SPA submission

November 2001

Submission of the Socialist Party of Aotearoa of New Zealand on the Terrorism Suppression Bill to the Foreign Affairs, Defence and Trade Select Committee.

General summary

We do not support this bill because it breaches all the principles of natural justice and will lead to abuses. We argue that the international history of repressive legislation like the proposed bill shows that it will be ineffective against terrorism.

Recommendations

The bill needs to be completely rewritten based on the principles of one law for everybody and the protection of people's right to just and fair trials.

The repressive intent of the bill is wrong in principle, and the New Zealand government should instead put its main anti-terrorist effort into removing the injustices that allow terrorism to flourish. This means returning to a foreign policy that advocates adherence to international law and the peaceful settlement of conflicts. We should continue to develop our international role as peacemakers and peacekeepers.

Peaceful settlement of conflicts versus violence and repression

The approach taken by this bill, which is to increase repression of designated "terrorists", will not in fact be conducive to the goal of reducing and eliminating terrorism.

Terrorism does not arise out of nothing. Terrorist organisations and actions flourish in a particular climate, a climate of injustice maintained by overwhelming force. Only when large-scale injustices are perpetrated are whole populations prepared to sympathise with those who resort to desperate and murderous violence. When peaceful avenues exist for the resolution of injustices, people turn to peaceful political struggle, and support for terrorism ebbs away.

But if injustices are ignored and repression is intensified, hatred and resistance are strengthened and expanded. In the course of the repression, old injustices are entrenched and new injustices are inevitably created, leading to a vicious cycle of violence.

• Example: the Irish peace process

In Ireland Britain enacted repressive laws similar to this bill, including detention without trial and the use of secret evidence. Numerous injustices occurred in English courts in which Irish people were wrongfully imprisoned. Supporters of the IRA were also criminalised and legally prevented from expressing their opinions in the media or taking their elected positions in Parliament.

The present peace process in Northern Ireland has depended on the British government's lifting its repression in Northern Ireland. It has taken steps towards reforming the biased judiciary and police, and allowed nationalists and the Irish Government a say in the running of the province.

• Example: South Africa

The peaceful transformation of South Africa into a multi-racial democracy was accomplished by demolishing the anti-terrorist apparatus and providing the South African people with peaceful ways to overcome the unjust racist state.

Under the apartheid regime, the racist government of South Africa used the most brutal repressive measures against "terrorists", a category under which they placed all their serious opponents. The South African "anti-terrorist" laws involved secret evidence, detention without trial, and designated organisations, all measures included in the proposed anti-terrorist bill in New Zealand.

Legal regimes that create lists of specially victimised "criminals" are never conducive to the peaceful resolution of conflict, since the organisations that are declared to be "terrorist" organisations can only be destroyed, rather than engaged in peaceful negotiation.

The armed struggle of the ANC, such as it was, would meet the criteria of terrorism under the proposed bill, and Nelson Mandela was regularly characterised as an arch-terrorist by the apartheid regime and their right wing supporters in the West.

Since organisations like the ANC in South Africa, the PLO in Palestine and the IRA in Ireland, are absolutely essential to any negotiated settlement, their demonisation as terrorists at best postpones and at worst prevents an end to violent conflict.

Therefore it is a mistake to make repression the main focus of the NZ Government's response to terrorism, as this bill does. Instead, the main focus of our government's policy should be to help correct the injustices that spawn terrorist violence.

The focus on chasing Arab terrorists and killing them will not resolve the deep crisis in Arabia that results from the Israeli occupation and ethnic cleansing in Palestine, and the genocidal sanctions against the people of Iraq. NZ should be working to end sanctions and to enforce the international laws equitably. For decades past and still today, Israel, with the support of their friend and ours, the United States, has been committing serious crimes against the Arabs with complete impunity. These crimes include aggression, occupation, the ethnic cleansing of Arabs from their homes to make way for Jewish settlement, economic blockade, ethnic discrimination in access to resources like water and to services including education and health, collective punishment, mass murder by auxiliary forces, death squad assassinations and torture.

These crying injustices are the source of widespread and bitter hatred against Israel and their patron, the United States. This justified hatred and anger in turn builds and sustains support for terrorist actions. Terrorism is resorted to because legal, peaceful methods are useless when Israel is free to flout international law, and because conventional military means of struggle are not feasible against the overwhelming military might of Israel and the US.

So long as Israel's crimes are committed with impunity there is no way that violence against the US or its Israeli clients will cease, no matter what repressive laws are introduced. Forcing Israel to withdraw from the occupied Palestinian and Syrian territories in accordance with international law and UN resolutions would be the single biggest step to resolving the problem posed by Arab mass support for terrorist violence against the USA.

PMs "list" of terrorists

The method used by the bill to define terrorism is unjust. The bill sets out an extremely broad definition of terrorism, a definition that taken by itself would criminalise any armed actions undertaken anywhere in aid of national liberation or to achieve freedom from tyranny, unless the violence of the conflict had escalated to the scale of warfare. Thus it criminalises grass-roots resistance while exonerating armed aggression.

