COUNTER-TERRORISM LEGISLATION: HUMAN RIGHTS vs. PEACE AND SECURITY. MALAYSIA AS A CASE STUDY. Behnam Rastegari 1 Dr. Rohaida Nordin 2 ABSTRACT

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1 International Seminar and Workshop on Terrorism, Terrorism Redefining, Preventing and Combating 1 COUNTER-TERRORISM LEGISLATION: HUMAN RIGHTS vs. PEACE AND SECURITY. MALAYSIA AS A CASE STUDY Behnam Rastegari 1 Dr. Rohaida Nordin 2 ABSTRACT One decade has been spent by nation states on the war against terrorism. However, terrorist activities are still remained, amount of civilian casualties have increased and human rights violated frequently under the pretext of security. The international human rights frame work has been sacrificed by waging the war on terrorism; the war which recognize by its open ended and unknown battlefield. The balance between liberty and security has challenged, when the war is waged. This war does not observe human rights and humanitarian law rules, which obtained by great efforts during decades. On one hand, this article will investigate on violations of international human rights law by counter-terrorism measures as pre-emptive actions against civil liberties. On the other hand, it will illuminate the right of peace and security as basic need of society and essential responsibility of governments. How to make balance between security and human rights? How to increase safety of societies and human rights simultaneously? What are the boundaries of counter-terrorism measures to protect human rights law? These are the questions, which answers will be briefly assessed. Finally in this article the Malaysian perspective and its response to war on terrorism will also be assessed as a case study. Keywords: terrorism, human rights, peace and security, civil liberty. 1 PhD Candidate of Public International Law, Faculty of Law, University Kebangsaan Malaysia (UKM). 2 Senior Lecturer at the Faculty of Law, University Kebangsaan Malaysia (UKM). This article is part of the research grant: UKM-UU-05-FRGS

2 2 1. INTRODUCTION The 9/11 attacks 3 created serious shifts in the concept of counter-terrorism. Aftermath of attacks, enforcement response of terrorism changed to security response. In this circumstance, as counter-measures to these attacks states governments of worldwide have enacted new legislations, which undermined the international human rights framework. As an immediate response in the United States of America, the USA Patriot Act 2001 was enacted with expanded definition of terrorism that includes domestic terrorism, 4 and extended authority of property searching in investigations. 5 In Canada broad definition of terrorism was accepted by the Bill C Also in the United Kingdom, the Anti- Terrorism Crime and Security Act 2001, included of new counter-measures, 7 which replaced with the Prevention of Terrorist Act These types of reaction against terrorism generated a large number of critics by human rights committees and activists. 9 In March 2007, Malaysia made amendments to five different laws: namely, the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA), the Penal Code, 10 the Subordinate Courts Act, the Courts of Judicature Act, and the Criminal Procedure Code. These amendments among other things, impose penalties for terrorist acts, allow for the forfeiture of terrorist-related assets, and allow for the prosecution of individuals who have provided material support for terrorists. As part of the amendments to a number of laws mentioned above, Malaysia introduced several new measures for the freezing of terrorist-related property, including a requirement that provides for the full implementation of the United Nations (UN) Security Council Resolution (UNSCR) 1267 and UN SR 1373, both of which call for the freezing of terrorist assets. AMLATFA criminalises money laundering and provides for actions that deters and detects money laundering. It also provides for freeze, seize and forfeiture of proceeds derived from money laundering activities. 3 In September 11, 2001, four commercial airliners hijacked by 19 Al-Qaeda terrorists. Two of airliners hit the World Trade Center Twin Towers in New York. After one hour another plane crashed into a part of the Pentagon building in Washington, D.C, and the last airliner crashed into a field in Pennsylvania. Nearly 3000 civilians died in these terrorist attacks. 4 Title VIII, Section 802, USA Patriot Act. 5 Title II, Sections 213 and 219, USA Patriot Act. 6 Section (1). Bill C Section 4 (21)-(32). Anti-Terrorism Crime and Security Act. 8 Section 16(2)-(4). Prevention of Terrorist Act. 9 See: The Report on the Anti-Terrorism, Crime and Security Bill, Second Report of the Parliament Joint Committee on Human Rights (2001), accessible at: statewathch.org /news/2003/dec/ act Rep o rt.pdf(18 June 2011). 10 Amendment to Section 130 B (2) Penal Code on definition of terrorist act.

