Anti-terrorism legislation

Anti-terrorism legislation designs all types of laws passed in the purported aim 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 the grounds of necessity. For example, the various UK terrorist acts during the Northern Ireland conflict have severely restricted the rights of the defense and of those accused of terrorist acts.

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. Governments often state that they are necessary temporary measures that will be dispelled when the danger finally vanish. However, most anti-terrorist legislation remains in activity even after the initial target of it has been eliminated. Measures which may be included by anti-terrorism legislation include preventive detention (that is, detention without trial), "control orders" in the UK and Australia, warrantless searches in the United States, etc.

The lois scélérates: anti-terrorism in the 19th century

Further information: Propaganda of the deed

At the end of the 19th century, Russia, Europe and the United States were confronted to a new radical movement which engaged in violent and illegal acts. This movement was first created in Tsarist Russia, where young intellectuals, staunchly positivist atheists, began to engage in a violent struggle against the Czar. Finding their influence in Nikolai Chernyshevsky's What Is To Be Done?, they began to advocate assassinations and bombings. One of the first group, Zemlya y Volya (Land and Liberty), formed of upper-class professional revolutionaries, started armed struggle against the Czar's regime. Sergey Nechayev (1847-1882) would become one of the most famous figures of what quickly became known as a "Nihilist" movement, whose fate was described by Albert Camus in The Just Assassins (1949) — Camus would later write a thoroughly thought-out essay on existentialism rebellion and the use of violence in history in The Rebel (1951), which denounced both quietism and terrorism. Russian nihilists eventually succeeded in assassinating Alexander III in 1881.

The "nihilist movement" then quickly spread to all of Europe, in particular via one of the founder of anarchism, Mikhail Bakunin, who fled to Switzerland, a haven for political refugees of the time. There, he joined the First International (IAW), which eventually theorized "propaganda of the deed." Starting in the 1880s, a wave of bombings and assassination attempts, organized by people close to the anarchist movement, literally began to terrorize the governing classes. Propaganda of the deed was not necessary violent action, but often took that form. Spinning on the right of rebellion, which had been theorized centuries ago by liberal thinker John Locke, such anarchists had no moral problems in theorizing regicides and tyrannicides, since it was "for the good of the people." Bakunin thus wrote that "we must spread our principles, not with words but with deeds, for this is the most popular, the most potent, and the most irresistible form of propaganda." As soon as 1887, several anarchists opposed themselves to what they saw as a self-defeating tactic, including Peter Kropotkin, who wrote that year in Le Révolté that "it is an illusion to believe that a few kilos of dynamite will be enough to win against the coalition of exploiters". Kropotkin's pragmatism eventually proved to be more realist than the most radical anarchist's idealism. Soon, all the labour movement was confronted to strong repression from the state, which did not manage to convince the people to start an insurrectionary and general strike, as had been expected by the theorists of propaganda of the deed. Furthermore, as depicted in Joseph Conrad's novel, agent provocateurs also infiltrated the movement, permitting many arrests in the social movement.

In France, after Auguste Vaillant's attempt, the "Opportunist Republicans" voted in 1893 the first anti-terrorist laws, which were quickly denounced as lois scélérates. These laws severely restricted freedom of expression. The first one condemned apology of any felony or crime as a felony itself, permitting wide-spread censorship of the press. The second one allowed to condemn any person directly or indirectly involved in a propaganda of the deed act, even if no killing was effectively carried on. The last one condemned any person or newspaper using anarchist propaganda (and, by extension, socialist libertarians present or former members of the International Workingmen's Association (IWA):

"1. Either by provocation or by apology... [anyone who has] encouraged one or several persons in committing either a stealing, or the crimes of murder, looting or arson...; 2. Or has addressed a provocation to military from the Army or the Navy, in the aim of diverting them from their military duties and the obedience due to their chiefs... will be deferred before courts and punished by a prison sentence of three months to two years.

Thus, free speech and encouraging propaganda of the deed or antimilitarism was severely restricted. Some people were condemned to prison for rejoicing themselves of the 1894 assassination of French president Sadi Carnot by the Italian anarchist Caserio. The term of lois scélérates has since entered popular language to design any harsh or injust laws, in particular anti-terrorism legislation which often broadly represses the whole of the social movements.

