successful norm diffusion depends greatly on the social and cultural characteristics of norm adopters.Footnote ⁴

These three approaches acknowledge the importance of domestic factors and national identity but tend to take them as ‘given’, thereby ignoring the potential for the external transformation of domestic forces. In addition, their view of regimes as constraining or regulative is over-simplified and misrepresents the power of international regimes. I propose that regimes influence states through four processes: definition, categorisation, institutionalisation, and enforcement.

First and foremost, the regime names or defines the issue and enables countries to recognise it as a problem. For instance, the international human rights regime defines the issue as the infringement of the basic rights of individuals. Regimes also divide international actors into different categories and assign them identities. The nuclear non-proliferation regime, for example, categorises states into Nuclear Weapon States and Non Nuclear Weapon States.

These constitutive processes of definition and categorisation set up a range of possible identities for states. Standards for appropriate and responsible behaviour for each identity are derived from these processes. These standards are codified in, and enforced by, institutions. National policy-makers become aware of the cost-benefit calculus that is being institutionalised by the regime and construct their country's identity accordingly. Indian policies are modified in order to establish and maintain India's preferred identity – to be placed in the ‘right’ category. It is, in the first instance, by creating and policing identities that regimes have an impact on state behaviour. In this way, although the counter-terrorism regime is as yet lacking in institutions and enforcement mechanisms, it has influenced India's policies.

The international regime is itself constituted by states. Their actions create its principles, norms, rules and procedures. Obviously, not all states are equally able to shape the regime – there are ‘norm takers’ and ‘norm makers’.Footnote ⁵ Yet, hegemons that are instrumental in regime construction will become constrained by their own normative rhetoric. Further, while the US and its concerns are currently at the centre of the counter-terrorism regime, other states deploy normative resources to further their own interests. India, as I will show, has been exercising agency vis-à-vis the regime. Eventually, these actions by relatively weaker states will strengthen some parts of the regime's normative structure and weaken others.

Definition

The definition of terrorism has long been a battlefield in power politics and academia. One 1980s study found 109 definitions of terrorism in the literature.Footnote ⁶ From the perspective of international law, terrorism has long been ‘a term without legal significance […] at once a shorthand to allude to a variety of problems with some common elements, and a method of indicating community condemnation for the conduct concerned.’Footnote ⁷

UN General Assembly (UNGA) Resolution 3034, a response to a spate of terrorist incidents, set up an Ad Hoc Committee on International Terrorism in 1972.Footnote ⁸ The Committee's deliberations were hampered by a sharp division between Western countries and newly-independent nations. The former favoured practical inter-governmental measures, while the latter stressed the importance of defining terrorism so as to distinguish terrorists from freedom fighters, and reminded the international community of the need to address the root causes of terrorism – in poverty, colonial occupation, neo-imperialism, or racism.Footnote ⁹ I will call these the ‘freedom fighter’ and ‘root causes’ arguments. Accordingly, the 1972 Committee's mandate included not only ‘measures to prevent international terrorism’ but also a ‘study of the underlying causes’. The UNGA seemed to be at least as interested in understanding and rationalising terrorism as in ending it.Footnote ¹⁰

During this period, conventions dealing with specific threats, like the 1979 International Convention against the Taking of Hostages did come into effect – the ‘piecemeal approach’. This approach implicitly moved terrorism on to the international agenda. A legal scholar writes: ‘The adoption of statutes defining international terrorism, classifying it as a crime under national law and investing national courts with jurisdiction represents a claim that international terrorism is a crime subject to universal jurisdiction […] this would evolve into a norm of international law.’Footnote ¹¹

The competing ‘comprehensive approach’ was favoured by countries intent on safeguarding the legitimacy of self-determination movements. One achievement on their part was to secure the insertion of a clause in the 1979 Hostage Convention stating that it did not apply to wars of self-determination.Footnote ¹² Similarly, the Political Declaration at the Non-aligned Summit in New Delhi (1983) emphasises that each case of terrorism is different.Footnote ¹³ The declaration thereby suggests that it is impossible to define terrorism.

