Anti-terrorism legislation

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Anti-terrorism legislation are laws with the purpose of fighting terrorism. They usually, if not always, follow specific bombings or assassinations. Anti-terrorism legislation usually includes specific amendments allowing the state to bypass its own legislation when fighting terrorism-related crimes, under alleged grounds of necessity.

Because of this suspension of regular procedure, such legislation is sometimes criticized as a form of lois scélérates which may unjustly repress all kinds of popular protests. Critics often allege that anti-terrorism legislation endangers democracy by creating a state of exception that allows authoritarian style of government.

International conventions related to terrorism and counter-terrorism cases

Terrorism has been on the international agenda since 1934, when the League of Nations, predecessor of the United Nations, began the elaboration of a convention for the prevention and punishment of terrorism.[1] Although the convention was eventually adopted in 1937, it never came into force.

Today, there are 15 counter-terrorism international conventions in force. They were developed under the auspices of the United Nations and its specialized agencies and the International Atomic Energy Agency (IAEA). Moreover, on 8 September 2006, the UN General Assembly adopted a "Global Counter-Terrorism Strategy".[2]

Conventions open to all states

A 16th international convention, a proposed Comprehensive Convention on International Terrorism, is currently under negotiations.

Security Council Resolutions

Regional conventions

Europe

Commonwealth of Independent States

  • Treaty on Cooperation among States Members of the Commonwealth of Independent States in Combating Terrorism (Minsk, June 1999)

The Americas

Africa

  • Organisation of African Union Convention on the Prevention and Combating of Terrorism (Algiers July 1999) and the Protocol to that Convention, Addis Ababa July 2004) [as of 30 August 2005 the Protocol was not yet in force]

Asia

  • SAARC Regional Convention on Suppression of Terrorism (Kathmandu, November 1987)
  • Additional Protocol to the convention, Islamabad, January 2004 [As of 30 August 2005 not yet in force].
  • The ASEAN Convention On Counter Terrorism, Cebu, Philippines, 13 January 2007 [In force from 27 May 2011, on 22 January 2013 all ASEAN members signed the ACCT]

South Korea

  • Act on prohibition against the financing of terrorism (February 29, 2008)

→(rev)Act on prohibition against the financing of terrorism and proliferation of weapons of mass destruction (March 29, 2016)

  • Act on anti-terrorism for the protection of citizens and public security[6] (March 3, 2016)

League of Arab States

  • Arab Convention on the Suppression of Terrorism (Cairo, April 1998)

Organization of the Islamic Conference

  • Convention of the Organization of the Islamic Conference on Combating International Terrorism (Ouagadougou, July 1999)

Anti-terrorist legislation in the European Union

European Union

  • EU Framework Decision on Terrorism
  • EU Directive 2017/541 on combating terrorism

European Court of Human Rights cases related to anti-terrorist legislation

  • Anna Maroufidou v. Sweden - 1981
  • Brogan and others v. the UK - 11209/84;11234/84;11266/84;... [1988] ECHR 24 (29 November 1988)

Belgium

  • Belgium Anti-Terrorism Act 2003

France

France has passed a variety of anti-terrorist laws, the first of which being the 19th-century lois scélérates restricting freedom of expression. Today, magistrates in the Justice Ministry anti-terrorism unit have authority to detain people suspected of "conspiracy in relation to terrorism" while evidence is gathered against them.[7]

Ireland

Italy

Italy passed various anti-terrorist laws during the "Years of Lead" (anni di piombo) in the 1970s.

The Reale Act was adopted on 22 May 1975. It allowed the police to carry out searches and arrest persons without being mandated by an investigative judge. Interrogation could take place without the presence of a lawyer. Critics underlined that this contradicted article 3 of the Constitution on equality before the law.[9]

Preventive detention was fixed before 1970 to two years, for a possible sentence going between 20 years to perpetuity, while it was limited to one year for charges of crimes leading to a sentence of less than 20 years. It passed to four years after 1970. A decree-law of 11 April 1974 authorized a four-year detention until the first judgment, six years until the appeal, and eight years until the definitive judgment. In case of indictment for "acts of terrorism," the preventive detention was extended to twelve years.[9]

The Cossiga decree-law was passed on 15 December 1979. It prolonged the length of preventive detention relative to terrorism suspicions and allowed wiretaps. Critics have pointed out that this violated articles 15 and 27 of the Constitution.[9] The Cossiga decree-law also created the status of pentito (officially "collaborators of justice"): those accused of terrorism crimes and who accepted of confessing them and of informing the authorities about their accomplices could be liberated.

