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mitted in circumstances of the kind attracting the above-mentioned special
exception.35
Saudi Arabia’s response was to deny that there was such a thing as an
exception, since struggles against foreign occupation and aggression are in
accordance with the principles of international law as reaffirmed by the
United Nations, and ‘inasmuch as what is involved is the right of peoples to
engage in armed struggle for self-determination’.36 Joe Stork critically
observes in this regard that without any conditioning language on the frame-
work of international humanitarian law, the affirmation of ‘any means of
armed struggle . . . politically represents merely a mirror image of the Israeli
contention that all forms of militant struggle, and certainly armed struggle,
are indistinguishable from terrorism’.37
The Convention then proceeds to the concept of political offences, which
would clearly be excluded from the provisions on extradition and rogatory
procedures with which much of the remainder of the text deals. Anything
already defined as a ‘terrorist offence’ is not to be considered a political
offence, along with a list of other specific offences which are also not to be
so considered ‘even if they are politically motivated’ (Article 2(b)). Offences
excluded from the ‘political offence exception’ for purposes of extradition
include ‘attacks’ on the kings and heads of Contracting States, their rulers,
wives (sic), ascendants or descendants, crown princes, deputy heads of state
or government ministers, and persons enjoying ‘international protection’
including ambassadors and diplomats (Article 2(b) i, ii, iii). Also excluded
are ‘intentional murder and theft accompanied by force against individuals,
or the authorities, or means of transport and communications’; ‘acts of
sabotage and destruction of public property assigned to a public service,
even if owned by another Contracting State’, and offences related to weapons,
munitions or explosives or other items ‘that may be used to commit terrorist
offences’. In the first three clauses, the word used for ‘attack’ (ta`adda`ala) is
unqualified; that is, it is not necessarily restricted to physical attacks, or
attacks on the lives or liberty of such persons. Some Contracting States
have legislation criminalizing the ‘defamation’ or lampooning or otherwise
‘undermining’ of their leaders.
There is much to comment on in the remainder of the text, including
particular concerns over the lack of guarantees of fair trial or rights of
detainees, extended surveillance authorities threatening the right to privacy,
and an absence of reference to international law standards on any of these or


35 36
UN Doc S/2003/583 (Third report of Saudi Arabia to the CTC) 13. Ibid.
37
Stork, ‘Human Rights Crisis’, 49.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 591

other issues.38 Despite the urging by Arab states that an international defini-
tion of torture include a definition of state terrorism, the Arab Convention
includes no such text, and fails to clarify that state officials or other agents of
the state are capable of committing the crimes defined therein as ‘terrorist
offences’.39 Some state parties however provide in their domestic legislation
for increased penalties if terrorist offences are committed by agents of the
state, notably members of the police or armed forces. The focus of such
provisions appears to be hostile activities against the state by such individuals
or groups, rather than state accountability for actions of its agents as ‘state
terrorism’.

IV. State responses
A. Egypt
The definition of terrorism in the Arab Convention is taken almost word for
word from pre-existing (1992) Egyptian legislation.40 Egypt tends to play a
leading role in matters legislative in the region, and politically is one of the
‘big three’ (along with Saudi Arabia and Syria) in the Arab League. Egypt has
officially been in a state of emergency since 1981, when President Anwar
Sadat was assassinated, and has since suffered other attacks by domestic
armed groups. Concern at ‘the effects on the human rights situation’ caused
by this prolonged state of emergency and various ‘security’ measures asso-
ciated therewith has been voiced by the UN Human Rights Committee.41 The
Committee had similar concerns when the Egyptian government legislated
Law no. 97 of 1992 in direct response to ‘the emergence of the phenomenon
of terrorism’.42 It declared:
The definition of terrorism contained in that law is so broad that it
encompasses a wide range of acts of differing gravity. The Committee is
of the opinion that the definition in question should be reviewed by the
Egyptian authorities and stated more precisely especially in view of the fact
that it enlarges the number of offences which are punishable with the death
penalty.43

