Peter Wills submission

November 2001

Submission of Peter Wills on the Terrorism Suppression Bill to the Foreign Affairs, Defence and Trade Select Committee.

I have taken an active professional interest in Defence, Security and Intelligence matters for more than 15 years. A list of my publications in these areas is appended to these submissions.

The Terrorism Suppression Bill has laudable goals and will do much to institute specific legal sanctions against terrorism. Unfortunately it is too broad in the manner in which it spreads the net over individuals and organizations and nowhere near broad enough in the manner in which it spreads the net to cover governmental agencies. I will leave it largely to others to address the former of these problems and concentrate on the latter.

As it stands, the Terrorism Suppression Bill is a piece of United Nations window dressing that fails to challenge the realities of international terrorism in New Zealand. . Any New Zealand law dealing with terrorism must recognize that a "friendly" government agency has committed a terrorist act in this country and it must deal with such possibilities in a firm fashion.

Many acts of terrorism are committed by government agencies. The bombing in Auckland of the Rainbow Warrior by the French DGSE is the main domestic case in point. Another example was the CIA-sponsored car bomb in Lebanon that missed its assassination target but killed numerous civilians. Agencies which perform, support or condone such acts of terrorism should be outlawed by the international community. They should be closed down, prosecuted and their assets seized, as is envisaged for other terrorist organizations. Associated organizations or agencies which collaborate with them, knowingly or with reckless disregard for their intentions or modus operandi, should be held accountable.

Our laws cannot set up double standards. That is the most basic principle of justice. Being a government, of France, the United States or New Zealand, does not confer the right to be a terrorist.

Inappropriate exemptions

It would be admirable if all acts defined in subclauses 5(1),(2)&(3) were outlawed, but Clause 5(4) exempts the categories of peaceful protest, absence from the workplace, secret agency operations and war.

How peaceful protest or absence from the workplace could result in any of the outcomes defined in subclauses 5(3)(a),(b)&(c) defies the imagination, however it is conceivable that massive popular uprising could eventually result in the outcomes (serious disruption to an infrastructure facility or the national economy) defined in subclauses 5(3)(d)&(e). Under such circumstances subclause 5(4)(a) or 5(4)(b) would stop the Prime Minister of an extremely unpopular government from using provisions of the proposed Act to suppress opposition by selectively labeling her (or his) political opponents as terrorist leaders and various popular organizations as terrorist entities. Thus, the exemptions of subclauses 5(4)(a)&(b) offer the people and workers of New Zealand some minor protection against extreme governmental facism. A far simpler solution would be to delete subclauses 5(3)(d)&(e), because making such acts illegal has nothing special to do with the suppression of terrorism and are illegal under various other laws. In that case the exemptions in subclauses 5(4)(a)&(b) would be quite unnecessary. Peaceful protest or absence from the workplace should be no excuse for causing death, serious harm or seriously endangering the health or safety of a population the way a terrorist might.

However, the exemption of approved secret agencies and military entities from the law under subclauses (5)4(c)&(d) is of grave concern. The first exemption is "any other act that is authorized or required by law". [The use of the word "other" is somewhat problematic but its scope would seem to be restricted to Clause (5)4, in which case it simply means "other than peaceful protest and absence from work".] This is the paragraph of the law which allows governments to be terrorists, because they have laws that authorize agencies like the DGSE, CIA or MI6 to perform acts that fall within Clause 5(2) of the Bill. If it were not implied that the law of other nations like France or the United States conferred the exemption then it would be necessary to arrest various officials of those countries for offences under Clause 9 of the Bill. It is equally clear that "Islamic law" would not be recognized as a ground for performing a terrorist act, whereas authorization under New Zealand law would be.

As it stands, the Bill provides for the government of New Zealand to reserve the right to be a terrorist and it excuses certain other governments for being terrorists, as we know they are, and as they have proved themselves to be in the killing of Fernando Periera in Auckland on 10 July 1985 and various other acts in other countries.

The setting of the booby-trap bomb that killed the five El-Astal children, Sultan, Muhammad, Anis, Amer and Akram, on their way to school from Khan Yunes Refugee Camp on 22 November 2001 was authorized by Israeli law and it would therefore not be considered a terrorist act under this Bill.

Subclause 5(4)(c) has no place in the laws of a civilized country. It consigns countless victims of state terrorism to the category of collateral damage. The Bill should be amended so that any possible legal authorization for any terrorist act as defined by Clause 5(2) is systematically eliminated from New Zealand law. Furthermore, New Zealand should have the fortitude to address the issue within the United Nations and sponsor a resolution requiring the same legislative action by all other states.

New Zealand must likewise press for greater restrictions on the rules of international law applicable to armed conflict so that acts of war that recklessly cause outcomes defined in Clause 5(3) of the Bill are proscribed. Subclause 5(4)(d) provides an exemption that legitimizes the settling of international disputes by armed conflict. We should restrict the use of violent force to that which is strictly necessary to uphold international law, as we have done so admirably, by and large, in East Timor. We should not be party to any Texan-style posse on the international stage, as this subsection is intended to allow.