By the 1990s, with the adoption of terrorist tactics by movements globally, and the increased vulnerability of modern societies to disruption, world opinion became less tolerant of terrorism. Peterson finds evidence for this shift in the transformed language of the titles and preambles of UNGA resolutions, as well as in the higher rate of ratification of conventions against terrorism.Footnote ¹⁴ The right to self-determination cannot justify acts of terror, as per UNGA Resolution 44/29 (1989).Footnote ¹⁵ The 1994 UNGA Declaration on Measures to Eliminate International Terrorism conspicuously omitted references to liberation movements, ‘state terrorism’ (terrorism carried out by states), or understanding for the offender.Footnote ¹⁶

Thus, even before the 2001 attacks on the US (‘9/11’), states had increasingly taken a hard line on terrorism. However, it is important to acknowledge the dramatic impact of 9/11 on the global agenda. UN Security Council Resolution 1373 (SC 1373), passed soon after the attack, completely rejected ideological justifications for terrorism. Although it does not explicitly define terrorism, it has definitional effects.Footnote ¹⁷ SC 1373 is broad in scope and permanent in application – almost taking on a legislative authority.Footnote ¹⁸

This resolution has become a rallying point for ‘victim states’ like India.Footnote ¹⁹ Indian leaders draw attention to the fact that it proscribes all forms of support to terrorists. Therefore, Pakistan's claim that it merely gives moral or political support to militants in Kashmir is sufficient to render it culpable.Footnote ²⁰ Pakistan, for its part, invokes other international norms in responding to India's repeated references to SC 1373, condemning the ‘selective approach to UN resolutions.’Footnote ²¹

As per the dominant definition today, terrorism is non-political, in that it targets all members of the sovereign state system. This is a direct refutation of the ‘freedom fighter’ argument.Footnote ²² Like the pirate, the terrorist is the enemy of all mankind (hostis humanis generis). Such a definition provides a lowest common denominator that states can sign on to. It also has the effect of polarising attitudes towards diverse movements – from secular self-determination struggles to indigenous rights activism to religious militancy – and delegitimising all of them if they employ violence against the state. Supporters of this approach believe that the distinction between freedom fighters and terrorists can be made on a case-by-case basis.Footnote ²³ As Richard Price puts it, the international community has decided that it knows terrorism when it sees it.Footnote ²⁴

India and definition

In the 1970s, when terrorism appeared on the agenda of the international community, India was maintaining its identity as a leader of the Third World. Consequently, it opposed Western resolutions and supported the ‘freedom fighter’ and ‘root causes’ objections to attempts at definition.Footnote ²⁵ However, by the 1990s, India perceived that the tide of world opinion had turned. At the same time, policy-makers in New Delhi were finding evidence of the transnational Islamic links of the militancy in Kashmir. Moreover, there was a reorientation of foreign policy in general at this critical juncture as India faced the post-Cold War world. Positions became much more pragmatic and strategic and were less likely to be guided by principles such as Third World solidarity or non-alignment.

Indian diplomats saw that they would benefit by supporting the effort to define terrorism, and specifically its definition as anti-state violence. Their goal was to create an identity for India in this nascent regime as a norm leader and a victim of terrorism. They began to oppose the ‘freedom fighter’ and ‘root causes’ arguments, on the grounds that they are politically motivated and counterproductive. Their current position is that international legal mechanisms cannot, and should not, concern themselves with root causes: ‘Terrorists are criminals and therefore, alibis or rationalisations advanced by the advocates of the “root causes” cannot absolve terrorists from their culpability.’Footnote ²⁶

India also draws attention to the fact that modern terrorism does not heed national borders, and declares that all violent acts against all states deserve condemnation. Indian Prime Minister Vajpayee said in his address to the UNGA: ‘We must firmly rebuff any ideological, political or religious justification […] reject self-serving arguments seeking to classify terrorism according to its root causes, and therefore justifying terrorist action somewhere while condemning it elsewhere. Those that advance these arguments should explain what the root causes of the brutal acts of September 11 were.’Footnote ²⁷

India recognises the possibility that some states, in a universal body, could rally resistance to this definition. Moving away from its preference for large councils and majority voting, India has expressed caution about the utility of an international conference to frame a consensus definition of terrorism.Footnote ²⁸

Instead, in 1996, just as the international community was expressing concern about terrorism, India presented it with a draft Comprehensive Convention on International Terrorism (CCIT).Footnote ²⁹ The UNGA Sixth Committee formed an Ad Hoc Committee, which in turn created a Working Group to conduct negotiations on the draft.Footnote ³⁰ Quarrels over the definition of terrorism, the non-inclusion of state terrorism and the possible effects on humanitarian issues, emerged as obstacles to the adoption of a first draft and persist after several years of negotiations.Footnote ³¹

This draft CCIT attempts to broaden the definition of terrorism to include all types of internal challenges, and narrow it to exclude states as perpetrators of terrorism. Article 2 which has a definitional effect covers ‘any means’ used in a terrorist act, defined as one intended to intimidate a population or to compel a government or international organisation. The CCIT is comprehensive in that it is meant to plug gaps in the existing sectoral conventions, target countries that provide support and safe havens to terrorists, and deal with multi-dimensional terrorist acts.Footnote ³² While acts of terrorism are illegal under various conventions, there is no single law under which countries can be sanctioned. For instance, because the Montreal Convention on Civil Aviation does not address the state sponsorship of perpetrators, it was not cited in the trial relating to the 1988 bombing of Pan Am 103.Footnote ³³ India now has an enormous first-mover advantage in the formulation of a definition and has been working to garner support for it in various capitals and international organisations. Negotiations are currently deadlocked.