3 3 Despite of international attempts to reach a common definition of terrorism such as twelve universal and eight regional conventions on terrorism, 11 there is no comprehensive definition, which have been ratified and accepted by the majority of states. The presented definitions of each State are the outcome of social, political and economic facts and tendencies of that State. For example Russian Criminal code definition does not specifically addresses the issue and may be a rather recent phenomenon in some countries while the Italian anti-terrorist legislation was only extended to international terrorism after the 9/11 attacks. The same holds true in Spain. 12 The term war on terrorism which was first used by former U.S. President George W. Bush and U.S. officials, generates fundamental legal issues and challenges. The United States obtains its legitimacy of waging war against terrorism by referring to self-defence doctrine, that stated in the Article 51 of the United Nations Charter, 13 but the phrase of armed attack occurs of the Charter is still controversial in regarding to the 9/11 attacks. War on terrorism consists of wide range of military and policy measures and each measure is subjected of separate special legal approach. Human rights law as the applicable law in peace times and humanitarian law as law of the armed conflicts are facing with serious violations during counter-terrorism process. As Paul Hoffman stated the war on terrorism undermines our security more than any terrorist bombing by challenging the framework of international human rights and humanitarian law. 14 Aftermath of 9/11 attacks governments of some States as counter-terrorism judicial reactions have also created special military courts with limited guarantees for suspected persons. 15 These courts are not complying with the universal instruments of 11 See: International Convention for the Suppression of Terrorist Bombing (adopted 15 December 1997, entered into force 23 May 2001, International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999, entered into force 10 April 2002), and International Convention for Suppression of Act of Nuclear Terrorism (adopted 13 April 2005, entered into force 7 July 2007). 12 Christian Walter et al, (eds), Terrorism as a Challenge for National and International Law: Security Versus Liberty, Springer, Germany, 2004, pp Article 51, United Nations Charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. 14 Paul Hoffman, Human Rights and Terrorism (2004) 26 (4) Human Rights Quarterly, p See: Detlev F. Vagts, Which Court Should Try Persons Accused of Terrorism? (2003) 14 (2), European Journal of International Law.

4 4 human rights. 16 For instance the United States established Military Tribunals based on the Military Order of November 13, This article presents violations of fundamental human rights, which have been violated during the war on terrorism such as the right to life, privacy, liberty, human dignity, fair trial as basic civil rights and other which is related to refugees and asylum seekers as the rights derived from international legal principles. 18 Also it illustrates the prohibition of arbitrary and prolonged detention, torture of suspects and seizure of property that has been used widely in the name of security. This paper also attempts to shows the necessary of keeping balance between ensuring security by states, and protecting of fundamental liberties base on international human rights law framework. 2. COUNTER-TERRORISM MEASURES AND VIOLATION OF HUMAN RIGHTS According to Gerard Stoudmann, after 11 September more respect for human rights and the rule of law is needed, not less. It has often been said that the fight against terrorism is not about a clash of cultures, but about the clash of different values. We must not allow the erosion of the principle of the universally of human rights, which forms the core of our value system and the foundation of our legitimacy when fighting terrorism. Allowing this to happen would be a mistake of historic dimension according to Gerard. 19 A number of States in recent year adopted some measures as counter-terrorism activities to combat terrorism inside their countries. Logically these measures must act as protective factors for humanity while, they posed serious challenges for human rights framework. There is no doubt that terrorism by creating brutal massacre, disseminating threatens and disruption public order in society imposed direct impact on enjoyment of human rights such as the right to life, physical integrity, and liberty, but governments are responsible to protect of individuals so it shall not act as the main cause of violation of human rights standards. 16 Article 14, Universal Declaration on Political and Civil Rights. See also: Para 4, OHCHR (Office of the High Commissioner for Human Rights), General Comments, No Section 1, Military Order of November 13, These rights clearly stated in the Charter of United Nation, International Declaration of Human Rights and International Covenant on Civil and Political Rights. 19 Gerard Stoudmann, Finding a Balance between Ensuring Security and Protecting Human Rights in the Fight against Terrorism (2002) 13, Helsinki Monitor, p 284.