It would also outlaw practically all staunch domestic dissent or support for national liberation movements.

The generality of this definition is, however, seriously limited by the role played by the Prime Minister of the time and their advisors from the secret police and foreign ministry. Basically, a person or organisation only becomes punishable as a terrorist when they are designated as such. This purports to be a safeguard against the broadness of the definition, ostensibly preventing the law's use to suppress dissent. This supposed safeguard actually adds to the risk of abuses possible under the proposed law.

This law conflicts with the principle that there should be one law for all. The role of the incumbent PM as the final arbiter of terrorists and terrorist organisations is unsafe, undemocratic, and undermines all the principles of natural justice.

The proposed bill contrives to make the law at once both too weak and too strong. It's strong where it allows for criminalizing the innocent as terrorists, and weak where it provides immunity to terrorists who have the support of the rich and powerful.

• Protecting the guilty from embarrassment, let alone justice

There can be no doubt that the definitions of a terrorist act in subsection 3 will factually apply to organisations that will never be listed as terrorists by the Prime Minister, for reasons of state policy.

It's easy to see that the PM's discretion includes the aspect of protecting the guilty.

For example, the CIA was found by the International Court of Justice to have mined Nicaraguan harbours in violation of international law, but no-one should hold their breath waiting for the CIA to be designated as a terrorist organisation. Here the PM's discretion in "listing" terrorists will have to be used to indemnify the guilty, a course made necessary by the power that the US exercises over our government.

Similarly, when the French secret police (the DGSE) bombed the Rainbow Warrior, they suffered no censure or listing as terrorists from their allies Britain and the USA. Instead NZ was subjected to economic sanctions and coercion (further "terrorist" actions) by France, who were supported by the countries who are supposedly leading today's "coalition against terror". NZ was finally compelled to release the terrorists to French custody from which they were set free in violation of the agreement that settled the dispute. To cap it off, the French regime promoted and decorated the terrorists.

Consider the effect on the legislation if any person could lay a complaint of terrorism against an organisation which could be tried in an ordinary court without access to supposedly sensitive or secret evidence. Public information is sufficient to prove, for example, that the CIA and the DGSE have indisputably committed terrorist acts as defined in subsection 3, as in the examples of the Nicaraguan harbour-mining and the Rainbow Warrior bombing respectively. The process of criminal law was sufficient for a finding of manslaughter in the Rainbow Warrior case. There should be nothing preventing such an extension of the law if subsection three were properly framed.

However, the power politics demonstrated in the Rainbow Warrior case show that NZ could not hope to bring to justice terrorists working for our "friends" France and the USA. The unthinkability of criminalising the terrorism of those powerful states and their proxies translates into the necessity of the PM's discretion to protect them from designation as terrorists.

Similarly, Israel's criminal actions against the Palestinians do not meet the criteria to be exempted simply because there is an armed conflict. Israel's actions, e.g. Jewish settlement of occupied Arab land, assassination, torture, collective punishment, and military occupation in defiance of UN resolutions, blatantly violate international law and the laws of war.

Nevertheless, there is no way that the Israeli government and armed forces will be designated terrorists, let alone that their supporters in the US government and ruling elite will have their assets in New Zealand frozen for bankrolling these terrorists. In this case too, the PM's discretion will have to be used to prevent the just and equitable application of the law, since the US will not tolerate anyone finding them or their allies to be terrorists.

• Criminalising fighters for justice

On the other hand, the bill contains nothing to prevent the criminalisation of legitimate dissent. The exemptions specified are interpreted by the Prime Minster. No national liberation movement need be exempted from the charge of terrorism unless the PM agrees with it. If Robert Muldoon, who opposed the ANC and supported the racist South African regime, had administered this anti-terrorist law, there would have been no way to prevent the criminalisation of the NZ support for that country's liberation.

It's a truism that one person's terrorist is another person's freedom fighter. No matter what your political persuasion you will find examples of persons who were once deemed terrorists and who committed the violent acts described in subsection 3 but who are now recognised as legitimate political leaders in their countries… the list includes Nelson Mandela (ANC), Jose Ramos Horta (Fretelin), Yasser Arafat (PLO), Hashim Thaci (KLA), Burhanuddin Rabbani (Afghan United Front).

It's an irony of the present situation that Osama bin Laden illustrates the principle that one person's freedom fighter is the very same person's terrorist when they later fall out, since his terrorist acts were backed by the US so long as they were directed against the left wing Afghan government and its Soviet allies. Conversely the US changed its view of the KLA from terrorists to freedom fighters when it decided to use them as ground troops in the NATO conquest and partition of Yugoslavia.

No-one has been able to form a distinction which is free from political coloration between terrorism and legitimate political violence, and this is because "terrorist" acts as they are defined in subsection 3 are inevitably committed by both sides in any armed conflict, before it escalates into war, or as part of the grass-roots resistance of the defeated and occupied side after a conquest.

