Introduction

The direct, immediate legislative and policy response of many governments to the September 11 terrorist attacks on the United States highlighted an increasing reliance by governments on surveillance technology. Many of these post-9/11 laws and policies have attracted controversy and public attention for their impact on privacy protections, particularly in the US, where civil liberties advocates have accused the US government of favouring security over liberty. Given the US government's continuing lead role in the fight against terrorism, its actions and the public reaction to them may provide useful lessons for other governments and lawmakers as they too seek to find an appropriate, justifiable and legitimate approach to deal with similar threats. In addition, because the US is popularly perceived by many non-Americans to be a fully-fledged democracy and a leading defender of civil liberties, the current view of many privacy advocates and watchdog groups – that post-9/11 the US government has adopted rules and mechanisms that threaten free speech and increase government secrecy – deserves closer attention. The picture that emerges from this chapter is a sobering one for governments seeking to model their policies after those of the US government. Even where a responsible and democratic government is taken to be acting in what it believes to be in the best national interest, it can nonetheless be perceived as unnecessarily secretive and possibly untrustworthy.

Introduction

Soon after the Bali Bombing occurred on 12 October 2002 killing 202 people, mostly foreigners and holidaymakers, the government was quick to legislate an Anti-Terrorism Law. On 18 October 2002 the President issued Government Regulation in Lieu of Law (hereinafter referred to as GRL) No. 1 of 2002 concerning the Eradication of Criminal Acts of Terrorism. On the same day the Government issued GRL No. 2 of 2002 making GRL No. 1 retroactively applicable to the Bali bombings. In 2003, both GRL 1 and 2 of 2002 were confirmed by the legislature and have become law (GRL 1 is referred to as the ‘Anti-Terrorism Law’).

This chapter will describe Indonesia's Anti-Terrorism Law and the difficulties and public controversy the government has faced in trying to implement it. The chapter will show how the judiciary has attempted to curb some of the Law's perceived excesses and it will review recent legal developments. It will be argued that, for Indonesia, terrorism is a complex and multi-faceted issue that cannot be addressed simply by promulgating a new law.

The substance

The Anti-Terrorism Law provides four reasons for its promulgation. First, terrorism had ‘claimed human lives intolerably and raised widespread fear among the community [and] caused loss of freedom and damage of property’. Second, terrorism had maintained extensive networks, posing a threat to national and international peace and security. Third, national legislation was required to implement international conventions relating to terrorism.

Introduction

Few countries have seen the ugly face of terrorism to the extent that India has since its independence in 1947. The situation in Jammu and Kashmir, the North-East states, the naxalite movement in Andhra Pradesh and Orissa, developments in the states of Punjab and West Bengal, recent violence in Gujarat and bomb blasts in Bombay have constantly challenged constitutional values and institutions. India has suffered terrorists' attacks on civilian, military and other governmental institutions (including the attack on the Indian Parliament) and on individuals, resulting in death and destruction. There has been hostage taking, and damage to property. Two examples will suffice. In Jammu and Kashmir alone, during the third week of May 2004, there were 29 civilian, 34 security personnel and 19 terrorist deaths, making a total of 82 deaths in only one week. The North-Eastern states have the dubious distinction of being home to Asia's longest running insurgency. With about 30 banned insurgency groups, the states of Assam, Manipur, Tripura and Nagaland have witnessed 11,000 casualties. During the first nine months of 2003, more than 300 people fell victim to the insurgency in the state of Assam alone. Religious and ideological differences, and demands for autonomy have been the major reasons for terrorism in India.

These developments have compelled policy-makers in India to respond appropriately, both domestically and through regional initiatives such as the South Asian Association for Regional Cooperation (SAARC) Regional Convention on Suppression of Terrorism.

Many societies instinctively and quickly reach for the criminal law as a response to terrorism. The criminal law has frequently been expanded as a direct response to acts of terrorism. In the first part of this chapter, I will provide an overview of how new criminal laws have often been produced in response to terrorism and relate this to narrative, memorial, and communicative uses of the criminal law and increased concern about the rights of victims and potential victims of crime. New anti-terrorism laws, however, are not solely based on a symbolic focus on state punishment and denunciation. They also incorporate a more modern approach that sees crime as one of the many risks of modern society. The risk of crime can only be managed by enlisting non-state actors in the crime control enterprise.

In the second part of the chapter, I will examine some of the dangers of the criminal law solution to terrorism from both instrumental and normative dimensions. The enactment of new criminal laws after acts of terrorism implies that the existing criminal law was inadequate to respond to acts of terrorism. The accuracy of such a claim, however, depends on the baseline established by the ordinary criminal law in each particular jurisdiction.

Introduction

Dicey says that in an emergency situation public officials might find themselves compelled to act outside the law and Parliament might then indemnify them. But an Act of Indemnity does not make what the officials did legal – Parliament has ‘legalised illegality’. Rather, it places them in a zone uncontrolled by law – a legal black hole, to use the current term. His point is that political power can be exercised in a brute fashion, permitting those who wield it to break free of the constraints of constitutionality and legality.