The United Kingdom quickly became the last haven for political refugees, in particular anarchists, who were all conflated with the few who had engaged in bombings. Already, the First International had been founded in London in 1871, where Karl Marx had taken refuge. But in the 1890s, the Kingdom became a nest for anarchist colonies expelled from the continent, in particular between 1892 and 1895, which marked the height of the repression. Louise Michel, aka "the Red Virgin," Emile Pouget or Charles Matato were the most famous of the many, anonymous anarchists, desertors or simple criminals who had fled France and other European countries. A lot of them returned to France after President Felix Faure's amnesty in February 1895. A few hundreds persons related to the anarchist movement would however remain in the UK between 1880 and 1914. The right of asylum was a British tradition since the Reformation in the 16th century. However, it would progressively erode itself, and the French immigrants met with hostility. Several hate campaigns would be issued in the British press in the 1890s against these French exilees, relayed by riots and a "restrictionist" party which advocated the end of liberality concerning freedom of movement, and hostility towards French and international activists

Could the Kingdom continue to provide haven for activists which did not confine themselves to opposition in one single country, but which travel from country to country, theorizing in international Revolution? Thus, strong debates began to shake the island, which finally decided to restrict freedom of movement. Thus were created one of the first immigration control laws. In a wholly different context, the same kind of debate would be lifted at the end of the 20th century, with the resurgence of international terrorism, this time under the guise of Islamic terrorism.

International conventions related to terrorism and counter-terrorism cases

Further information: International conventions on terrorism

Terrorism has been on the international agenda since 1934, when the League of Nations, predecessor of the United Nations founded during the June 1945 San Francisco Conference, took the first major step towards discussing a draft convention for the prevention and punishment of terrorism. Although the Convention was eventually adopted in 1937, it never came into force. There are today thirteen international conventions in force, opened to ratification. They were developed under the auspices of the United Nations and its specialized agencies and the International Atomic Energy Agency (IAEA). A 14th international convention is currently under negotiations. The UN General Assembly adopted on 8 September 2006 a "Global Counter-Terrorism Strategy"

• 1961 Vienna Convention on Diplomatic Relations
• 1963 Vienna Convention on Consular Relations
• 1963 Convention on Offenses and Certain Other Acts Committed On Board Aircraft (Tokyo Convention, agreed 9/63—safety of aviation)
• 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention, agreed 12/70)
• 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention, agreed 9/71)
• 1979 Convention on the Physical Protection of Nuclear Material (Nuclear Materials Convention, agreed 10/79)
• 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (agreed 2/88)
• 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation
• 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf
• 1991 Convention on the Marking of Plastic Explosives for the Purpose of Identification
• UN Security Council Resolution 731 (January 21, 1992)
• UN Security Council Resolution 748 (March 31, 1992)
• UN Security Council Resolution 883 (November 11, 1993)
• International Convention for the Suppression of Terrorist Financing 1999
• September 28, 2001 United Nations Security Council Resolution 1373

Council of Europe

• 1977 European Convention on the Suppression of Terrorism (Strasbourg, January 1977)[2]
• 2003 Protocol (Strasbourg, May 2003)[3]
• 2006 Council of Europe Convention on the Prevention of Terrorism

[4]

Others regional conventions

Commonwealth of Independent States

1. • Treaty on Cooperation among States Members of the Commonwealth of Independent States in Combating Terrorism (Minsk, June 1999) [5]

North and South America

1. • Organisation of American States Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance (Washington, D.C. February 1971)[6]
   • Inter-American Convention Against Terrorism (Bridgetown, June 2002 )[7]

Africa

1. • Organisation of African Union Convention on the Prevention and Combating of Terrorism (Algiers July 1999)[8] and
   • the Protocol to that Convention, Addis Ababa July 2004)[9] [as of 30 August 2005 the Protocol was not yet in force]

Asia

1. • SAARC Regional Convention on Suppression of Terrorism (Kathmandu, November 1987)[10]
   • and the 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 [As of 17 February 2007 not yet in force][11]

League of Arab States

1. • Arab Convention on the Suppression of Terrorism (Cairo, April 1998)[12]

Organization of the Islamic Conference

1. • Convention of the Organization of the Islamic Conference on Combating International Terrorism (Ouagadougou, July 1999)[13]

Anti-terrorist legislation in the European Union

European Union

• EU Framework Decision on Terrorism [14]

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 Minister anti-terrorism unit have authority to detain people suspected of "conspiracy in relation to terrorism" while evidence is gathered against them.