5 5 2.1 The Right to Privacy To identifying terrorists and preventing their attacks in enforcement response to terrorism actions in counter-terrorism process, law enforcement officers have the right of interference to privacy, which mainly are immune against any aggression. As the international legal framework the right to privacy has emphasized by the International Covenant on Civil and Political Rights, 20 European Convention on Human Right, 21 and the American Convention on Human Rights. 22 This right consists of prohibition of illegal interferences, house searches, body searches, 23 wire-tapping, telephone recording, surveillance of correspondence, 24 interceptions of telephonic, telegraphic and other forms of communications, 25 and collection and dissemination of individual and private information. 26 After 9/11 in United States these rights restricted by the U.S.A Patriot Act. This Act amended and updated some other Acts inside the country in relation to terrorism such as Federal Criminal Code, 27 the Money Laundering Act, 28 the Immigration and Nationality Act, 29 and the Electronic Communication Privacy Act. 30 In Malaysia, efforts were undertaken to amend the relevant legislations to extend its scope of application to provide more powers to the relevant authorities. These include, intercepting communications and catering to more offences, such as the extension of the scope of property for possible forfeiture to include property involved in, or derived from, money laundering, terrorism financing, terrorist property, property of a liable person, proceeds of an unlawful activity and instrument of an offence Article Article Article Para 1, OHCHR (Office of the High Commissioner for Human Rights), General Comments, No. 16, 4 August1988: The Right to Respect of Privacy, Family, Home and Correspondence and Protection of Honor and Reputation. 24 Ibid., Paras See also: Klass v. Germany [6 September 1978] European Court of Human rights (Klass v. Germany Case). 25 Ibid., See also: Malone v.uk, [2 August 1984] European Court of Human rights (Malone v.uk Case). 26 Ibid., Paras Title VIII, Section , USA Patriot Act. 28 Title III (A), Section , USA Patriot Act. 29 Title VI (B), Section , USA Patriot Act. 30 Title II, Section , USA Patriot Act. 31 Star Malaysia to clamp Down on Terrorist Funding, Money Laundering: AG 20 July 2010 accessible at: (20/6/2011) and Star 3-years Government Plan to Combat Terrorism Financing 22 July 2010 accessible at: (21/5/2011).

6 6 Noteworthy should be noted that the right to privacy is not an absolute right and would be restricted in some special circumstances for example, in the cases of emergency The Right to Liberty and Security All human beings have the right to security and governments are responsible to respect and ensure it. Terrorist acts are caused of many loss lives. Acts of terrorists with their destructive nature are serious threat for the security of innocent peoples. This right have protected with the framework of human rights to addressing and reminding human rights law during fighting terrorism process by governmental and non-governmental enforcement officers. The right to liberty and security, which includes of prohibition of detention has emphasized in the Universal Declaration of Human Rights, 33 Covenant on Civil and Political Rights. 34 and the International It should be noted that this right can be suspended in some situations such as public emergency that threatens the life of the nation. 35 In Malaysia, arrest and detention of a person for alleged terrorism activities is done under the Internal Security Act. The most recent arrest involves a 63 years old trader who was detained on suspicion of being involved in Jemaah Islamiah (JI) activities. 36 He was alleged of providing religious teachings to youths and the young adults as well as recruiting them into the organization. At the same time two Malaysian were arrested in Southern Philippine and detained for alleged involvement in terrorist activities. 37 As has been shown by Sabine von Schorlemer, derogations from human rights obligations are permissible. International human rights law contains mechanisms such as States have to notify other States parties through the Secretary General of the existence of 32 Article 4 (1), International Covenant on Civil and Political Rights: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 33 Article Article See: James Becket, Greek Case before the European Human Rights Commission, ( ) 1, Human Rights. 36 Daniel Steven and Austin Cameons, Trader Held under ISA for Alleged Terror Activities, Star, 8 June Malaysia has a Federal Police Special Task Force (Operations and Counter Terrorism), director of which is Datuk Mohamad Fuzi Harun.