It might, Dicey thinks, be at times justified to do this because without illegal action the state and thus law itself might have been overthrown. But it would be far better if Parliament were to delegate in advance the resources to public officials to deal with the emergency.

Introduction

Australia and New Zealand might seem unlikely targets for a terrorist attack. They are geographically isolated and are only minor players in the ‘War on Terror’. Nevertheless, Australia is an active military partner in the ‘Coalition of the Willing’ that went to war in Iraq in 2003 and both nations supplied troops for the conflict in Afghanistan. Australia has also come to the attention of terrorist organizations, with a recent statement purporting to be from al Qaeda declaring Australian Prime Minister John Howard to be ‘wicked’. Howard responded: ‘I've been insulted by everybody, so I suppose Al Qaeda can have a go as well.’

Although there has not been a terrorist attack for more than a decade on Australian or New Zealand soil, both have been affected by terrorism. Many New Zealanders regard the 1985 sinking in Auckland Harbour of the Rainbow Warrior by French agents, with loss of one life, as an example of state sponsored terrorism. More recently, Australians and New Zealanders died in the September 11 attack. A year later, on 12 October 2002, 202 people were killed when two bombs exploded in the Sari Club and Paddy's Bar in Bali, Indonesia. Of the dead, 88 were Australian and 3 were from New Zealand.

Introduction

Nearly every essay on the subject of terrorism makes an apologetic nod to the difficulties of defining the term. Despite frequent mentions of ‘state terrorism’ as a form of many types of terrorisms, relatively few works then go on to discuss state terror, and those that do treat it as independent of non-state terror, state-sponsored terror or counter-terrorist policy. This chapter in some sense is little different, in that it too addresses definitional considerations. It departs from other works, however, in important ways. It adopts a Weberian mode of definition: that is, the elements discussed that constitute what is meant by ‘counter-terrorism’ or ‘terrorism’ are included not because I claim to have reached any great truth or resolved a discussion that is centuries old, but rather because I am writing about liberal, democratic states’ response to what they perceive to be terrorist challenge. Thus, while I take Annamarie Oliverio's point well, that to have amassed a number of definitions and isolated common elements – as though truth were dependent on a majoritarian decision – distorts academic inquiry, I nevertheless find it helpful to describe the rules by which certain types of challenge become categorized. My contention is that once a challenge to a liberal, democratic state has been labelled as ‘terrorist’, certain responses follow. My purpose is to point out the associated risks.

Formulating an appropriate response to terrorism presents all governments with an acute political dilemma. On the one hand, by failing to act decisively a government runs the risk of providing terrorist groups with the opportunity to consolidate in order to launch further and even more devastating attacks. On the other hand, there is the opposite danger of over-reacting. After all, one of the key objectives of terrorism is to provoke states into adopting security policies that expose the commitment to constitutional rule as being shallow, hypocritical and contingent upon circumstances. By inviting a ‘terror against terror’, the terrorist hypothesis is that violent attacks can cause governments to derogate from key constitutional principles, and that such a suspension of norms exposes the limits of the rule of law and undermines the moral authority of the state. Striking an appropriate balance between the need for action and the danger of over-reaction has, post-9/11, become a pressing issue for all governments as they formulate counter-terrorism policy.

This chapter will examine some of the key issues raised by Japan's response to the 9/11 attacks and the global ‘war on terrorism’ that has followed. In responding to 9/11, many liberal democracies substantively expanded the coercive powers of the criminal law as well as the investigative powers of state agencies.

Treaty law and custom

Recent interest in the utility or propriety of a generic definition of terrorism has been driven by larger issues, such as the need to build international solidarity in the war against terrorism, and the opposing need felt by some of guarding any such possible definition of terrorism from any undue weightage likely to be given to the unilateral beliefs of any one state, and particularly the meaning likely to be or already given to that term in the foreign policy of any one state. Talk of the need to define terrorism comprehensively under international law cannot be divorced from such over-riding political concerns which, together with some old diplomatic obstacles, continue to plague the ongoing negotiations towards a Comprehensive Convention on Terrorism. The initiative for a comprehensive treaty definition of terrorism was a response to calls beginning in the 1990s for a departure from a regime of variegated subject-specific treaties which I shall discuss further below. The initiative had come originally from India, and negotiations are currently ongoing. United Nations General Assembly resolution 51/210 of 17 December 1996 had established an Ad Hoc Committee which, together with the United Nations' Sixth (Legal) Committee, is currently tasked with negotiations on the Draft Comprehensive Convention. I feel any success here would, however, be mainly symbolic. In this chapter I have chosen to take what I consider a more pragmatic approach than if I had chosen to focus on the status of the negotiations on the Draft Comprehensive Convention.

