Coercive and Proactive Counterterrorism - week 6

Coercive Counterterrorism

  • Coercive counterterrorism involves using force or the threat of force to combat terrorism.
  • There are two primary models of coercive counterterrorism:
    • The criminal justice model, which treats terrorism as a crime to be investigated, prosecuted, and punished through the legal system.
    • The war model, which views terrorism as an act of war to be countered through military force and other means typically associated with armed conflict.
  • Both models have limits on who can be subjected to state violence.
    • The criminal justice model applies only to those suspected and found guilty of committing a crime.
    • The war model applies only to combatants and those directly providing military support to combatants.

Restrictions on State Violence

  • These restrictions on the exercise of violence in both models are the basis of the legitimacy given to the State by the rule of law, whether national or international.
  • In the criminal justice model, these rules include the prerogatives of due process, including:
    • The right to be informed of charges.
    • The right to be tried without undue delay.
    • The right to prepare and present a defense.
    • The right to be assisted by counsel.
    • The right not to be forced to confess.
    • The right to be presumed innocent until proven guilty.
  • For the war model, it is the rules of war embodied in international humanitarian law and human rights law that legitimize the actions of the State.
    • Example: Common Article 3 of the 1949 Geneva Conventions forbids "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
  • These judicial guarantees are generally assumed to include the prerogatives of due process, although this assumption has become problematic in the context of the US “war on terror” and the treatment of those considered to be enemy combatants by the US Administration.

Liberal Democracies vs. Authoritarian Regimes

  • Liberal democracies are distinguished from authoritarian or totalitarian regimes by their adherence to the rule of law and other democratic principles including:
    • Openness and transparency of procedures.
    • Accountability of government agents and institutions when things go wrong.
    • Maintenance of a bond of trust and confidence between citizen and government which results from a citizenry that is informed about public affairs.
  • Inherent to these principles are many of the human rights that are entrenched in a number of international conventions since the Second World War, most notably the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
  • These rights include:
    • Freedom of opinion and expression (UDHR, Article 19; ICCPR, Article 19).
    • Freedom of thought, conscience, and religion (UDHR, Article 18; ICCPR, Article 18).
    • Freedom of assembly and association (UDHR, Article 20; ICCPR, Articles 21 and 22).
    • Equality before the law (UDHR, Article 7; ICCPR, Article 26).
    • The right to privacy (UDHR, Article 12; ICCPR, Article 17).
    • The right to take part in the government of the country (UDHR, Article 21) and to take part in the conduct of public affairs (ICCPR, Article 25).
  • When citizens exercise these rights by promoting or using violence or at the expense of other people’s rights, they can be held accountable before the law.
  • Similarly, when state agents exercise their duties in a way that contravenes the rule of law or democratic principles, they too can be held legally accountable.
  • This is the essence of social control and the exercise of power in democratic societies, and it is equally applicable to counterterrorism.
  • When state agents acting in the name of counterterrorism consistently contravene the rule of law or the laws of war with impunity, using their coercive powers in ways that create a reign of terror that is sanctioned by the State, then they have become state terrorists, mirroring the behavior of the terrorists they are fighting.

Blurring of Models

  • The two models are transforming and blurring in response to the complex challenges of the broader security environment.

The Criminal Justice Model

  • Main characteristics of the criminal justice model in the context of counterterrorism.
    • Terrorism is viewed as a crime.
    • Law enforcement agencies are the primary actors.
    • Emphasis on investigation, arrest, prosecution, and punishment.
    • Goal is to bring terrorists to justice.
    • Adherence to due process and the rule of law.
  • Historically, terrorism was primarily dealt with through the criminal justice model.
    • This changed after the 9/11 attacks.
  • Some countries had pre-existing anti-terrorism measures.
    • The United Kingdom relied on special terrorist offenses and procedures to deal with “The Troubles” in Northern Ireland.
    • France implemented anti-terrorist measures in the mid-1990s due to attacks from Islamic terrorists.
    • Israel had strong anti-terrorism legislation before September 11 due to its experience with Palestinian terrorism.

International Conventions

  • A number of international conventions deal with specific terrorist acts:
    • Acts committed on-board aircraft (Tokyo 1963).
    • Unlawful seizure of aircraft (The Hague 1970).
    • Acts against the safety of civil aviation (Montreal 1971).
    • Crimes against internationally protected persons (New York 1973).
    • Taking of hostages (New York 1979).
    • Nuclear materials (Vienna 1980).
    • Acts against the safety of fixed platforms on the continental shelf (Rome 1988).
    • Maritime navigation (Rome 1988).
    • Violence at airports (Montreal 1988).
    • Plastic explosives identification (Montreal 1991).
    • Terrorist bombings (New York 1997).
    • Terrorist financing (New York 1999).
    • Nuclear terrorism (New York 2005).
  • Regional conventions and accords also exist:
    • Organization of American States (OAS) Convention to Prevent and Punish Acts of Terrorism (Washington 1971).
    • European Convention on the Prevention of Terrorism (Strasbourg 1977).
    • Arab Convention on the Suppression of Terrorism (Cairo 1998).
    • Organization of African Unity (OAU) Convention on the Prevention and Combating of Terrorism (Algiers 1999).
  • Post-9/11 accords include:
    • The Inter-American Convention Against Terrorism (Bridgetown, Barbados 2002).
    • The Council of Europe Convention on the Prevention of Terrorism (Warsaw 2005).
    • The Association of Southeast Asian Nations (ASEAN) Convention on Counter Terrorism (Cebu, The Philippines 2007).
  • Two international disarmament treaties could be linked to fighting terrorism:
    • The 1972 Biological Weapons Convention.
    • The 1994 Chemical Weapons Convention.

Functions of Criminal Justice

  • The criminal justice model serves several functions:
    • Delegitimization: Stigmatizing terrorism through criminalization.
    • Education: Publicly confirming the unacceptability of terrorism.
    • Deterrence: Preventing terrorist acts through the threat of sanctions.
    • Retribution: Punishing terrorists according to due process.
    • Rehabilitation: Giving terrorists the chance to renounce violence.
    • Incapacitation: Isolating imprisoned terrorists.

Rehabilitation

  • Criminal justice model can also perform a rehabilitative function, helping the convicted terrorist rethink their error and reintegrate into society.
  • Example: In Italy, repentance laws required convicted terrorists to renounce violence in exchange for lenient treatment.
  • Article 2 of Law 155/2005 permits discretionary residence permits to illegal foreigners who collaborate with the authorities.

Critique of the Criminal Justice Approach

  • Rule of Law:
    • A fundamental principle of criminal law is that there is no crime or punishment without law.

Difficulties in Gathering Evidence

  • Secrecy of Terrorist Acts:
    • Terrorist acts are planned in secret and executed without warning, making evidence gathering problematic.
  • Witness Intimidation:
    • Witnesses can be intimidated into remaining silent or refusing to cooperate.
  • Suspect Silence:
    • Captured terrorists often remain silent to protect colleagues or allow them time to escape.
  • Questionable Interrogation Methods:
    • Pressure to get suspects to confess can lead to questionable interrogation methods, including torture.
    • Evidence extracted in such ways is usually inadmissible in court.

Limits to the Criminal Justice Model

  • Suspect Release Due to Insufficient Evidence:
    • Sometimes, suspects have to be released due to insufficient evidence, even though it is likely they are guilty.
  • Compromising Suspects' Rights:
    • The right to remain silent has been compromised, allowing juries to consider their refusal to answer questions.
  • Detention Without Due Process:
    • After 9/11, some countries permitted suspects to be detained incommunicado without trial, access to a lawyer, or the right to remain silent.
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