7 7 an emergency. Measures taken may not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin, but must be of an exceptional and temporary nature, which are limited to the extent strictly required by the exigencies of the situation. 38 Observance of necessity, proportionality and non-discrimination are essential as the main conditions of derogation. 39 Freedom from torture and cruel, inhuman, degrading treatment or punishment and the right of a fair trial are other important rights, which have to be respected during a state of emergency. These rights also have identified by regional human rights law for example in decisions of the Inter- American Court of Human Rights The Right to Fair Trial Right to fair trial is basic indication of respect to the rule of law in civil or criminal cases. This is one of the fundamental rights, which approved by international human rights law as universal instrument. The Universal Declaration of Human Rights, 41 and the International Covenant on Civil and Political Rights consist of detailed lists of judicial guarantees. 42 European Convention on Human Rights, 43 American Convention on Human Rights, 44 Arab Charter on Human Rights, 45 and African Charter on Human and Peoples Rights as regional conventions have guaranteed this important right by their contents. 46 Principle of legality, 47 equality before the court, 48 right to presumption of innocence, Sabine von Schorlemer, Human Rights: Substantive and Institutional Implications of the War Against Terrorism (2003) 14 (2) European Journal of International law, pp See: Par IV (33), Alvaro Gil-Robles, Council of Europe Commissioner for Human Rights, Opinion on certain aspects of The United Kingdom 2001, derogation from Article 5 par.1 of the European Convention on Human Rights. 28 August 2002 accessible at: /t/commissioner /WCD/search Opinions_en.asp (28 May 2011). 40 Suarez Rosero v. Ecuador[November 12,1997], paras 43-47, p 16 (Suarez Rozero Case) accessible at: (29 May 2011). 41 Article Articles Articles Articles Article Article Article 14. International Covenant on Civil and Political Rights (Adopted 19 December 1966, entered into force 23 March 1967). See also: Castillo Petruzzi et al [30 May 1999], para 121, Inter-American Court of Human Rights (Castillo Petruzzi Case) accessible at: (29 May 2011). 48 Ibid.,Article 14 (1).

8 8 right to call witness, 50 right to have legal assistance, 51 right to access to evidence and documents, 52 right to appeal, 53 all are basic rights that have to be identified and observed during a fair trial. In Malaysia, arrest and detention of a person for alleged terrorist activities, which is done under the Internal Security Act does not guarantee all these basic rights. Ideally, governments have to protect these rights under international law base on respect to individual rights. These rights are ground rules and basic standards that human rights law afforded by decades efforts, therefore they have to be preferable and supported by governments and courts during a judicial process. Establishing and expanding the jurisdiction of the Military Tribunals with their special procedures to the trial of terrorists as a judicial counter-terrorism measure, is inconsistent with judicial standards and increase the risk of violation against human rights The Rights of Refugees Most of the anti-terrorism states legislations after 9/11 attacks seriously undermined the rights of refugees and asylum seekers. Since 2001, policies adopted by European countries to bar admission of terrorists have also affected the admission of bona fide refugees and asylum seekers. European policymakers viewed asylum as a liability in the fight against international terrorism, and believed that more safeguards were needed to prevent the use of international refugee protection as a safe haven by those who had committed terrorist acts elsewhere. 55 Measures taken by government consists of certain factors, includes some risks that undermine human rights framework as a protective norm for refugees and asylum 49 Ibid., Article 14 (2). See also: Heaney and Mc Guinnness v. Ireland [21 December 2000] para 50, European Court of Human Rights (Heaney and Mc Guinnness v. Ireland Case) accessible at: (30 May 2011). 50 Ibid., Article 14 (3) (e). See also: Article 22, Statute of the International Tribunal for the Former Yugoslavia on Protection of Victims and Witnesses, 25 May Ibid., Article 14(3) (d). See also: Amnesty International Report, Guantanamo: Human Rights are not Negotiable, 26 November 2003, accessible at: (30 May 2011). 52 Ibid., Article 14 (3) (b). See also: Principle IX, Council of Europe Committee of Ministers Guideline on Human Rights and Fight against Terrorism. 53 Ibid., Article 14(5). 11 July See also: Section 412(b) (1), Habeas Corpus and Judicial Review, USA Patriot Act Military Order President George W. Bush to trial who committed terrorist crimes on 13 November 13, Andrew I. Schoenholtz, Jeniffer Hojaiban, International Migration and Anti-terrorism Law and Policies: Balance Security and Refugees Protection (2008), Georgetown Immigration Law Journal, p 6.

