Asia - Antiterrorism and human rights: 10 years of non-compatibility?

Press release
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The events that followed September 11th 2001, including a set of legal reforms in many Western countries and a new surge of terrorist activism worldwide, marked a turning point in the way many countries in Asia handled groups and individuals labeled as terrorists by national authorities and/or the international community.

In the immediate aftermath of the 9/11 attacks, the United States were able to mobilize a NATO-led coalition with the aim of putting down the Taleban regime, accused of harboring Al Qaeda on Afghan soil. By invading Afghanistan on October 7th 2001, the United States launched what the Bush administration would term the “War on Terror”, which has contributed to, if not encouraged, large-scale counter-terrorism activities in many Asian countries throughout the following decade (2001-2011).

Estimates of civilian casualties of the war in Afghanistan go up to tens of thousands, many of which were killed as a direct result of military operations by international troops. This climate fueled and keeps fueling further hatred, inciting more Afghans to join the Taleban movement and/or perpetrate terrorist acts such as suicide bombings. While the death of military personnel is widely covered in Western media, the civilian casualties in the fight against terrorism, as well as other practices such as torture and illegal and secret detention on Afghan soil, are rarely if at all adequately discussed.

Pakistan has been at the core of the War on Terror, due to the extensive collaboration between Pakistani authorities and the United States to chase down Al Qaeda and the Taleban on Pakistani soil. However, Pakistan has had to face other in-country insurgencies, especially in Baluchistan, and also has to deal with its own Jihadi groups. As a result, the implications of the War on Terror on the country’s counter-terrorism policies have been far-reaching and not limited to their cross-border dimension with Afghanistan. This had lead to numerous human rights violations ranging from arbitrary detention to the practice of torture and extra-judicial killings.

The Philippines and Indonesia have also had to face their own internal conflicts, including a confrontation with radical extremist groups and terrorism, and have consequently also been on the front-line of the War on Terror. In both countries, counter-terrorism legislations have been enacted to expand powers of arrest and detention by national authorities. The absence of accountability has led to greater levels of impunity in the name of national security and the confusion between the fight against terrorism and other forms of repression. From 2005 onwards, similar policies were adopted in Bangladesh and have since then been the source of a strong opposition by human rights groups.

In India, counter-terrorism legislation has also been strengthened to respond to the regional impact of terrorism, but authorities took this opportunity of the post-9/11 context to increase their repression of other groups, including the Maoist guerrilla and ethnic minorities.

The War on Terror also had strong repercussions on the evolution of the decade-long civil war in Sri Lanka. The government took, from 2005 onwards, a U-turn in its strategy to fight the LTTE. The Tamil separatist group was then labeled as a terrorist organization to shore up the justification for aggressive and brutal military attacks that targeted local populations indiscriminately, leading to the killing of tens of thousands of innocent civilians over the first half of 2009.

Last but not least, China has also used the context of the global fight against terrorism to strengthen the persecution of religious, ethnic and cultural minorities, particularly in the Tibet Autonomous Region and the Xinjiang Uyghur Autonomous Region (XUAR). It created the Shanghai Cooperation Organization (SCO) in 2001 to increase regional cooperation in the fight against terrorism.

The Association of Southeast Asian Nations (ASEAN) and the South Asian Association for Regional Cooperation (SAARC) have also enacted their own regional convention on counter-terrorism.

Special 9/11_Antiterrorism and human... par fidhdailymotion

For more information:

Pakistan : Une longue marche pour la démocratie et l’Etat de droit (2009) (in French)

Pakistan: a long March for Democracy and the Rule of Law (2009) (in English)

Bangladesh : Criminal justice through the prism of capital punishment and the fight against terrorism (2009) (in English)

Philippines : Fighting terror or terrorizing? (2008) (in English)

Pakistan, which had systematically been pointed at for providing support to the Taleban and other fundamentalist groups, was forced to ally with the United States and develop stronger counter-terrorism policies. In the three years after the 9/11 attacks, Pakistan received $4.2 billion of military aid from the United States, making it the country with the maximum funding post-9/11. General Pervez Musharraf tried to take a new turn and explained his new policies to the world and to the Pakistani people in a speech over Pakistan television on January 12, 2002. In it, he set forth the goal of turning Pakistan into a moderate Muslim state, in which there was to be no internal extremism and no safe haven for terrorists operating across Pakistan’s borders. From then onwards, many Jihadi groups, such as Lashkar-e-Taiba, were banned and their leaders detained. In 2003, Pakistani security officials working with the CIA arrested Khalid Sheikh Mohammed, the alleged planner of the 9/11 attacks, which was then perceived as a strong sign of the government’s will to collaborate in the fight against terrorism. Since 2004, Pakistan has also led several attacks in the Federally Administrated Tribal Areas (FATA) to chase down Al Qaeda and other Taleban-affiliated groups.