Introduction: policy options and loci of opposition

Three standard governmental policy responses to terrorism have been identified: a military one, treating the fight against terrorism as a form of warfare; a police-based one, treating it simply as a form of criminal activity, to be detected and then defeated using (perhaps some modified version of) the criminal justice system; and a political one, viewing it as a form of armed rebellion to be resolved through negotiation and the political process. The UK Government's response to political violence in Northern Ireland, for example, was to use a mixture of police-based and political strategies. In this light, the UK Government's response to the al Qaeda threat (leaving aside its military aspect, such as the war in Afghanistan) is police-based: it has involved a very significant ratcheting up of the state's coercive powers in terms of surveillance, data-sharing and detention. The main change in UK anti-terrorist policy in recent years has been described as being ‘the shift to intell-ige-nce-based and proactive methods [with] the primary aim of preventing terrorist attacks, rather than responding to events and attempting to solve crimes after they occur’. The use of preventive detention, rather than charging suspects with offences actually committed, is the logical conclusion of this approach: persons may be imprisoned, not because of what they have actually done, but for fear of what they might do, based upon suspicion of their involvement with al Qaeda generally.

Introduction

The terrorist attacks in the United States on 9/11 shocked not only the United States, but the entire international community. The attacks were unequivocally condemned by the United Nations Security Council and by most members of the international community. They triggered an almost immediate response led by the United States at the international level for additional measures and increased cooperation to prevent and suppress terrorist activities.

As a result of 9/11, states and international organizations were forced to completely rethink the threat of maritime terrorism. They recognized that if terrorists groups could strike powerful states using commercial aircraft, they could also strike using commercial shipping. The threat of maritime terrorism suddenly included the following: oil tankers being hijacked and used as weapons against other ships or port facilities; terrorists entering countries posing as seafarers, and weapons of mass destruction being shipped on merchant ships to terrorist organizations.

The United States recognized that the threat of maritime terrorism could not be dealt with unilaterally. International shipping is by its very nature, international, and can only be regulated through international cooperation. Since 9/11 the United States has led a two-pronged approach to obtain international cooperation to deal with the threat of maritime terrorism. First, it has worked vigorously and patiently to encourage the relevant United Nations bodies such as the UN Security Council, the International Maritime Organization (IMO) and the International Labour Organization (ILO) to take action that requires member states to impose new measures to deal with the threat of maritime terrorism.

Terrorism has become a franchise. Its manufacturers had astutely recognized early on that the southern part of the Philippines is an ideal market. The Philippines is not a very large country but it has played a significant role in the spread of terrorism even beyond the boundaries of Asia. The country's location, history and geopolitics offered an ideal breeding ground for terrorism to spread. The same factors that made it attractive to terrorists, however, offer significant potentials that could be tapped by the Philippine authorities to make the country play an equally significant role in the fight against terrorism. To make this happen, it is important that the government of the Philippines acknowledges the true extent of the problem within its boundaries, proclaims a commensurate policy and exhibits true political will.

While the rest of the countries in the region are busy apprehending and trying suspected terrorists, the Philippines achieved unprecedented embarrassment when one of the region's most wanted terrorists, Indonesian Fathur Roman Al Ghozi, escaped from the national headquarters of the Philippine National Police. Al Ghozi was suspected of masterminding the 30 December 2001 bombing of a commuter train that resulted in the death of more than fifty individuals.

Al Ghozi was subsequently killed following a massive manhunt but his escape highlighted the Philippines' weakness when it comes to dealing with terrorism: there is an official policy but it is lacking when it comes to implementation and sustainability.

The September 11 attacks profoundly affected the United States. Apart from the destruction of so many lives and the damage done to two of our most symbolically important buildings, the visual images of the attacks inflicted a level of trauma unknown to many Americans. The collective sense of fear and dread created by September 11, along with an understandable and palpable collective determination to rise up and ‘do something’ about terrorism, precipitated changes in laws and policies designed to counter the terrorist threat.

Acknowledging the risks of making judgments about the longer term from a perspective of three years from the event, the law and policy changes that are still being made by the United States may be part of what many inside and outside government now refer to as the ‘new normal’. In short, a longer term permanent realignment of the relative importance of security among our government's objectives may be taking place, perhaps at the expense of a thoughtful examination of terrorism and its antidotes.

Introduction

A significant part of the life of the law has been attempts to balance the competing values of stability and flexibility. In some areas greater weight may be accorded to flexibility while in others stability is particularly valued. In some areas the balance between stability and flexibility will be stable, in others it will require frequent re-calibration.

The rule of law has long been identified as one of the most fundamental tenets of a democratic regime, as ‘the soul of the modern state’. The terms ‘rule of law’, ‘constitutionalism’, ‘individual rights’, ‘democracy’ and ‘liberalism’ are frequently mentioned as integral parts of a unified whole. Despite lack of consensus as to its precise content and scope, the rule of law has been connected to notions of generality, clarity, certainty, predictability and stability of rules. At the same time, general legal rules must also be flexible enough to adapt to unforeseen circumstances and developments. When such developments take place over time there may be a sufficient lag to allow for changing the rules so as to accommodate the new realities. Constitutional amendment provisions offer one example. A power to amend may be necessary to allow adaptations to sustained pressures for change.