9 9 seekers, such as giving the power of arrest without warrant or refuse and return asylums to their countries, where they have the risk of imprisonment and torture. Such measures not only undermine human rights standards, but being considered as a serious risk for refugees and asylum seekers life. Therefore states have to matching their measures in conformity with international human rights law. For example as Cephas Lumina noted the amendment to the U.S. Immigration and Nationality Act grants permanent authority to the government to admit, in a temporary non-immigration status, aliens who passes or will supply to law enforcement agencies critical information concerning criminal or terrorist organisations. 56 As the international refugees law and its legal framework, the 1951 Convention relating to the Status of Refugees, 57 its Protocol 1967 relating to the Status of Refugees, 58 and Resolution 2198 (XXI) adopted by the United Nations General Assembly, 59 are the main international legal instruments for the international refugee law. In regard with the terrorism and refugees law the Security Council Resolution 1373 determined some counter measures to prevent terrorist activities that should be taken by the Member States. 60 For instance the Member States have to prevent the movement of terrorists by effective border controls, 61 and they have to ensure that will not granting refugees status to asylum seekers, who participated in terrorist commissions. 62 As mentioned by the High Commissioner for Human Rights, 63 with regard to refugee status and asylum, the resolution did not introduce new obligations into international refugee law. The 1951 Convention already has provisions to ensure that international refugee protection is not extended to those who have induced, facilitated or perpetrated terrorist acts Cephas Lumina, Counter-terrorism Legislation and the Protection of Human Rights: A Survey of Selected International Practice, (2007)7(1) African Human Rights Law Journal, p Convention relating to Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954). 58 Protocol relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967). 59 Adopted by United Nations General Assembly on 16 December Adopted by United Nations Security Council on 28 September Para 2 (g), Security Council Resolution Para 3 (f), Security Council Resolution UN Office of the High Commissioner for Human Rights, Fact Sheet No. 32, Human Rights, Terrorism and Counter-terrorism, July 2008, accessible at: /refworld/docid /487 33ebc.html (1 June 2011). 64 Ibid., p 16.

