It is now more than two years since the September 11, 2001 terrorist strikes on the World Trade Center. Since then, there have been many more such attacks — the bomb blasts in Bali on October 12, 2002; the hostage drama in Moscow on October 23, 2002; the attempted missile attack on an airliner leaving Mombassa, on November 28, 2002; and the bomb attack in Bogota, Colombia on February 7, 2003, to name a few.
While states have every right to take measures to eliminate terrorism and to bring the perpetrators to justice, most post-9/11 counter-terrorism measures have been taken without any respect for the due process of law. In the name of a war against terror, state terrorism is being unleashed everywhere. Adding to the complexity is the failure to resolve the aphorism — one man’s terrorist is another man’s freedom-fighter.
The complexities are reflected in the United Nation’s failure to reach a commonly-agreed upon definition of terrorism despite 12 international conventions on the subject. Tasked with drafting a comprehensive treaty against terrorism, the general assembly is grappling with the issue.
Since September 11, 2001, a large number of countries have adopted opportunist anti-terror laws. India rammed through the Prevention of Terrorism Act in an extraordinary joint session of Parliament. A year later, the highest number of detainees under POTA are not from Jammu and Kashmir, the Indian state most affected by terrorism, but Jharkhand, where the detainees under the law range from 12 to 81 years.
China too has amended its criminal procedure code. Even Tonga, a tiny kingdom in the Pacific, has amended its criminal offences act to define terrorism as “an act which is intended or can reasonably be regarded as having been intended to seriously destabilize or destroy the fundamental, political, constitutional, economic or social structures of a country.” This amendment may have more to do with stifling the pro-democracy movement than confronting terrorism in Tonga.
Many features of these anti-terror laws do not meet international human rights standards. These laws empower the state to detain the accused for periods far longer than that permitted under the normal criminal procedure code. They also subvert the cardinal principle of the criminal justice system — presumption of innocence — by putting the burden of proof on the accused, withholding the identity of witnesses, making confessions to the police admissible as evidence, and giving the public prosecutor the power to veto bail.
In America, the exact legal basis for detention and the legal status of detainees — whether “enemy combatants”, quasi “prisoners of war”, “war criminals” or “terrorists” — are often not specified. For example, the detainees at the Guantanamo Bay facility have not been formally charged and are being tried by military courts.
Sadly, the few voices of opposition to such repressive measures have been stifled. The former UN high commissioner for human rights, Mary Robinson, was refused another term by the George W. Bush regime, which was angry with her for asking for a halt to the bombing in Afghanistan so that humanitarian aid could reach the civilians, for calling for an inquiry into the massacre of taliban soldiers in Mazar-e-Sharif, for criticizing the treatment of al Qaida prisoners in Guantanamo Bay, and for expressing concern at the discrimination of Arabs and Muslims in Western countries.
There is little evidence to suggest that such stringent counter-terrorism measures can prevent terrorist attacks. There is no substitute to intelligence gathering. Political statesmanship is also a crucial weapon to address the root causes of terrorism.
But there is no doubt that this short-circuiting of justice has fostered terrorism. It is also blurring the distinction between those who are contemptuous of the law and those who preach the values of democracy, rule of law and due process of law.