Italy

Further information: History of the Italian Republic

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

The Reale Act was adopted on May 22, 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.

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 April 11, 1974 authorized a four years 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.

The Cossiga decree-law was passed on December 15, 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. 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

United Kingdom

• Prevention of Terrorism Act (Northern Ireland), 1974–89
• Terrorism Act 2000
• Anti-terrorism, Crime and Security Act 2001 (the Racial and Religious Hatred Act was supposed to be part of it as provisions, but it was dropped)
• The Prevention of Terrorism Act 2005 is intended to deal with the Law Lords' ruling of 16 December, 2004, that the detention without trial of nine foreigners at HM Prison Belmarsh under Part IV of the Anti-terrorism, Crime and Security Act 2001 was unlawful, being incompatible with the European Convention on Human Rights. It was given Royal Assent on March 11, 2005. The Act allows the Home Secretary to impose "control orders" on people he suspects of involvement in terrorism, which in some cases may derogate (opt out) from human rights laws. In April 2006, a High Court judge issued a declaration that section 3 of the Act was incompatible with the right to a fair trial under article 6 of the European Convention on Human Rights. The Act was described by Mr Justice Sullivan as an 'affront to justice'. Amnesty International, Human Rights Watch, JUSTICE and Liberty have opposed it. Criticism of the Act included complaints about the range of restrictions that could be imposed, the use of closed proceedings and special advocates to hear secret evidence against the detainee, and the possibility that evidence against detainees may include evidence obtained in other countries by torture.
• Terrorism Act 2006

There have been concerns that anti-terrorism legislation is so broad as to enable its use to stifle legitimate protest: see for example the case of Walter Wolfgang.

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

Australia

• Australian anti-terrorism legislation, 2004
• Australian Anti-Terrorism Act 2005

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."

Canada

• Canadian Anti-Terrorism Act, 2001

India

• Terrorist and Disruptive Activities (Prevention) Act (1985-1995)
• Prevention of Terrorist Activities Act

South Africa

• South African Terrorism Act No 83 of 1967

United States

Federal

• US Antiterrorism and Effective Death Penalty Act of 1996 (see also the LaGrand case which opposed in 1999-2001 Germany to the US in the International Court of Justice concerning a German citizen convicted of armed robbery and murder, and sentenced to death)
• Executive Order 13224, signed by President George W. Bush Sept. 23,2001, among other things, authorizes the seizure of assets of organizations or individuals designated by the Secretary of the Treasury to assist, sponsor, or provide material or financial support or who are otherwise associated with terrorists. 66 Fed. Reg. 49,079 (Sept. 23, 2001).
• 2001 Uniting and Strengthening America by Providing Appropriate Tools for Intercepting and Obstructing Terrorism Act (USA PATRIOT Act)(amended March 2006) (the Financial Anti-Terrorism Act was integrated to it)
• Homeland Security Act of 2002, Pub. L. 107-296.
• Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act) of 2002
• Border Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005
• REAL ID Act of 2005
• Military Commissions Act of 2006

Ohio

• US Ohio Patriot Act

Anti-terrorism legislation in civil law countries

Chile

Human Rights Watch has criticized the Chilean government for inappropriately using anti-terrorist legislation against indigenous (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. 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.

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

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 of 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. The charges were reduced to "disorderly conduct" in early February 2008 and then completely dropped later in the month.

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.". Lori Berenson, a US citizen serving a 20 years 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 is a Philippine law that took effect in 2007. It is 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. The law criminalizes terrorism and allows authorities to arrest terror suspects without warrants and temporarily detain them or up to three days without charges. Under the law, detained terrorists are entitled to see a lawyer, a priest, a doctor, or family members.

See also

• Anti-Socialist Laws passed in Germany in 1878
• High policing
• National security
• Rule of law
• state of emergency
• Philosopher Giorgio Agamben's criticism of emergency laws

External links

• A comparative perspective on terror laws - India and Britain
• British Foreign Office report - Counter-terrorism Legislation and Practice: A Survey of Selected Countries, October 2005 (pdf) - this report outlines current anti-terrorism legislation in ten democratic nations, including the United States, Canada, Australia and a portion of Europe.
• counter-terrorism-law.org