10 10 3. BALANCE BETWEEN PEACE AND SECURITY Terrorism represents a serious threat to society and stability, freedom and democracy. There is no doubt States need to address the terrorist threats with variety of new methods in order to eradication of terrorism and protection of their citizens from security threat. A balance must therefore be found, ensuring that there is no backtracking on establishes fundamental values, and that the rule of law and civil rights do not become victims of friendly fire. 65 Providing security and ensuring liberty are main duties of governments toward their peoples. Balance between peace and security creates some legal questions and forced new concepts to relations of governments and their citizens in regard to liberties and security limitations. Enacting new counter-terrorism legislations by States after 9/11 attacks on one hand legitimated new methods toward increasing security of society, and on the other hand, challenged the international human rights law framework. It is a serious dilemma for States in their clear obligation and duty to protect the safety and well-being of their citizens, and they must protect of the rule of law, fundamental rights and genuine democratic orders. A balance between these two interests is often difficult to achieve. From a legal point of view, this situation can create significant challenges. The State must ensure action that is reasonable in order to fulfil its duties, but it should prevent of creating a system of governance that the staffs under the cover of combating terrorism braking down the pillars of a democratic society. 66 Balance between protection of security and respect for human rights is to favour of security with pretext of safety measures and domestic legal cover. Respect for the human rights norms is basic solution for conflict resolution in regard with the inconsistency between society security and liberties. It is incorrect judgment that any increasing in civil liberties may be enlarging the risk of terrorist attacks in societies, but in fact preference of security measures than fundamental liberties, which have been supported by international human rights instruments, compose insecurity atmosphere in society that is suitable for any terrorist activities. It is clear that protect of the individual rights against security is a result of good 65 Gerard Stoudmann, Finding a Balance Between Ensuring Security and Protecting Human Rights in the Fight Against Terrorism, pp Bernard Bekink, A Dilemma of the Twenty-first Century State: Questions on the Balance Between Democracy and Security (2005)5, African Human Rights Law Journal, pp

11 11 government that is completely consistent with international human rights law; therefore necessity of balance is vital. Christopher Michaelsen has noted that, a number of discussions on counterterrorism law and policy has frequently revolved around the idea that a balance must be struck between civil liberties and the interest of national security, but for four reasons this idea has been problematic. Firstly, two goods cannot logically be balanced against each other. Secondly, there are major right-base objection to a simple balancing exercise. Thirdly, to symbolic gains and psychological comfort, diminution civil liberties and enhances security or weather one is trading-off, is necessary. In conclusion, it is imperative to avoid simple balance rhetoric, when developing, formulating and implementing legal measures to counter the threat of international terrorism CONCLUSION Terrorists by using new methods can extend their territories and act as a grave threaten for States security anywhere in the globe. Innocent civilians are their targets and disturbing the public order is their aim. Governments response to terrorist attacks have to be based on the respect of the fundamental human rights obligations, which widely emphasised in international law instruments, such as respect to the right to privacy and right to fair trial and observe the refugees rights during the counter-terrorism process and etc. Respect and widespread use of human right law is the best response to terrorists, who are seeking to expand insecurity into society to reach their ominous purposes. Restore balance between ensuring security and maintaining peace is the most important elements, which has essential role to prevent of undermining the international human rights law. 67 Christopher Michaelsen, Balancing Civil Liberties against National Security: A Critique of Counterterrorism Rhetoric (2006) 29 (1) University of New South Wales Law Journal, p 21.

12 12 REFRENCES Bekink Bernard A Dilemma of the Twenty-first Century State: Questions on the Balance Between Democracy and Security. African Human Rights Law Journal. 5. Hoffman Paul Human Rights and Terrorism. Human Rights Quarterly. 26 (4). Lumina Cephas Counter-terrorism Legislation and the Protection of Human Rights: A Survey of Selected International Practice. African Human Rights Law Journal. 7(1). Michaelsen Christopher Balancing Civil Liberties against National Security: A Critique of Counterterrorism Rhetoric. University of New South Wales Law Journal. 29 (1). Stoudmann Gerard Finding a Balance between Ensuring Security and Protecting Human Rights in the Fight against Terrorism. Helsinki Monitor. 13. Schoenholtz Andrew, Jeniffer Hojaiban International Migration and Anti-terrorism Law and Policies: Balance Security and Refugees Protection. Georgetown Immigration Law Journal. Steven Daniel, Austin Cameons Trader Held under ISA for Alleged Terror Activities. Star, 8 June. Von Schorlemer Sabine Human Rights: Substantive and Institutional Implications of the War Against Terrorism. European Journal of International law. 14 (2). Walter Christian, Silja Voneky, Volker Roben, Frank Schorkopft (eds) Terrorism as a Challenge for National and International Law: Security Versus Liberty. Germany Springer. Malaysia to clamp Down on Terrorist Funding, Money Laundering: AG Star. 20 July. 3-years Government Plan to Combat Terrorism Financing Star. 22 July.