However, the strengthening of the same groups today and the recent capture and killing of Osama Bin Laden in May 2011 during a US-led operation with no Pakistani involvement, are clear signs that Pakistan’s intention and capacity in the fight against terrorism remain obscure. Not only has it been said that Pakistan has maintained a form of hidden support to the Taleban, but many also argue that the military aid Pakistan received from the United States was diverted to contain domestic problems such as the insurgency in Baluchistan, where hundreds of forced disappearances have been registered over recent years.

Anti-terrorism legislation in Pakistan was strengthened from 1997 onwards with the creation of Anti-Terrorism Courts (ATCs) following the enactment of the Anti-Terrorism Act that aimed at putting an end to communal and sectarian violence across the country. With the advent of the 9/11 attacks, amendments to the act multiplied and the number of people detained without charge and even tortured, further increased. The purpose of these amendments was usually to enlarge the range of crimes covered by the Act. In addition to terrorist activities, the Act today covers arms trafficking, kidnapping, hijacking, extortion, sectarian violence, targeted political killings, and, until 2010, gang rape. A 2009 amendment, which permits “extrajudicial” confession to be used as evidence, has been seen by some as an invitation for investigators to torture suspects. The ACTs are overburdened and the appeal of dozens of accused claiming their innocence – some of whom having received a death-sentence - remains pending.
Finally, it has to be noted that in the FATA as well as in Swat located in the province of Khyber Pakhtunkhwa, numerous extra-judicial killings of Taleban fighters by the Pakistani military are suspected to have happened since 2009.

Pakistan’s military operations against the Taliban and Al-Qaeda have had a severe blowback effect. The militants have responded with frequent acts of terrorism, blowing up security personnel and establishments, as well as shrines, mosques and schools. The Taliban movement has been localised in Pakistan with the creation of Tehrik-e-Taliban Pakistan (TTP). Anti-terror legislation has failed to check their activities. In fact, in most cases of terrorism the accused are set free by the courts due to what the judges claim as lack of evidence. However, the fear factor prevents people from giving evidence and perhaps judges from giving a judgment freely.

In the Philippines, tensions between armed groups and the government have lasted for decades; however the international context in the aftermath of 9/11 has encouraged the latter to take additional measures to fight against terrorism. The Philippines joined the War on Terror as early as January 2002 when the United States Special Operations Command, Pacific, deployed to the Philippines to advise and assist the Armed Forces of the Philippines (AFP) in combating Filipino Islamist groups, including Abu Sayyaf and Jemaah Islamiyah. Estimates vary from 100 to 800 or more extrajudicial killings since 2001. The so-called “Human Security Act” (HSA) came into force on July 2007. In it, the definition of crimes such as terrorism and conspiracy to commit terrorism is overly broad and has allowed for a culture of impunity to develop, in particular concerning the practice of torture by both the AFP and the Philippine National Police (PNP). The HSA further expands powers of arrest and detention and allows for broad powers of surveillance and investigation. It also establishes an Anti-Terrorism Council, composed of high-level government officials, which blurs the line between the Judiciary and the Executive.
Extra-judicial killings and enforced disappearances continue to be recorded after the new Aquino administration came into power in June 2010. At least 28 extra-judicial killings and 4 enforced disappearances were recorded from July to December 2010. There were also numerous assaults against human rights defenders.

Indonesia is also facing its own internal struggle with terrorism even prior to 9/11. However, the new international context and the bloody Bali bombings which killed 202 people including 88 Australians on October 12, 2002, contributed to the re-assertion of the power of the military. Retroactive laws were introduced after the bombing to aid the prosecution of those involved in the attack. These laws, contrary to existing criminal laws, allowed the death penalty to be imposed and lowered certain evidential thresholds. Three men convicted of carrying out the bombings were executed by firing squad in November 2008, while the legal status of others remains unclear.

