Counterterrorism and the Rule of Law

August 1, 2019        Reading Time: 7 minutes

Reading Time: 7 min read

Radhika Coomaraswamy*

Whenever the topic of counterterrorism is raised my mind goes back to the 2012 film The Gatekeepers, directed by Israeli filmmaker Dror Moheh. The documentary was shortlisted for an academic award. The film interviews six former heads of Shin Bet right up to 2012 just before the film was made. Shin Bet is Israel’s secretive internal security service that is answerable only to the Prime Minister. For most of us living in the third world, Israeli security services and the government are portrayed as a monolith making purposive decisions harmful to the Palestinian people. That is why this is an extraordinary film. It is about counterterrorism in practice, its problems of humanity, it’s dilemmas of fast pace decision-making, the diversity of opinions within and most of all the ethics of operating beyond the rule of law.

There are many works of art that challenge the way one thinks and this is one of them. From my background, one listens mortified as the six heads of this deadly of all institutions talk about “targeted assassinations,” forms of torture, the ticking bomb, having to make decisions as to whether to bomb a whole apartment complex because the Hamas leadership is meeting there – but the main take away is something completely different.

All these six leaders were strongly critical of where Israel is today. They felt that Israel was strong on tactics but weak in strategy, and most importantly, strong in counterterrorism but lost in the politics and the possibility of working out a long-term solution to the Palestinian problem in the near future. To them, counterterrorism must be seen as only a tactic, until the politics and social and economic policies to solve a problem kick in. Counterterrorism as a security operation cannot operate alone. It is only a political solution, backed by economic and social measures which is the final resolution. As one of them said, “Israel must learn to live with its Palestinian population.” Political decision-making must come first.

With The Gatekeepers as a backdrop I would like to say a few words about counterterrorism and the rule of law. Since the time of the Greeks, democracies, and even monarchies have dealt with violent crisis through what is known as “the state of exception.” This is when the juridical or legal order, especially the aspect that gives rights to citizens, is suspended till the crisis is resolved. This basic state of exception is expected to be for a limited period of time.

In early democracies, states of exception meant the suspension of the rule of law completely and the Sovereign been given full powers to meet the emergency. Today, under modern international law, there are non-derogable rights and certain processes and procedures have to be followed to protect the citizenry. Habeas Corpus, for example, is not dispensed within most democracies, except the time period for producing the person in court may be extended. After the crisis has lifted the juridical order is completely restored. But as we know emergencies have a tendency of never going away.

In the past, fighting terrorism was seen as primarily a police operation within the framework of the Criminal Code and the criminal justice system. 2001 was a turning point where the clause “War on Terror” overtook the discourse. Since then fighting terrorism has been seen as a combined police and military operation. In France, the ‘State of Exception’ has existed for two years and the declaration of emergency has allowed soldiers to be on the streets of Paris for a long period leading to a great deal of criticism and scrutiny.

In recent times, the thinking displayed by some of the Shin Beth leaders which can be summarised as “we suspend the rule of law, use overwhelming force if necessary, then return to normal and let the politicians make the decisions” is being replaced by a demand for permanent legislation on counterterrorism. The argument is “we will never be free of acts of terror so let us find a permanent process for all acts of terror from wherever they may emanate,” that is, general legislation not tailored to any particular series of events. Some human rights activists support this measure because it allows them a framework to insist on certain non-derogable rights being protected even in times of the greatest emergency. It also sets objective criteria for decision making in certain instances.

This brings us really to the main ideas that European thinkers like Giogio Agamben have been raising today on these states of exception or counterterrorism laws. The question he says that should concern all of us is “Who decides when someone is a terrorist and who is decided upon?” I was at a workshop in Wilton Park when I was Special Representative of the Secretary-General for Children and Armed Conflict when a young man from a western military, stated that the civilian combatant principle that asserts that only combatants are legitimate targets in warfare is out of date.

Terrorists also make it a point to target civilians. That is their modus operandi. Yet the combatant civilian distinction is the absolute basis of the rule of law in times of conflict. He argued that if a group of terrorists shoot from an apartment building using the complex as a human shield, then there is no problem in bombing the building down. I asked him if some group of terrorists were shooting from the upper floors of the Empire State Building would you bomb it down? I think not; he would advise the use of minimalist force. The question of who decides is crucial. It will determine the nature, extent and proportionate use of force even in an emergency. Excessive force is used against people you do not identify with, minimalist force against those with whom you do. The need for objective criteria then becomes even more important.