Categorisation

Regimes define the problem to be confronted, and also define categories of members with corresponding rights and responsibilities. The current definition of terrorism has the effect of conclusively sidelining the issue of state terrorism, which was understood to mean the colonial or neo-colonial exploitation of other countries, and/or the use of excessive force against a state's own citizens. Israel has been accused of ‘state terrorism’ against its Arab citizens and neighbouring states.

As per the current definition, states are sought to be held responsible for their sponsorship of terrorism. Sponsorship includes the provision of territorial sanctuary, money, arms, training, intelligence, and even diplomatic support to terrorists. Such actions are offenses against the sovereignty of the target state, and are already illegal under international law.Footnote ³⁴ However, by linking them to terrorism, state culpability for these offenses becomes even more pronounced in the court of public opinion.

If terrorism, by definition, is directed against the state, states can have two identities: ‘victims’ or ‘state sponsors’ of terrorism. How is this categorisation administered? To an extent, the UN has identified some countries and individuals as ‘terrorist’ through sanctions. Libya was sanctioned for its role in the Pan Am bombing, and in 1996 diplomatic sanctions were imposed against Sudan. In 1999 the Taliban were sanctioned for their role in the East African embassy bombings, and these financial sanctions were later extended to Al-Qaeda and ‘associated entities’.

Since we do not yet have a comprehensive convention, or administrative body akin to the Nuclear Nonproliferation Treaty in the global nuclear regime (which classifies countries into Nuclear Weapon States and Non-Nuclear Weapon States) the US as ‘norm leader’ sometimes performs the function of categorisation. In 1979 the US Export Administration Act made it mandatory for the State Department to list countries supporting terrorism.Footnote ³⁵ Currently on the list are Iran, North Korea, Cuba, Syria and Sudan.Footnote ³⁶

US State Department reports also categorise countries on the issue of counter-terrorism. The US government presents these reports as being objective.Footnote ³⁷ This impression is strengthened when foreign political actors cite them in their arguments. However, the definitions and measurements employed by the State Department have been questioned.Footnote ³⁸

India and categorisation

India deploys its secular and democratic credentials to assure itself of the benefits of membership in the ‘victim of terrorism’ category.Footnote ³⁹ Often, India's categorisation is maintained by emphasising its difference from Pakistan. Representatives of India have demanded that the US declare Pakistan a ‘state sponsor’.Footnote ⁴⁰ Fearing it would be thus categorised, Pakistan allegedly moved its terrorist training camps from Pakistan-occupied Kashmir to Afghanistan in 1994.Footnote ⁴¹

What are the benefits to India of being categorised as a victim of international terrorism? First, India can make appeals to the leaders of the international community to support its policies. The Kashmir dispute with Pakistan illustrates India's evolving position on the international community's role. In 1948 India referred the matter to the UN, putting it on the agenda of the international community. However, the Indian government swiftly became disillusioned with the UN, which it perceived as favouring Pakistan as a result of Cold War alignments. During the 1950s and 1960s India positioned Kashmir as a purely internal issue where Pakistan had no locus standi. After the 1971 war with Pakistan, India signed the Shimla Agreement where Kashmir was framed as a bilateral issue. India then concentrated on keeping international players out of the dispute, because they werenot perceived as neutral and their attention was seen as a strategic equaliser for Pakistan.Footnote ⁴²

In the discourse on Kashmir India has historically taken shelter behind the sovereignty norm, but is now finding counter-terrorism norms more useful. It is framing Kashmir as an instance of international or cross-border terrorism sponsored by Pakistan and fundamentalist Islamist actors. However, at times India's identification of a pan-Islamic threat collides with its attribution of responsibility for cross-border attacks to the Pakistani government.Footnote ⁴³