Law n°191 of May 21, 1978, called "Moro law", and law n°15 of February 6, 1980, were ratifications by the assembly of decrees of emergency enacted by the executive power, respectively on March 28, 1978, and on December 15, 1979.[10]

United Kingdom

UK anti-terrorism legislation is subject to regular review by the Independent Reviewer of Terrorism Legislation.

Anti-terrorism legislation in common law countries (other than the UK)

Australia

The Civil Rights Network opposes such legislation. Elizabeth Evatt, a federal judge, has criticized John Howard's 2005 anti-terrorism bill, particularly provisions relating to control orders and preventive detention, saying that "These laws are striking at the most fundamental freedoms in our democracy in a most draconian way."[12]

Bangladesh

Canada

India

New Zealand

Pakistan

  • Suppression of Terrorist Activities Ordinance, 1975 enacted by Zulfikar Ali Bhutto.[17] The law remained in force in the Sindh Province and the Punjab Province until its repeal in 1997,[17] and remained the law in the North West Frontier Province (NWFP) and Baluchistan until August 2001.[17]
  • 1997 Anti-Terrorism Act, signed on August 17, 1997, by then Prime Minister Nawaz Sharif.[18][19] The law, which included a broad definition of "terrorism", was enacted after a January 1997 bombing by Mehram Ali, a member of the Shia militant organization Tehrik Nifaz Fiqh-i-Jafaria (TNFJ).[17] The Anti-Terrorism Act created specials Anti-Terrorism Courts (ATC) as well as an Anti-Terrorism Appellate (ATA) Tribunal.[17] Merham Ali was subsequently tried before those special courts, but made an appeal to the Supreme Court, which confirmed his death sentence, but declared most of the 1997 Anti-Terrorism Act unconstitutional.[17]
  • 24 October 1998 Anti-Terrorism (Amendment) Ordinance issued by Nawaz Sharif's government to respond to most of the Supreme Court's objections.[17] According to political scientist Charles H. Kennedy, "Special Anti-Terrorism courts remained in place but the judges of such courts were granted tenure of office (two years, later extended to two and one-half years); the special Appellate Tribunals were disbanded, appeals against the decisions of the Anti-Terrorism courts would henceforth be to the respective High Courts; and restrictions were placed on the earlier act's provisions regarding trial in absentia to accord with regular legal procedures."[17]
  • Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance, 1998.[17] Applying itself to the Sindh Province, the ordinance granted broad judicial powers to the military.[17] It also created the new crime of "civil commotion,"[17] which exposed to a penalty of 7 firm prison years. The ordinance defined "civil commotion" as

"creation of internal disturbances in violation of law or intended to violate law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicle snatching/lifting, damage to or destruction of State or private property, random firing to create panic, charging bhatha

[protection money/extortion], acts of criminal trespass, distributing, publishing or pasting of a handbill or making graffiti

or wall-chalking intended to create unrest or fear or create a threat to the security of law and order..."[17]

  • 30 January 1999: the Pakistan Armed Forces Ordinance of 1998 is extended to the whole country.[17] It was also amended to enable "absconders" from justice to be tried in absentia by any military court.[17] The opposition filed many constitutional petitions challenging the validity of the ordinance, resulting in Liaquat Hussain versus Federation of Pakistan issued on 22 February 1999. The Supreme Court declared the ordinance "unconstitutional, without legal authority, and with no legal effect.".[17] It rejected Nawaz Sharif's claim that the ordinance was temporary and limited to Sindh Province.[17]
  • 27 April 1999: repeal of the Armed Forces (Acting in Aid of Civil Power) ordinance. However, "civil commotion" is included as a crime under the Anti-Terrorism Act of 1997.[17]
  • 27 August 1999: amendment to the Anti-Terrorism Act, authorizing ATC (Anti Terrorism Court) in all of the country.[17]

Russia

In 2017 Ukraine opened a case against Russia for involvement and financing of military-occupied Autonomous Republic of Crimea and part of Donbas.[20]

South Africa

  • South African Terrorism Act No 83 of 1967
  • Anti-Terrorism Bill (Bill as approved by the Parliamentary Portfolio Committee for Safety & Security on 2003/11/13)[21][22]
  • Protection of Constitutional Democracy Against Terrorism & Related Activities Act, 2004 [23]

United States

Federal

Ohio

Anti-terrorism legislation in civil law countries (outside the European Union)

China

China passed Anti-terrorism Law on December 27, 2015.[24]

The Anti-terrorism Law has 10 chapters and 97 articles, taking effect on January 1, 2016. Before the promulgation of Anti-terrorism Law, though anti-terrorism laws can be found in the Criminal Law or some other emergency action regulations, there was not a systematic legal structure or source for anti-terrorism actions.