The exemption for peaceful illegal protest is also empty in reality. Any serious protest movement, which has reached the stage of civil disobedience, can be designated as violent if that is the intent of the Prime Minister. It would be enough to provoke some defensive violence by aggressive and provocative use of the police and armed forces. Any violent response would be used as a justification for suppressing the movement as a whole. The history of Muldoon's cynical manipulation of the policing of the Springbok tour protests to manufacture violence at times and places that met his needs for support in marginal seats shows how simple it would be to evade this supposed exemption for a government which wished to repress a basically peaceful protest movement.

• National independence: who is in charge of the list?

The system of designating only specific users or supporters of political violence as terrorists and ignoring others, poses a grave risk to New Zealand's sovereignty.

Persons who have been criminalised on the basis of testimony from the secret services have essentially no chance of defending themselves if the evidence against them is secret. And this secret evidence will not only derive from domestic sources, but also through the foreign secret services with which NZ is allied. These foreign organisations can veto the release of any evidence they provide. The SIS and other secret services are strongly linked to, and effectively led by, the US CIA, an agency which has shown itself to be unafraid to use terrorist as well as other illegal measures to intervene in the politics of other countries.

This bill opens up the possibility for the CIA, through its local allies in the SIS, to designate a person in NZ to be locked up. They can provide secret and unchallengeable evidence, which could be used to incarcerate domestic opponents of the US and its world rule. Our Prime Minister would be faced with obeying this instruction, a task facilitated by the total secrecy and lack of broad accountability.

NZ citizens could also be extradited unjustly to jurisdictions like the United States, where they would face unjust and secret summary trials by the military apparatus.

The historical record shows that the CIA would cheerfully falsify evidence to obtain such a result, should that seem necessary to them. There is evidence that our SIS are already using this strategy, in the shape of the "APEC bomb" hoax that was used to justify an illegal SIS search.

Safety for NZ opponents of US world empire from US-controlled unjust imprisonment is not provided for in the bill. Our defence against this injustice would rely on a Prime Minister who might well be politically hostile to the citizens they are supposedly protecting and politically close to the US ruling circles attempting the repression. In any case our PM would be well aware that the US has threatened with punishment any countries whose co-operation in hunting down the US's designated enemies is considered less than satisfactory. The freeing of the Rainbow Warrior terrorists shows that we would have no reason to expect that any NZ PM would consider the pursuit of justice to be more in the national interest than maintaining good relations with powerful and vindictive empires like France or the USA.

Secrecy, impunity, injustice

• Secret police abuse of power

Historically, legal systems that effectively allow the executive and the secret police to lock up opposition without the bother of open and fair trials are nothing new. The use of secret police investigations, secret trials and secret evidence has invariably led to gross miscarriages of justice and usually to crimes against humanity.

The secret services in New Zealand have a history of being instruments of repression against left wing and progressive political forces. Deeply hostile to the left wing, and led ideologically and factually by the CIA, our secret services have spied on and sabotaged left wing organisations and kept left-wingers from responsible jobs. The SIS for decades shamelessly relied on the imaginary and farcical Communist plot to violently overthrow the NZ government to justify its political interventions, and would lie again without a moment's hesitation in pursuit of their right-wing and pro-US agenda.

The SIS has been blatantly abused for political purposes, most notoriously by Muldoon in his campaign to repress the SUP and the anti-Springbok Tour movement.

• Secret "justice" is injustice

How can you defend yourself against secret evidence? Principles of natural justice demand that a person be able to confront their accusers and the evidence against them. These principles are not arbitrary or something to be brushed aside when inconvenient. It's precisely when there is an emergency that these rights are most important, since it's at moments of crisis that hysteria and secrecy permit the commission of grave crimes and injustices by the authorities.

Three recommendations

• One law for everyone

Terrorism should be defined by specifying definite criminal acts of terror, the commission of which makes you a terrorist, not by the selection of a list of persons to be criminalised as terrorists along with a tacit list of those guilty of the same acts who are to have immunity.

The court of criminal law is sufficient to deal with these acts (again, remember the Rainbow Warrior case we had laws covering manslaughter and didn't need specific "terrorism" legislation to prosecute). There should be no room for discretion for the PM in taking action against supposed terrorists except as immediate and temporary emergency orders, and in any case final decisions could and should be made by open trial in court.

• Fair and open trials

No trial can be fair unless it gives the accused the right to confront their accusers and the evidence against them. No person should have to prove their own innocence, as this law provides, but should be presumed innocent until proven guilty. Secret evidence can not properly be called "evidence" since it is not made evident; it is more properly called "denunciation".

• Justice not repression

We have to rely on justice not repression to fight terrorism.

Instead of joining the US bandwagon of world-wide war, while ignoring the injustices committed by US power, we should be pursuing an independent and principled policy. New Zealand should remain non-aligned and fully independent. We should be insisting on respect for the UN charter even by the US superpower and its allies and clients. We should be standing up for negotiation and the peaceful resolution of conflicts as specified in the UN charter. We should be insisting that international law should apply equally to the US and its allies since this is the only means for resolving the injustices of the US empire, most especially Israel's occupation, ethnic cleansing and colonisation of Palestine.

Link to Submissions on Terrorism Bill index page

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