Second, positioning itself in the category of states that are fighting terrorism allows India to cement alliances with other aspirants to this status, for instance, with Russia, China and certain countries in Central Asia.Footnote ⁴⁴ India uses counter-terrorism as the foundation for bilateral collaboration, including military-to-military ties, which would otherwise be controversial. India offered the US bases, airfields and intelligence for the anti-Taliban campaign in Afghanistan.Footnote ⁴⁵ India and the US set up a Joint Working Group on Counterterrorism in 2000.Footnote ⁴⁶ This was the first time that the American government had joined such a group.Footnote ⁴⁷ In this less formal setting, the two countries can discuss issues ranging from strategies against Al-Qaeda to border surveillance technology and financial laws.Footnote ⁴⁸ The Indian Army, experienced in counter-insurgency, now provides training for American soldiers, while Indian police officers receive instruction from their US counterparts.Footnote ⁴⁹

India did not have full diplomatic relations with Israel until 1992 and was a supporter of the Palestinian cause. India's large Muslim population constrains the government from adopting an across-the-board pro-Israel stance. Counter-terrorism is more acceptable as a basis for cooperation. Close relationships in military procurement, training and exchange have been initiated with Israel.Footnote ⁵⁰ The official communiqué of the 2002 meeting of the India-Israel Joint Working Group on Counter-terrorism stated that their dialogue was undertaken in the context of international counter-terrorism, and specifically in light of SC 1373.Footnote ⁵¹

Institutionalisation

International institutions represent a concentration of technical and organisational resources devoted to an issue-area. Their services include standardisation, dispute settlement, and the facilitation of discussion. What is the current status of institutions in counter-terrorism? The US government's ‘global War on Terror’ is usually seen as weakening international institutions. In fact, institutionalisation is shaped by the processes of definition and categorisation in four ways. If hegemony has left its mark on these primary processes, institutionalisation can serve the hegemon's interests.

First, definition and categorisation delineate the identities that countries can aspire to, and this impacts on organisations. Institutions based on ‘non-aligned’ or ‘Islamic’ identities may be fractured as their members realise the importance of being placed in the ‘right’ category by the counter-terrorism regime. India is finding that its positions on counter-terrorism distance it from the non-aligned movement. Second, definition and categorisation are reinforced by institutions. It has become de rigueur for all kinds of international organisations to issue condemnations of terrorism at regular intervals. Even the long-resistant Organization of Islamic Countries (OIC) in 1999 produced the Burkina Faso draft attempting to define terrorism.Footnote ⁵²

Third, multilateral entities operate within the parameters set by definition and categorisation. By designating terrorism as ‘a threat to international peace and security’ the UNSC paved the way for a military approach to terrorism.Footnote ⁵³ In particular, Resolution 1368 of 12 September 2001 legitimises unilateral military action. Rather than calling for collective action, it extends the right to national self-defence to anti-terrorist operations.Footnote ⁵⁴ Finally, multilateral institutions create rules and procedures at the national level which strengthen definitions and categorisations. Under the Terrorist Financing Convention, for instance, states must make the provision of funding for terrorist activities a criminal offense under their domestic laws and confiscate assets allocated for terrorist purposes. Similarly, in April 2005 the International Convention for the Suppression of Acts of Nuclear Terrorism was adopted by the UNGA.Footnote ⁵⁵ Its provisions for the treatment of detainees might change post-9/11 US practices.Footnote ⁵⁶

India and institutions

For some years now, India has used international forums to reinforce its chosen role in counter-terrorism, working to influence their resolutions and agreements to reflect its preferred norms. As early as June 1993, as states debated the Declaration and Program of Action at the World Conference on Human Rights in Geneva, the Indian delegation worked to include language to the effect that terrorism constituted a violation of human rights. The leader of the delegation took credit for the fact that for the first time there was no qualifier in the declaration distinguishing terrorism from struggles for self-determination.Footnote ⁵⁷

At the Tenth Non-aligned Movement (NAM) Summit India successfully lobbied for the inclusion of a clause in the Final Declaration calling upon member-states to ‘fulfill their obligations to international law and refrain from organizing, instigating and assisting’ terrorism in other countries.Footnote ⁵⁸ The negotiation of the final declaration at the Twelfth NAM Summit in Kuala Lumpur a decade later in 2003 once again demonstrated India's use of norms and its interest in influencing multilateral bodies. India moved an amendment condemning state-sponsored terrorism. In response, Pakistan submitted an alternative text condemning attempts to portray self-determination movements as terrorism.Footnote ⁵⁹ Such encounters between India and Pakistan at international forums are not the exception but the rule.Footnote ⁶⁰