38
See above note 32.
39
Amr Mousa, Secretary-General of the League of Arab States, told the Cairo meeting on
terrorism and human rights that the UN should draft a convention ‘including a definite
definition of terrorism that discerns between terrorism and peoples’ legitimate right to
combat occupation and aggression and a definition of state terrorism’ (in Kjok, Terrorism
and Human Rights, 23). See also Amnesty International, above note 32, 16.
40
UN Doc S/2001/1237 of 29 May 2002 (Egypt’s first report to the CTC) 13.
41
CCPR/10/76/EGY 2002, para 16. See also UN Doc CCPR/C/79/Add.23 of 9 August 1993
paras. 7, 9.
42
UN Doc S/2001/1237 of 29 May 2002, 3.
43
UN Doc. CCPR/C/79/Add.23 9 August 1992, para. 8.
LYNN WELCHMAN
592

Law no. 97 of 1992 introduced amendments to a number of laws.44 It
introduced the following definition of ‘terrorism’ as Article 86 of the
Egyptian Penal Code:
In application of the provisions of this law, terrorism shall mean any use of
force or violence or threat or intimidation resorted to by the perpetrator in
implementation of an individual or collective criminal undertaking aimed
at disturbing45 public order or jeopardizing the safety and security of
society, which is of such nature as to harm persons or sow fear among
them or imperil their lives, liberty or security; or [of such a nature as] to
damage the environment, or to damage, occupy or take over communica-
tions, transport, property, buildings or public or private realty (amlak); or
to prevent or impede the exercise of their functions by public authorities or
places of worship or institutions of learning; or to thwart the application of
the Constitution or the laws or regulations.
The similarities with the definition adopted by the Arab Convention are evident,
but certain revisions were made. In the Arab Convention, causing fear or terror
to persons is not an element of the definition, but in Egypt, the aim of violating
public order or endangering public safety and security is. The first of these,
violation of public order, is extremely wide. In contrast to the Convention, in the
Egyptian text, a ‘threat’ is not necessarily of use of force or violence. The list of
possible prohibited acts is similar but rather longer and considerably wider, in
particular the final two clauses which are absent from the Arab Convention. The
definition of terrorism cited in Egypt’s first report to the CTC is a summary of
the relevant article rather than the full text.46
Law no. 97 of 1992 sets out a series of offences as ordinary crimes, with
increased penalties (including the death penalty and hard labour for life) if
‘terrorism’ is among the means used. For example:
The penalty shall be prison for whosoever establishes, founds, organizes or
directs, in violation of the law, an association or body or organization or
group or gang the purpose of which is to call (da` wa) by any means for
thwarting the provisions of the Constitution or the laws or preventing one
of the government institutions or public authorities from exercising its
functions, or attacking the personal freedom of the citizen or other public
rights and freedoms guaranteed by the Constitution and the law, or injur-
ing national unity or social safety. The penalty shall be temporary hard
labour for whosoever, with knowledge of the purpose for which it calls,


44
Law no. 97 of 1992, Official Gazette No. 29 bis of 18 July 1992. The legislation amended by
the provisions of law no. 97 of 1992 included Penal Code and Code of Criminal Procedure,
Law no. 105 of 1980 Regarding the Establishment of State Security Courts, Law no. 205 of
1990 Regarding the Confidentiality of Bank Accounts, and Law no. 394 of 1954 Regarding
Weapons and Explosives.
45
Or ‘violating’: ikhlal bi. 46 UN Doc. S/2001/1237 3–4.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 593