Inappropriate definition

The definition of a terrorist act in armed conflict is too narrow. It allows governments who enter into armed conflict, whether or not they declare war and whether or not they give any warning of attack, more lee-way to attack civilians than is allowed of other terrorist entities. Part (c) of this definition gives permission for what is euphemistically called "collateral damage". It does not allow the intentional killing of civilians, but it does allow their killing as a result of flagrant recklessness. The killing of civilians inside the Ministries of Defence of Iraq and Yugoslavia during various attacks on those countries is allowed by this definition, because it was not directly "intended", supposedly. It is arguable that the terrorist attack on the Pentagon would also be allowed if it could be proved that it was carried out by al-Qaeda as part of the armed conflict we are now witnessing. The intentions of the perpetrators of that act, vis-à-vis causing the deaths of the passengers on the plane, is unclear. The terrorists had no idea who the passengers were and did not care whether they lived or died, but causing their deaths may not have been any special intention. In all probability they would have carried out the attack even if no passengers had taken the flight they hijacked. The passengers were "collateral damage". In a similar way, American pilots have no idea who the civilians working in foreign Defence Ministries are when they bomb them and kill them. There is little difference between such killing and the killing of civilians in the Pentagon by al-Qaeda terrorists.

The test of Clause 9 in respect of the financing of terrorism is that a person commits an offence if they collect funds intending that, or being reckless as to whether, they be used for terrorist purposes. There is no reason why the same test should not apply to terrorist acts themselves, including terrorist acts in armed conflict. It is rather strange that the Bill envisages stronger sanction against the financing of terrorism than against terrorism itself. The ideal terrorist act is one in which all of the damage is collateral. No particular or personal damage is specifically intended. Just general destruction. Then there is a broad spectrum of acts with decreasing degrees of collateral damage all the way down to clean warfare between opposing forces on an open battlefield. At various stages in between we allow our friends to kill unsuspecting, uninvolved civilians (and we even train our own troops how to murder in extreme circumstances and then place them in situations where such circumstances are likely to arise), but if our enemies do the same things we say they are terrorists. The division between friends and enemies is usually down the lines of some crude ethnic separation, in the case of the differentiation between Afghani tribes. The definition of a terrorist act in armed conflict should be amended so as to cover an act "that is intended to cause, or is carried out recklessly so that it may cause, death or serious bodily injury to a civilian". With this expanded definition military commanders who make plans that involve unlimited collateral damage will be in the same category as other participants in armed conflict who trade in terror. The law must put everyone on the same footing when it comes to their right to kill civilians.

The Bill constructs "armed conflict" as a norm of international relations and, within that context, excuses acts that are equivalent, for all practical purposes, to acts that are defined elsewhere to be terrorism. Approved governments are excused for killing civilians with impunity in armed conflict, but similar acts are given their true description, terror, when they are performed by certain other organizations.

Inappropriate discretionary powers

Clause 17A of the Bill gives the Prime Minister discretionary power to designate an entity as a terrorist entity, but it puts her (or him) under no obligation to make such a designation in respect of terrorist organizations with whom she (or he) is friendly. This allows entities that perform terrorist acts to have the support of the Prime Minister even when they do not have the support of the New Zealand people.

This clause of the Bill, along with Clause 17C, makes it clear that the overall purpose is to divide the world into those who are on our side and those who are "terrorists" - exactly the crude differentiation demanded by the current president of the United States.

Before making a final designation of an entity as a terrorist entity the Prime Minister is required to consult the Minister of Foreign Affairs and Trade. Why not the Minister of Justice, or Police, one might ask. What is special about Foreign Affairs and Trade rather than Justice or the Police in relation to terrorism? The answer is obvious. We have learned how to twist the language of our moral code so as to cover acts of arbitrary violence when we are promised an advantage if we turn a blind eye.

An entity should be designated as a terrorist entity on the basis of what it does, not according to whether the Prime Minister of the time wants to cosy up to governments like those of France, the United States and Israel who perform, finance and support terrorist acts but call them by a different name. It should be open to citizens of this country to go to the High Court and have an entity such as the DGSE or the CIA designated as a terrorist entity by our judiciary solely on the basis of the evidence, irrespective of who the Prime Minister's favourites are at the time. Let the Prime Minister put all of the classified security information she has before a High Court judge alongside all of the evidence already available from citizens of this country and let the judge decide whether the DGSE "has carried out, or participated in carrying out, 1 or more terrorist acts" [subclause 17C(1)].

This Bill purports to seek the finding and bringing to justice of terrorists and those who help them. The real effect of the Bill is to fence off terrorism so that it illegal under New Zealand law only if it is performed by representatives of organizations whom we are, for the time being, fighting. The goal should be to require that all terrorist entities be dismantled, whether those entities exist in New Zealand or overseas, and even if they are government agencies.

Peter R Wills, Auckland

Link to Submissions on Terrorism Bill index page

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