India's contribution to the ongoing efforts to conclude a CCIT have been documented above. India is persisting in its efforts towards the adoption of the CCIT, perceiving a certain value in multilateralism. Since the adoption of SC 1373, however, some states perceive this comprehensive convention as redundant.Footnote ⁶¹ Polly Nayak predicts that New Delhi's preference for multilateral over bilateral cooperative agreements will incline it to work through the UN and various Asian counterterrorism groups.Footnote ⁶²

While multilateral efforts help India consolidate its identity in the global counter-terrorism regime, at the regional level India practises selective multilateralism. At its first summit in 1985, the South Asian Association for Regional Cooperation (SAARC) issued a declaration on terrorism and set up a study group. India was uncomfortable with this development.Footnote ⁶³ The Indian government opposed stringent extradition procedures. Citing its commitment to NAM and self-determination movements, it argued that each state should have the discretion to determine the bona fide character of an extradition request. According to a former official of the Defence Ministry, New Delhi rejected a 1986 proposal for a joint statement by South Asian nations eschewing support for terrorists in neighbouring countries because it would have indicted India's covert support of militant Tamil groups in Sri Lanka.Footnote ⁶⁴

However, as the international counter-terrorism regime gains in strength, India finds itself able to secure its new revised preferences. At the fourteenth SAARC summit in 2007, India succeeded in bringing members on board with the condemnation of terrorism ‘in all its forms and manifestation, wherever and against whomsoever committed’, and with endorsement of the CCIT.Footnote ⁶⁵

At the bilateral level, there are three types of agreements among nations in the counter-terrorism field: framework agreements to facilitate the exchange of operational information,Footnote ⁶⁶ extradition treaties,Footnote ⁶⁷ and mutual legal assistance agreements in criminal matters.Footnote ⁶⁸ The Deputy Prime Minister announced India's interest in concluding as many extradition treaties as possible.Footnote ⁶⁹ India uses bilateral treaties to reinforce its reputation as a country that is serious about combating terrorism, including as partners those countries with whom there does not appear to be a strong likelihood of needing such arrangements.

India has long understood the value of participation in international institutions, and at this formative time, has been eager to work with multilateral bodies like the UN on terrorism. When it comes to regional bodies, India has been selective in its participation. India also pursues bilateral arrangements as a way of establishing its identity in the counter-terrorism regime.

Enforcement

Enforcement, which includes both positive and negative incentives, is the most visible aspect of the regime. The question of the ‘supply of terrorists’ having been marginalised along with the discourse of root causes, the focus is now on restricting the supply of resources to terrorists. These resources include weapons – especially those capable of mass destruction, money, and sanctuary.

Positive incentives for states to enforce these prohibitions can be material or non-material. The UNSC set up a Counter-Terrorism Committee (CTC) to monitor implementation of SC 1373. We note rapid compliance at least as measured by the reports submitted by countries to the CTC.Footnote ⁷⁰ Every member-state has submitted at least one report – unprecedented in the UN's history and testifying to the strength of the norm. The CTC has a mandate and funds to assist states to implement the measures set out in SC 1373. The US and other countries have also provided rewards to countries that have distanced themselves from terrorists (Libya) and provided financial and military assistance to those that claim to be fighting terrorism (Philippines). Non-material rewards include a wide range of benefits that come from inclusion in the community of civilised and normal states, that are described throughout this article.

None of the existing multilateral anti-terrorism conventions has specific enforcement measures – sanctions – to ensure that states abide by treaty obligations.Footnote ⁷¹ However, the various resolutions passed by the UNGA have at a minimum the status of important recommendations, and UNSC resolutions are binding on all members under Article 25 of the UN Charter (although it is unclear whether resolutions that are not under Chapter VII can be enforced). As mentioned above, the principle of self-defence can be invoked to sanction an alleged state sponsor of terrorism. Yet even these actions are subject to the criteria of necessity and proportionality, and some international lawyers argue that military intervention against terrorists would violate them.Footnote ⁷² Others retort that such a restrictive interpretation is inappropriate in the face of a growing menace.Footnote ⁷³

The major unresolved question facing the counter-terrorism regime today is: can enforcement be unilateral? The UNSC did not condemn the 1998 ‘anti-terrorist’ strikes by the US on Afghanistan and Sudan. This silence reinforced the American argument that non-compliance with SC 1373 amounts to just cause for the use of military force.Footnote ⁷⁴ The 2002 Afghanistan campaign targeted the Taliban government on the grounds that it had provided sanctuary for terrorists. These operations satisfied the norm that intervention had to be multilateral. Although the continued presence of foreign troops in Afghanistan has been criticised, the displacement of the Taliban was almost universally supported.