The most controversial provisions of the Anti-terrorism Law are the numerous new restrictions on the operation of internet and technology based companies, among which Article 21 says that an internet operator or provider is obligated to verify the identity of each user and shall refuse to provide services to a user who refuses such verification or fails to provide a clear identity. Any company who fails to meet such obligation may face fines, orders of rectification and its management and executives may face fines and even detentions from 5 to 15 days. In addition, Article 18 says any telecommunication operator or internet provider shall provide technology access and source code or other de-encryption support and assistance for the purposes of preventing and investigating terrorism by Public Safety Department or National Security Department.

Chile

Human Rights Watch has criticized the Chilean government for inappropriately using anti-terrorist legislation against Mapuche groups involved in land conflicts. While the legislation in question was originally enacted by the Pinochet dictatorship, the democratic governments that have followed have actually increased its severity.[citation needed] Human Rights Watch has expressed special concern that the current version of the law lists arson as a "terrorist" offence. This has allowed the application of the law against Mapuche vandals. While recognizing that crimes have certainly been committed, the international organization believes that they are not comparable to terrorist acts.[25] In 2018, Amnesty International urged Chile to stop utilizing the Anti-Terrorism Law [es] to prosecute Mapuche dissidents affirmed all people's right to a fair trial.[26]

El Salvador

El Salvador, presided by Antonio Saca of the right-wing ARENA party, had adopted in September 2006 an anti-terrorist law. All major parties, including the FMLN, have criticized the law, claiming it could be used against social movements[27]

The government first attempted to use the law against illegal street vendors who violently resisted removal by the police. These charges did not result in convictions.

In July 2007, the Salvadoran government charged fourteen people with acts of terrorism for their participation and/or association with a demonstration against privatization of the nation's water system. Charges were dismissed against one of those arrested. The remainder, known as the Suchitito 13, were released, but continued to face charges under the Special Law Against Terrorist Acts.[28][29] The charges were reduced to "disorderly conduct" in early February 2008 and then completely dropped later in the month.

Israel

Many years Israel has relied on mandatory regulations as a legal basis for fighting terrorism and for convicting terrorists both in civilian and military courts. In 2016, after a long and thorough work by the Minister of Justice Ayelet Shaked, the Knesset passed a comprehensive law against terrorism, forbidding any kind of terrorism and support of terrorism, and setting severe punishments for terrorists. The law also regulates legal efforts against terrorism.[30]

Peru

Peru adopted anti-terrorist laws in 1992, under Alberto Fujimori's presidency. The laws were criticized by Amnesty International, who declared in its 2002 report that "Detainees falsely charged with 'terrorism-related' offences in previous years remained held. 'Anti-terrorism' legislation which had resulted in unfair trials since its introduction in 1992 remained in force. Members of the security forces accused of human rights violations continued to have their cases transferred to military courts."[31] Lori Berenson, a US citizen serving a 20-year prison term in Peru, has been condemned in virtue of these laws, on charges of collaboration with the Túpac Amaru Revolutionary Movement.

Philippines

The Human Security Act of 2007, signed into law by President Gloria Macapagal Arroyo and effective since July 2007, officially aimed at tackling militants in the southern Philippines, including the Abu Sayyaf group, which has links to al-Qaeda and has been blamed for bombings and kidnappings in the region.[32]

Under the law, three days of warrantless detention are authorized,[32] although arresting officers are obliged to immediately inform a judge about the arrest.[32] Furthermore, detained terrorists are entitled to see a lawyer, a priest, a doctor, or family members.[32] The law allows eavesdropping on suspects[33] as well as access to bank accounts for authorities.[32] Convictions could result in 40-year prison sentences, but compensations are provided for in case of miscarriage of justice.[32][33] Terrorism was defined by Section 3 as "sowing and creating a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand",[33] a formulation criticized by Wilson Fortaleza, national president and third nominee of the labor party-list group Sanlakas, who claimed the law could be used to crush political dissent.[33]