The Indonesian Parliament enacted an emergency regulation to counter terrorism into law in 2003. The law contains provisions which can circumvent normal criminal proceeding and extend detention and investigation powers, inconsistent with international due process standards. One of the main contentious provisions of the law is that it allows Intelligence Information to be used as a preliminary evidence for apprehending a suspect. Also, terrorism is defined in broad terms, which effectively allow for the criminalisation of all forms of peaceful protest.

In the general context of international terrorism, Indonesian authorities reasserted themselves in the name of national security and the need to fight terrorism and separatism. In West Papua in particular, where a wide range of human rights abuses are perpetrated by the military, impunity remains prevalent and access to outside observers, including journalists or international human rights organizations, is strictly restricted.

In Bangladesh, authorities have resorted to excessive emergency powers in the fight against terrorism. The Report of the Bangladeshi Government to the UN Security Council of July 2005 stated that the criminal laws existing before the adoption of the Anti-Terrorism Act (ATA) could already deal with the “terrorist acts”. This viewpoint was quickly reversed, however, after the bombing campaign allegedly carried out by the Jamaat al Mujahideen Bangladesh (JMB) in August 2005. In the same year, then Law Minister Moudud Ahmed expressed the need for a new and comprehensive anti-terrorism law arguing that “the existing laws are not enough to deal with this type of violence”. The ATA therefore appears to be nothing more than a political tool to prove to the Bangladeshi public and foreign partners that Bangladesh is “tough on crime” and takes a strong anti-terrorist position. Although existing laws are sufficient to deal with the JMB bombing cases, the ATA has become the centerpiece in the counter-terrorism toolbox of the government and a potential instrument of repression and injustice.

The Anti-Terrorism Ordinance was eventually promulgated in June 2008 by the Care-Taker Government, an unelected military-backed interim government put into place following the canceled elections and controversial anti-corruption drive of 2007. Based on the Ordinance, the Parliament enacted the Anti-Terrorism Act 87 (also known as ATA) on 24 February 2009. Human rights defenders publicly criticized the Ordinance and the ATA, describing it as “black law” and a legislation that would facilitate torture and other violations of human rights. For instance, the ATA uses vague expressions such as “creating fear amongst the public or a segment of the public” and “solidarity of Bangladesh,” the use of which are not compatible with Article 15 of the ICCPR, which requires that both criminal liability and punishment being limited to “clear and precise provisions in the law that was in place and applicable at the time the act or omission took place”.

India also adapted its anti-terrorism legislation in the aftermath of 9/11 and a series of bomb attacks targeting Indian major cities in the following years. The first major attack occurred in Mumbay on August 25th 2003 when twin car bombings killed 54 people, injuring 244. Three convicts were condemned to death in August 2009. However, anti-terrorism legislation was strengthened as early as 2002 when the Parliament of India enacted the Prevention of Terrorist Activities Act (POTA), which replaced the Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1985. Under the POTA, a suspect could be detained up to 180 days without the filing of charges in court. It also allowed law enforcement agencies to withhold the identities of witnesses and treat a confession made to the police as an admission of guilt. Such legislation became controversial as it became evident that it was a source of corruption within the Indian police and judicial system. It was eventually repealed in 2004; however, over the same year, most of its provisions were incorporated into an Amending Act of the Unlawful Activities (Prevention) Act (UAPA) of 1967. The UAPA empowers the Parliament to restrict fundamental freedoms in the interests of the sovereignty and the integrity of India.

Following the Bombay attacks of November 26, 2008, the Indian Parliament further strengthened the UAPA. The act was invoked in the arrest of several human rights defenders accused for their alleged links with the naxalite/Maoist guerrilla. It has also been used against ethnic minority activists in the Northeast, such as in Manipur. One of the most prominent defenders is Dr. Binayak Sen, who was arrested in May 2007 by the Chhattisgarh government. His arrest raised a lot of criticism against the UAPA and 22 Nobel Prize winners wrote to the Indian Government demanding the release of Dr. Sen and arguing that "he [was] charged under two internal security laws that do not comport with international human rights standards”.