In Iraq, counter-terrorism norms were again invoked, though more controversially. One of the initial casus belli was the Iraqi government's sponsorship of Islamist terrorism. On the one hand, forced ‘regime change’ in Iraq flew in the face of the multilateral diplomatic efforts of the counter-terrorism regime. On the other hand, we should note that the US was obliged to pay obeisance to regime norms. The US did make an initial concerted effort to get UN approval, the then-President G. W. Bush promising in September 2002 that his administration would work to secure UNSC resolutions authorising intervention. In March 2003, after France, Russia and China announced they would veto any new ‘use of force resolution’ the US commenced its campaign outside the UN. Moreover, that the US found it expedient to organise a ‘coalition of the willing’ is a nod to the norm that interventions should be multilateral. A recent study of Afghanistan and Iraq finds that the US was constrained in its operations by certain norms (low collateral damage and discrimination), less constrained by others (sovereignty and multilateralism), and barely constrained by the norm of non-assassination.Footnote ⁷⁵

India and enforcement

As a self-proclaimed victim of terrorism, India pays close attention to issues of enforcement. The government draws on international law and practice to justify its actions within the country. At the same time, the imperative of maintaining its international identity acts as a constraint on internal policies – they must reflect determination to combat terrorism.

International obligations are cited to bolster the government's case for introducing stringent anti-terrorism laws, and this same legislation is praised by other countries as evidence of seriousness about counter-terrorism. In 2002 the government introduced the Prevention of Terrorist Activities Act (POTA), which was widely criticised for curbing press and civil liberties. POTA treated terrorist acts outside normal criminal procedure. Among the arguments justifying it we find references to the USA-PATRIOT Act and a similar British law.Footnote ⁷⁶ Even opponents of POTA cited the legislation's lack of safeguards similar to those included in the American and British laws.Footnote ⁷⁷ The US State Department Coordinator for Counter-terrorism, while congratulating India on POTA, revealed that American officials had contributed to its formulation.Footnote ⁷⁸ In upholding the constitutionality of this legislation, India's Supreme Court cited the international norms that the country was bound by – UNSC 1368 and 1373 as well as UNGA 56/1.Footnote ⁷⁹ POTA was repealed in September 2004 by the new Congress government and replaced by the Unlawful Activities Prevention Act (2005), which is also held to adversely affect civil rights. Footnote ⁸⁰

At the same time, India, like the US, is wary of multilateral institutions that could impose restrictions on enforcement and even intervene in domestic affairs. India rejected the International Criminal Court (ICC), which could evolve into a prosecutor of international terrorist activity.Footnote ⁸¹ The US is constructing a network of bilateral ‘non-extradition’ treaties prohibiting parties from producing each other's nationals before the ICC, thus undermining its effectiveness. In 2002, India signed such a treaty with the US.Footnote ⁸²

Indian decision-makers also nurse deep-rooted suspicions about the long-term effects of third-party intervention against terrorism. While calling on the international community to sanction Pakistan, India attempts to pick and choose when it comes to intervention. For instance, India demanded a suspension of international financial aid to Pakistan during their 1999 conflict, but rejected the UN Secretary-General's offer to dispatch a mediator.

India's response to the US intervention in Iraq is another illustration of the balancing act.Footnote ⁸³ Initially, the government had stipulated UN authorisation for a multinational peacekeeping force as a condition for participation.Footnote ⁸⁴ Yet after authorisation had been secured, and ignoring other incentives offered by the US, the government felt compelled to decline the US request for 17,000 Indian troops to be deployed to Iraq. This shows not only wariness about intervention, but also the influence of domestic factors – India's opposition parties and its large Muslim population would have factored into the calculations.

Enforcement is the aspect of the counter-terrorism regime that India is least comfortable with. While not averse to invoking its principles to justify its own military actions, India has avoided both multilateral restrictions on its freedom of action and unconditional support of unilateral actions by the hegemon.

What can we conclude from this description of the functions of the counter-terrorism regime and India's response to them? It is clear that Indian decision-makers are keenly aware of the regime's changing direction. They are engaged in an effort to reinforce the definition of terrorism as all violence against all states, and to secure for their country the identity of a victim of terrorism. In the process of establishing this identity, India ends up both directly and indirectly reinforcing dominant norms. When it comes to institutionalisation and enforcement India is more dubious about the role of the regime, as concerns arise about its potential for intervention within India in the long term. Here we see India keeping alive hopes for multilateral institutionalism in counter-terrorism.