Indonesia

Following the October 2002 Bali bombings, Indonesia adopted Government Regulation in Lieu of Law 1/2002. Under the Indonesian legal system, a Government Regulation in Lieu of Law has the same power as a parliament-enacted legislation, except that it can only be issued under emergency circumstances and is subject to review by the next parliamentary session. Nevertheless, Indonesian Parliament enacted this emergency regulation into Law 15/2003. As since, Indonesia has an anti-terror legislation with strong political support. The Anti-Terror Law cultivates many criticism, however. The Law contained provisions which can circumvent normal criminal proceeding such as quick and long detention. One of the main contentious provision of the Law is that it allows Intelligence Information to be used as a preliminary evidence that can be used for apprehending a suspect. The role of Intelligence Information as evidence has been a subject of hot debate in Indonesia.[34]

Turkey

Article 8 of the Anti-Terror Law (Law 3713; April 1991), slightly amended in 1995 and later repealed,[35] imposed three-year prison sentences for "separatist propaganda." Despite its name, the Anti-Terror Law punished many non-violent offences.[36] Pacifists have been imprisoned under Article 8. For example, publisher Fatih Tas was prosecuted in 2002 under Article 8 at Istanbul State Security Court for translating and publishing writings by Noam Chomsky, summarizing the history of the human rights of Kurdish people in Turkey; he was acquitted, however, in February 2002.[36]

State Security Courts were transformed into Heavy Penal Courts following June 2004 reforms to the 1982 Constitution, enacted following the 1980 military coup.

As of 2008, detainees arrested under the Anti-Terror Law have access to lawyers at the very beginning of their detention.[37]

Ukraine

In 2017 Ukraine opened a case against Russia for involvement and financing of military occupied Autonomous Republic of Crimea and part of Donbas.[20]

Anti Terrorist Act, 2009 passed in Bangladesh

This act is effective from 11 June 2008. Under section 28 of this Act, anti terrorist special Tribunal is trying the crimes.[citation needed]