Let us take our proposed Counter-Terrorism Act (CTA), any police officer, any officer or member of the armed forces or a coast guard officer can arrest without a warrant just on a complaint. The objective test of reasonable suspicion is gone. The terrible acts of April 21st numbed us for a long time, but last week’s Sunday Observer shows us what this can mean. “Justifications for such arrests include frivolous reasons such as the possession of a certificate in Arabic, having Arabic songs in the laptop, travelling to Jaffna for a job, and having chlorine that desalinates water in your possession.” Many who possessed swords and freely declared them were also arrested. Practically all of them are languishing in jail. So, we must ask the second question, “Who are the decided upon?” If you are a member of a threatened minority with little access to power, the arbitrariness of a system of justice can be quite shocking. Again, the need for objective criteria and quick procedures to rectify errors of judgment becomes paramount.

Let me now turn to the issue of nation-building. I personally do not like the word nation-building. I come from a long-ago generation that felt that society should be built bottom-up. The former Governor of the Indian Reserve Bank, Mr. Raghuram Rajan in his pathbreaking book, The Third Pillar states that there are three pillars to sustainable nation-building, the state, the market and the community and that the failure of the third pillar, the community, in most of our societies, is the cause and the consequence of our present crisis.

Building communities then must be a major goal of nation-building. Traditional communities in Asia have often been closed and exclusive to its members and hostile to “the other.” The challenge then is to try and create new models of citizenship and community that create solidarity among the different ethnic, religious and class groupings that exist.

I am involved in a research project interviewing our youth and trying to assess the issues of the future. Even though countless small projects have begun since the end of the 30-year civil war, the vast majority of the youth interviewed had not been involved in any of these projects and were completely unaware of the concepts, ideas, debates and discourse that are usually associated with creating the trust necessary to live in harmony. Only the involvement of the state, political parties and community leaders in a sustained manner over a period of time can make change happen.

Instead, we see the space of “community” being with the forces of divisiveness and hatred. It is actually a frightening phenomenon that is happening across the world. This is particularly so in a post-conflict or post terrorist event scenario. This need not be the case. Examples from around the world show that the post-conflict moment, with effective leadership, can become a period of truth telling and healing. South Africa was the pioneer in this field but recent developments in Peru, Tunisia and now New Zealand show that there are innovative ways forward. In Northern Ireland, women took the lead. They created their own political party to mediate among the actors at the peace conference and then were intensively involved in post-conflict rebuilding. Unfortunately, in Sri Lanka, there is so much fear and misinformation around that there are active forces resisting reconciliation mechanisms.

One of the greatest challenges we face is social media. For some reason, hate and negative feeling are galvanized and spread like wildfire across social media. I am on the Fact-Finding Mission on Myanmar for the United Nations, and we have long and contentious discussions with Facebook.

Their business model and the business model of other platforms do not understand the social and cultural complexities, especially of Asia. The freedom of speech model they bring to bear instead of understanding the unethical mobilisation of hate in our societies actually aggravates the status quo. Myanmar and the Digana riots here are examples of how social media fed and incited violence. Facebook themselves have asked for regulation and they have set up an office for self-regulation in Singapore with Asian staff. We must work together to have a proper regulatory framework for the operation of social media so that the hate and divisiveness it fosters is curtailed without suppressing legitimate freedom of speech. Again, we have to focus on who decides so that valid dissent and diversity of opinion are not curtailed at the altar of security.

Finally, the array of issues around impunity, lawlessness and justice are also an important component of nation-building. Today we speak of transformative justice, where justice mechanisms and activity are relied upon in the context of building a healing process at the national level and in the community.

Our system of justice like many has its fair share of corruption and laws delays. But my proposition is that our system of justice generally works but there is system wide failure in three instances, when cases involve important politicians, errant members of the clergy or rogue elements of our security forces. Where they are concerned the system either shuts down or delivers peculiar results. Therein lies a tale of where power really lies in our society.

*Dr. Radhika Coomaraswamy, former Under-Secretary-General of the United Nations, Special Representative for Children and Armed Conflict, and Member of the Board of Management of LKI, spoke at an LKI panel discussion titled ‘From Counterterrorism to Recovery: Lessons from International Experience,’ held on 10 July 2019. Text as prepared; not checked against delivery. The opinions expressed in this lecture are the author’s own and not the institutional views of LKI, and do not necessarily reflect the position of any other institution or individual with which the author is affiliated. This was originally published in the Daily FT.

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