Terrorism as local and international

I have shown above that India, modifying its earlier position, became a leader of the global movement towards defining terrorism as violence against the state. Under the influence of international norms, the Indian state recognises, and has been striving to define acts of violence against citizens and/or the government as terrorism – as opposed to ‘ethnic violence,’ ‘civil strife’ or ‘insurgency’. The December 2002 Report of India's National Security Advisory Board suggested the government use the term ‘terrorist’ to the exclusion of terms like ‘ultras, militants, or insurgents’.Footnote ⁸⁵ Appearing on CNN, an Indian Foreign Minister sharply corrected a reference to ‘militant groups’ in Kashmir, declaring that they were ‘terrorist organizations’.Footnote ⁸⁶

Further, India insists that the terrorist threat that it faces is international terrorism.Footnote ⁸⁷ Varun Sahni criticises the distinction between global and other types of terrorism:

If terrorism is truly global, a ‘segmented approach’ to counter-terrorism would be both ineffective and immoral.Footnote ⁸⁹ Indian diplomats assert that terrorism should be opposed regardless of its geographical or ideological features. A year before 9/11, the Indian Prime Minister warned that distance would not always insulate Americans from terror.Footnote ⁹⁰ The 2002 Delhi Declaration by Russia and India, in what was called a ‘pointed reference to Western – and particularly American – vacillation’ stated: ‘The fight against terrorism must not admit of any double standards […]’.Footnote ⁹¹ Foreign Secretary Kanwal Sibal declared:

Thanks to its portrayal of terrorism as a threat to all states, India can remind the United States of its responsibility to oppose Pakistan's involvement with terrorists.Footnote ⁹³ American reluctance to support India can be cited as softness or hypocrisy. On this point Robert Jervis wrote: ‘[…] Bush's answer to the question of what terrorists we are at war with may prove troublesome over the long run. It might have been more straightforward and honorable to declare that it was only terrorists who could menace American assets and allies that were our target.’Footnote ⁹⁴

A modern state

India draws on international norms about normal, modern, and moral polities to secure its preferred identity in the counter-terrorism regime. Although terrorism is understood to target all states, it comes in for particular condemnation when it is used against democracies. Indian elites make two parallel claims: first, that the availability of legal recourse for discontented groups delegitimises terrorism on Indian soil; second, that non-democratic polities like Pakistan cannot criticise India.Footnote ⁹⁵ In the face of his Pakistani counterpart's offensive at the twelfth NAM summit discussed above, the Indian Prime Minister played the democratic card: ‘He [Musharraf] talks of the oppressed people of Kashmir. These same people very recently cast their ballots in an election universally recognized as free and fair.’Footnote ⁹⁶

Indian leaders use democracy as a common denominator in establishing alliances in the global conflict with terrorists.Footnote ⁹⁷ The Indian Prime Minister and the US President concluded their 2001 meeting emphasising ‘as leaders of the two largest multi-pluralistic democracies’ that those who ‘equate terrorism with any religion are wrong, as are those who invoke its name to commit, support or justify terrorist acts.’Footnote ⁹⁸

India also highlights its secular credentials, such as constitutional protections for minority rights. Even the religious-nationalist Bharatiya Janata Party (BJP) government (1998–2004) engaged in the ‘othering’ of fundamentalism.Footnote ⁹⁹ Pakistan here plays the part of the ‘evil twin’. Pakistan is described in a government report as the ‘fount of religious extremism and international terrorism and a patron of the global narcotics traffic. Decades of misgovernance and military rule have prevented the democratic tradition from taking firm root […] Pakistan poses a threat not only to India […] [T]errorists have carried out murderous assaults in the US and East Africa.’Footnote ¹⁰⁰

As India presents terrorism as a global threat, it also makes a claim about the nature of that threat. Indian elites, mindful of domestic imperatives, may hesitate to name Islamists as the enemy – India has the world's second or third-largest Muslim population. Yet this population, living in a secular state and functioning democracy, is also an asset. The goal is to portray a secular India besieged by the forces of anti-modernism and fundamentalism. C. Raja Mohan, for instance, presents India's challenge as one of ‘[…] universalizing Enlightenment values amidst renewed resistance from obscurantist and orthodox forces.’Footnote ¹⁰¹ Indian diplomatic strategy is ‘recalibrated’ to reveal the roots of the terror network in Pakistan and Afghanistan.Footnote ¹⁰² To this end, Indian elites point out links between the individuals and groups involved in attacks on Western targets and those in India.Footnote ¹⁰³ Presenting itself as threatened specifically by Islamist terrorism allows India to position itself as a victim alongside Western states and claim the privileges they exercise in dealing with that threat.Footnote ¹⁰⁴

Responsible nuclear behaviour

The widespread concern about the use of Weapons of Mass Destruction (WMD) by terrorist organisations, or by states shielding them, creates an international norm that nuclear weapons should be under the tight and exclusive control of the Nuclear Weapon States (NWSs).