Following the Mumbai bombings of July 13th 2011, one of the men detained for questioning – Faiz Usmani – died while in custody. His death sparked allegations of police brutality. It was alleged by his family members that Faiz Usmani was healthy when the police picked him up and that he was subjected to torture in police custody. The Crime Investigation Department (CID) is currently probing the conditions of his death.

In Sri Lanka, there are strong signs that the global fight against terrorism served to legitimatize the Sri Lankan government’s aggressive and brutal military offense to wipe out the Liberation Tigers of Tamil Eelam (LTTE) in 2009. The decade-long civil war opposing the LTTE to the government ended in May 2009 in a bloodbath, with up to 40,000 civilian killed in the final stages of the war. The Sri Lankan government then described the country as the first in the modern world to eradicate terrorism on its own soil.

Prior to that, a Ceasefire Agreement had been signed in March 2002, leading the government of Sri Lanka to stop terming the LTTE as a terrorist organization. However, violence erupted again in 2005, resulting in the abrogation of the ceasefire in 2006 and the decision by the newly-established government that the solution to the conflict would be military. Over the same year, the European Union and the government of Canada added the LTTE to their list of terrorist organizations, while the United Stated had already named the LTTE as a Specially Designated Global Terrorist (SDGT) in the immediate aftermath of 9/11 on November 2nd 2001. In such a context, the Sri Lankan government faced no opposition by the international community in its fight against the LTTE, and eventually re-termed it a terrorist organization on January 7th 2009, just before launching the last phase of its military attacks. In other words, the Sri Lankan government extensively used the so-called "War on Terror" as a cover up, by insisting on the need to defend democracy, while civilians were getting caught up in the war and killed on a daily basis. At the UN in 2005, following the adoption of Resolution 1624 on terrorism, the Sri Lankan minister declared: "There can be no questions that terror in all its manifestation must be fought relentlessly and globally. Gone are the days when a country affected by terror as my country has been for decades, can be told by the international community: we are sorry about what’s happening in your land but there is nothing we can do to help because we have no laws to combat terror".

Last but not least, China also became one of the leading country in the so-called fight against terrorism. In June 2001, the Shanghai Five was turned into the Shanghai Cooperation Organization (SCO), including Russia and Central Asian Republics. The main objective of this regional organization was to increase cooperation in the field of counter-terrorism. The operation framework immediately became problematic because it was based in the “Three Evils” doctrine of the Chinese government, each ’evil’ – terrorism, separatism, extremism -, being considered of equal weight and criminality. Ten years after its creation, the SCO has permitted the perpetration of many human rights violations, in particular the forced repatriation of alleged militants. The Chinese government also took advantage of the general context of the War on Terror to justify the continued persecution of religious, ethnic and cultural minorities, and the characterization of the exercise of legitimate rights as separatism or extremism, particularly in the Tibet Autonomous Region and the Xinjiang Uyghur Autonomous Region (XUAR).

At a regional level, South-East Asian countries have signed the ASEAN1 Convention on Counter-Terrorism (ACCT) in 2007, with the aim of «enhancing the region’s capacity to confront terrorism in all its forms and manifestations and to deepen counter-terrorism cooperation among the region’s law enforcement and other relevant authorities ». At the end of May 2011, the ACCT has entered into force following the deposit of the 6th instrument of ratification by Brunei. Singapore, Thailand, the Philippines, Cambodia and Viet Nam have already ratified the Convention. The Convention’s preamble includes a reaffirmation of the Member States’ commitment to “protect human rights, fair treatment, the rule of law, and due process”.

In South Asia, the SAARC Regional Convention on Suppression of Terrorism was signed in 1987 and came into force the next year following its ratification by all Member States. Several commitments have since reiterated the political commitment to counter terrorism at the regional level. A Terrorist Offenses Monitoring Desk (STOMD) was established in 1995 in Colombo to support the implementation of the convention by ‘collecting, assessing and disseminating information on terrorist offenses, tactics, strategies and methods’. An Additional Protocol to the Convention was signed in 2004 and came into force on 12 January 2006. Finally, a Convention on Mutual Legal Assistance in Criminal Matters was signed in August 2008. However, an analysis of the present situation in South Asia, more than two decades after the signing of the Convention, reveals that little has been achieved.

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