See also

References

  1. ^ See Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation (Brill Publishers, 1997) pp. 191-203.
  2. ^ International instruments to counter terrorism, United Nations
  3. ^ "ETS no. 090 - European Convention on the Suppression of Terrorism". Council of Europe. 27 January 1977. Retrieved 29 August 2008.
  4. ^ "ETS No. 190 - Protocol amending the European Convention for the Suppression of Terrorism". Council of Europe. 27 January 1977. Retrieved 29 August 2008.
  5. ^ "Council of Europe Convention on the Prevention of Terrorism (CETS No. 196)". Council of Europe. 16 May 2005. Archived from the original on 7 August 2008. Retrieved 29 August 2008.
  6. ^ "국민보호와 공공안전을 위한 테러방지법". Retrieved 25 November 2019.
  7. ^ "Help From France Key In Covert Operations". The Washington Post. ISSN 0190-8286. Retrieved 19 January 2022.
  8. ^ a b "Safety & Security: Terrorism". The Department of Justice and Equality, Republic of Ireland. Retrieved 3 June 2014.
  9. ^ a b c Schimel, Anne (1 April 1998). "Justice « de plomb » en Italie". Le Monde diplomatique (in French). Retrieved 19 January 2022.
  10. ^ "Paroledonnee". 12 April 2021. Archived from the original on 8 October 2002. Retrieved 19 January 2022.{{cite web}}: CS1 maint: unfit URL (link)
  11. ^ Dominic Casciani (24 January 2008). "Terror bill: Key elements". BBC News. Retrieved 29 August 2008.
  12. ^ Michael Pelly, Tony Stephens and Marian Wilkinson (25 October 2005). "Former leaders call for debate". Sydney Morning Herald. Archived from the original on 11 September 2006. Retrieved 11 August 2006.
  13. ^ "Bangladesh Anti-Terrorism Act, 2009".
  14. ^ Radia, Andy (19 April 2013). "Harper government to fast track anti-terrorism bill". Canada Politics. Yahoo! Canada. Retrieved 22 April 2013.
  15. ^ Branch, Legislative Services (15 November 2019). "Consolidated federal laws of canada, Anti-terrorism Act, 2015". laws-lois.justice.gc.ca. Retrieved 17 March 2022.
  16. ^ Kalhan, Anil; et al. (2006). Colonial Continuities: Human Rights, Antiterrorism, and Security Laws in India. 20 Colum. J. Asian L. 93. SSRN 970503.
  17. ^ a b c d e f g h i j k l m n o p q r Kennedy, Charles H. (2004). "The Creation and Development of Pakistan's Anti-terrorism Regime, 1997–2002" (PDF). In Limaye, Satu P.; Wirsing, Robert G.; Malik, Mohan (eds.). Religious Radicalism and Security in South Asia (PDF). Honolulu, Hawaï, Spring: Asia Pacific Center for Security Studies. pp. 387–413.
  18. ^ "The Anti Terrorism Act (ATA), 1997". Pakistan's Federal Investigative Agency's website. Archived from the original on 14 February 2012. Retrieved 13 August 2019.
  19. ^ Ortega, Kellie (2002). "Anti-terrorist laws in Pakistan". Seminar Magazine. Retrieved 13 August 2019.
  20. ^ a b Oliphant, Roland (6 March 2017). "Ukraine sues Russia in International Court of Justice for 'financing terrorism' and discrimination". Telegraph. Telegraph Media Group Limited. Retrieved 13 August 2019.
  21. ^ "Part 4". static.pmg.org.za. Retrieved 18 January 2022.
  22. ^ Parliament of the Republic of South Africa. "Anti-Terrorism Bill" (PDF). Retrieved 18 January 2022.
  23. ^ South African Police Service. "PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT 33 OF 2004" (PDF).
  24. ^ Shaohui, Tian, ed. (27 December 2015). "Commentary: China's anti-terrorism legislation no excuse for U.S. agitation". Xinhuanet. Archived from the original on 6 June 2017. Retrieved 13 August 2019.
  25. ^ "Undue Process: Terrorism Trials, Military Courts and the Mapuche in Southern Chile" (PDF). Human Rights Watch. 16 (5): 63. October 2004. Retrieved 28 August 2008.
  26. ^ "Chile: Authorities must stop criminalizing Indigenous Mapuche people under the Anti-Terrorism Law". Amnesty International. 28 May 2018.
  27. ^ "Fighting Terrorism". Latin America Monitor. Business Monitor International Ltd. October 2006. Archived from the original on 22 February 2007. Retrieved 13 August 2019.
  28. ^ "El Salvador: Amnesty International Criticizes El Salvador for Using Anti-Terrorism Laws to Punish Social Protesters". Amnesty International USA. 18 July 2007. Archived from the original on 10 November 2008. Retrieved 29 August 2008.
  29. ^ "Democracia Azul: Access to Water as a Human Right in El Salvador". Center for International Policy. 18 January 2008. Retrieved 29 August 2008.
  30. ^ "Terror bill passes into law". The Jerusalem Post. The Jerusalem Post. 16 June 2016. Retrieved 16 June 2016.
  31. ^ Toledo, Alejandro (December 2002). "2002 Report on Peru". Amnesty International. Archived from the original on 17 March 2007. Retrieved 13 August 2019.
  32. ^ a b c d e f "Philippines approves terror bill". 20 February 2007. Retrieved 19 January 2022.
  33. ^ a b c d Romero, Paolo. 'No haven for terror in RP', ABS News, March 7, 2007
  34. ^ Movanet. "Rewriting the antiterror law". Retrieved 19 January 2022.
  35. ^ Parliamentary Assembly of the Council of Europe (22 June 2004). "Implementation of decisions of the European Court of Human Rights by Turkey". Council of Europe. No. Resolution No 1381. Retrieved 13 August 2019.
  36. ^ a b "Questions and Answers: Freedom of Expression and Language Rights in Turkey". Human Rights Watch. April 2002. Retrieved 13 August 2019.
  37. ^ "Retrograde Human Rights Trends and Stagnation of the Human Rights Reform Process". Retrieved 13 August 2019. 4th part of the Human Rights Watch July 2007 report titled "Turkey: Human Rights Concerns in the Lead up to July Parliamentary Elections.

Further reading

  • Eijkman, Q. Schuurman, B.Preventive Counter-Terrorism Measures and Non-Discrimination in the European Union: The Need for Systematic Evaluation (International Centre for Counter-Terrorism, 2011)

External links

  • Counter-terrorism Legislation and Practice: A Survey of Selected Countries, British Foreign Office, October 2005 - this report outlines current anti-terrorism legislation in ten democratic nations, including the United States, Canada, Australia and a portion of Europe.
  • Human Rights First: In Pursuit of Justice; Prosecuting Terrorism Cases in the Federal Courts (2009)
  • «Public order and safety» - International project on combating crime and terrorism
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