November 2001

Submission of the Women's International League for Peace and Freedom (Aotearoa) on the Terrorism Suppression Bill to the Foreign Affairs, Defence and Trade Select Committee.

Introduction

We have noted with considerable dismay the proposed amendments to the Terrorism (Bombings and Financing) Bill and the secretive way in which the government first intended to rush the changes into law without full public consultation. We are similarly dismayed at the extremely short length of time given for people to prepare their submissions on the Terrorism Suppression Bill; and do not consider such a time period to be sufficient for the preparations of submissions on such a complex, and extreme, piece of legislation.

We are opposed to the Terrorism Suppression Bill being passed into legislation, as it marks a major erosion of civil liberties and human rights in this country. Our opposition to the Bill does not come from any support for terrorism as we are totally opposed to violence as a means of drawing attention to, or being used as a way to resolve, any conflict or disagreement.

As an organisation with Consultative Status with the United Nations, we are generally appreciative of the enactment of United Nations Conventions and so on into law in this country. However, the implementation of Security Council Resolution 1373 (the apparent motive for the Terrorism Suppression Bill) should not involve the removal or erosion of human rights - such behaviour is contrary to the principles of justice embodied in the United Nations Charter and international law relating to human rights.

It should be noted that the Resolutions adopted by the General Assembly in its discussions about terrorism over a number of years, always refer to the need for states to respect human rights, to be guided by the Charter of the United Nations, the Universal Declaration of Human Rights or similar. General Assembly Resolution 55/158 'Measures to eliminate international terrorism' (adopted in January 2001) specifically states in point 3: "Reiterates its call upon all States to adopt further measures in accordance with the Charter of the United Nations, and the relevant provisions of international law, including international standards of human rights, to prevent terrorism ..." It is clearly evident that there is a duty to ensure care is taken to preserve, not erode, human rights in any measure to assist the elimination of terrorism.

Our opposition to the Terrorism Suppression Bill comes from a deep concern regarding its potential to be misused for political purposes and the way it breaches basic justice. There are three main areas of the proposed legislation which give rise to these concerns.

1) The designation of an entity as terrorist.

Under the proposed legislation, the designation of an entity as terrorist will be made by the Prime Minister in consultation with the Minister of Foreign Affairs. It is not at all appropriate that such a designation be made by politicians - matters of innocence and guilt are usually established by the courts in this country. There are very good reasons for the concept of separate judicial and political systems, the primary one being the desire to have matters of guilt and innocence established with a minimum of political interference.

It is not clear why such powers to designate an entity as terrorist are given to politicians in this proposed legislation. Phil Goff seemed to be saying on National radio that courts cannot be trusted with 'classified security information'. If that is indeed the case, then it is contradicted in the Terrorism Suppression Bill itself which permits 'classified security information' under some circumstances to be examined by the Court of Appeal (section 17X).

In addition to the inappropriateness of the designation being made by politicians, there is further the inappropriateness of appeals against any designation being considered by the Inspector-General of Intelligence and Security. Members of the Select Committee will be aware of the decision made by Justice Young in May 2000 in respect of the the court case David Small had taken against the police for the search of his home in 1996. The Inspector-General of Intelligence and Security had investigated the break-in, and had found no cause for complaint - yet Justice Young concluded that the search was unjustified 'political harassment' and awarded compensation. This does not inspire confidence in the capability of the Inspector-General of Intelligence and Security to act as an appeal body.

The designation of an entity as terrorist is clearly something which has serious consequences - in the case of the entity thus designated, seizure of property and assets; in the case of persons associating with, supporting etc the entity, offences which carry heavy penalties. Given the seriousness of the consequences, it is absolutely extraordinary that the Prime Minister can designate an entity as terrorist based on 'classified security information' provided by an agency, a government of another country, an agency of a government of another country, an international organisation or the Security Council - yet the proposed legislation does not specify any standard of proof. Even more extraordinary is the withholding of such information from the accused person/s - surely the very basis of the justice system is that the accused has the right to know about and challenge supposed 'evidence' against them.

Further, 'classified security information' as defined in the proposed legislation is extremely vague - a 'threat' to 'public order, or public interest' which 'may' be carried out. And on such 'evidence', which may be little more than rumour, people may have their property seized, or be charged with associating or supporting terrorists. It would be laughable were it not so serious.

Perhaps the lack of any standard of proof and due process explains why it is politicians who will designate an entity as terrorist - it is difficult to imagine how a modern court could implement such legislation.

2) The definition of a terrorist act

The definition of a terrorist act in this Bill is sufficiently wide as to potentially include acts which the government of the day decides for their own political or ideological reasons are disruptive, destructive or damaging. As such, the definition is open to potential political misuse.

Further, all of the acts covered in the Terrorism Suppression Bill are already covered by criminal law - acts of violence, destruction of property, risks to health and safety and so on as well as conspiracy to commit these crimes. If the purpose of this Bill is for the government to be able to report to the Security Council what measures they have taken to implement Resolution 1373, then surely the crimes already existing in law and their relevance to Resolution 1373 could be presented as the government's report.

3) The exclusion of acts which occur "in a situation of armed conflict [which] is, at the time and in the place that it occurs, in accordance with rules of international law applicable to the conflict."

Of all the astonishing aspects to the Terrorism Suppression Bill this is one we find most bizarre. Acts of terror in one context simply cannot cease to be acts of terror in another context. In part because of the types of weapons used, and also because of its nature, armed conflict is never carried out in accordance with the rules of international law.

The most obvious and regular breach which occurs is that of the 1977 First Protocol of the Geneva Conventions relating to the protection of civilians - for example: from Article 48 "... in order to ensure respect for and protection of the civilian population and civilian objects ... parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives ...."; and from Article 54: "it is prohibited to attack, destroy, remove or render useless [any] objects [which are] indispensable to the survival of the civilian population, such as foodstuffs ... crops, livestock, drinking water, installations and supplies and irrigation works ..."

At the time of writing this submission, the NZ government is supporting the United States led war against the people of Afghanistan - and clearly the First Protocol has been breached repeatedly in that armed conflict. Yet we suspect because they are on 'our' side, the United States government will never be held accountable for violations of international law.

The inclusion of the 'armed conflict' exclusion in the Terrorism Suppression Bill confirms our belief that this proposed legislation will not be applied equally to all who are guilty of acts of terrorism and for that reason alone it should not be passed into law.

It is a dangerous piece of legislation because it gives politicians powers which should correctly reside with the courts, and it takes away basic human rights and civil liberties such as a fair trial, and of the accused knowing what evidence is held against them. It is particularly open to political and ideological interpretation and therefore to misuse.