This has two implications for India. First, it has to establish its credentials as a responsible possessor of nuclear weapons, although it cannot have the status of NWS under the NPT.Footnote ¹⁰⁵ Indian decision-makers are aware that in the post-Cold War world the possession of WMD is strongly linked in the dominant discourse to sponsorship of terrorism and non-democratic forms of government. India's self-presentation as a victim of terrorism depends on the ‘appropriate’ governance of its nuclear capability. Second, India is able to play on the world's fears of a nuclear exchange to elicit international pressure against cross-border terrorism.Footnote ¹⁰⁶

India has worked patiently to ensure that its nuclear weapons do not affect its identity in the counter-terrorism regime. India acquired the epithet of a ‘responsible state with advanced nuclear technology’ in July 2005 when it signed an agreement on civil nuclear cooperation with the US. The India-US agreement symbolises the success of India's strategy to establish itself in the nuclear order – a move towards mainstream positions on arms control, tight control over nuclear assets, and restrained crisis behaviour. India had long opposed the binary division of countries into NWSs and NNWSs, but after its 1998 nuclear tests, has put forward its claim to be named as a NWS, thus accepting the constitutive processes of the non-proliferation regime. The parallels to its position on counter-terrorism are obvious. Both shifts were part of India's re-invention of its identity in the post-Cold War world.

One way in which India shows that its nuclear capability is appropriately governed is by restricting the proliferation of sensitive technologies, again playing up the contrast with Pakistan.Footnote ¹⁰⁷ In 2002, Sibal complained: ‘While deep concerns are mounting about the nexus between fundamentalism, terrorism and weapons of mass destruction, the spotlight is not on Pakistan which has all these ingredients of concern […]’.Footnote ¹⁰⁸ In his 2002 address to the UNGA the Indian Prime Minister accused Pakistan of adding ‘nuclear blackmail’ to its ‘quiver of state-sponsored terrorism.’Footnote ¹⁰⁹

India has also restricted its military options in order to establish that it uses its nuclear capability responsibly. During crises with Pakistan, the government refrained from attacks on training camps and ‘hot pursuit’ across the de facto border – the Line of Control (LoC) that some sections of the public were advocating.Footnote ¹¹⁰ While India's stances during crises marked it as a mature country, Western fears of nuclear escalation boomeranged on Pakistan.Footnote ¹¹¹

Further, India uses its nuclear status to draw the world's attention to its problems with terrorism. The nuclearisation of the subcontinent renders terrorist attacks doubly dangerous, since they may lead, via escalatory steps, to nuclear war. In May 1999, the Indian army detected intrusions across the LoC. India successfully made the case that Pakistan had supported the incursion, thereby triggering pressure on the latter to withdraw. Similarly, the attack on Parliament in New Delhi on 13 December 2001 by militants allegedly supported by Pakistan, triggered a six month-long border standoff. As in 1999, India gained world sympathy, especially as the assault came only months after 9/11. American officials extracted promises from Pakistan to crack down on cross-border movements and religious mobilisation.

India's External Affairs Minister stated that the troop mobilisation in 2001 was a signal both to Pakistan and to the international community of India's determination ‘to take any step’ to counter terrorism.Footnote ¹¹² He said: ‘I genuinely believe if the possession of WMD, absence of democracy and export of terrorism are the criteria, then no country deserves more than Pakistan to be tackled […]’.Footnote ¹¹³ He proposed that Pakistan be included in the ‘axis of evil’.Footnote ¹¹⁴ He declared that India had a better case for initiating pre-emptive action against Pakistan, than the US had against Iraq. The US was forced to explain, somewhat unconvincingly, that the cases could not be equated.Footnote ¹¹⁵

A good citizen of the international community

India is also able to draw on its image as a full and conscientious member of the international community. India has been an enthusiastic participant in international organisations. It has built up a reputation as a leader of the Third World and the Non-aligned Movement. It is the third-largest contributor to UN peacekeeping operations.

Since independence India has played a prominent role in international politics, a role quite out of proportion to its military or economic strength. Recognising that norm-oriented diplomacy could strengthen its position, India negotiated significant successes on issues such as decolonisation, foreign aid, and international trade. India is signatory to nearly all the major conventions in international law. India has a surprising ability to be a norm-maker and not merely a norm-taker, and is now using its resources to shape the counter-terrorism regime.