holds any kind of leadership within it, or supplies it with material or
financial provisions.
The penalty shall be prison for a period of not more than five years for
whosoever, with knowledge of its purpose, joins one of the associations,
bodies, organizations, groups or gangs set out in the previous paragraph, or
participates in it in any manner.47
This article already renders illegal mere membership in associations that have no
necessary link with violence, let alone with terrorism, and may pose a consider-
able risk to freedom of expression and association. The following article (Article 86
bis (a)) stipulates that for offenders covered by the first paragraph of the previous
article, the penalty shall be death or hard labour for life ‘if terrorism is one of the
means used in the realization or implementation of the purposes called for’ by the
association. For offenders under the second paragraph of Article 86 bis, the penalty
in such circumstances becomes a sentence of hard labour if terrorism is among the
means used.48 There is further a prison sentence of up to ten years for anyone
disseminating the purposes of such associations in any way or possessing materials
for such dissemination, if terrorism is one of the means used by the association.49
The accusation of terrorism may be made on the basis of the extremely broad
terms of its definition.
Egypt has not amended these provisions following the promulgation of
SCR 1373 (2001), although it has introduced new legislation on money
laundering.50 Human rights concerns have included the violent suppression
of anti-war demonstrations in Cairo in the spring of 2002 and the arrest of
alleged ‘ringleaders’. In addition, Egypt’s past criticisms of other states for
refusing to hand over or curtail the activities of those it accuses of offences
against Egyptian security appear to be bearing fruit, giving rise in some cases
to fears for the safety of those extradited or returned to Cairo. In December
2001 two Egyptian asylum-seekers were forcibly repatriated by Sweden after
secret evidence was relied on to dismiss their asylum claims; they then
‘disappeared’ into the system for more than three weeks with no access to
family or counsel. Human Rights Watch reports other forcible repatriations
from Jordan, Canada, Bosnia and Uruguay.51

47
Article 86 bis of the Penal Code as amended by Article 2 of Law no. 97 of 1992.
48
Article 86 bis (a) as amended by Article 2 of Law no. 97 of 1992. Offenders under Article 86
bis are also liable to hard labour for membership in such an association if they are
members of the police or armed forces.
49
Article 86 bis para. 3 and Article 86 bis (a) para. 3 as amended by Article 2 of Law no. 97 of
1992.
50
Law to Combat Money Laundering, Law no. 80 of 2002 (Official Gazette no. 20 of 22 May
2002) and Law Amending Certain Provisions of the Law to Combat Money Laundering,
Law no. 78 of 2003. See Sherif Sayyid Kamil, Mukafihat jara’im ghasal al-amwal fi al-tashri`
al-misri, Cairo: Dar al-nahda al- ` arabiyya, 2002.
51
Stork, ‘Human Rights Crisis’, 46.
LYNN WELCHMAN
594

Egyptian human rights groups point out that they were among the first
to focus the attention of the international NGO community on political
violence by non-state actors.52 The country has a diverse and active non-
governmental human rights community, whose many activities, such as an
energetic campaign against torture, rarely receive coverage in the domestic
press. On the governmental side, and in line with recent ‘reform-minded’
moves in the region, the National Council for Human Rights has recently
been established, functioning since the beginning of 2004 under the leader-
ship of former UN Secretary-General Boutros Boutros Ghali. In what was
considered its first real challenge, at the beginning of May, some observers
saw a setback for the Council’s potential in the apparently last-minute refusal
by a majority of its members to endorse a memorandum prepared by its Legal
Committee requesting the government to end the long-standing state of
emergency.53


B. Syria
Syria is another state that has not found a need to amend its criminal
legislation in the wake of SCR 1373 (2001). For the US, Syria remains one
of ‘the seven designated state sponsors of terrorism’ because of its ‘political
and material support to Palestinian rejectionist groups’. Concerns that Syria
might be the next target of the ‘neo-cons’ for invasion and ‘regime change’
reduced somewhat by 2004, and Syria for its part made positive moves
to ensure it was not aligned with the ‘enemy’ in the ‘global war on terror.’
In its 2003 report, the US formally recognized Syrian cooperation ‘against
al-Qaida, the Taliban, and other terrorist organizations and individuals’54
before announcing the imposition of sanctions against the country a fort-
night later. Syria remains among the most tightly controlled of the Arab states
despite recent moves towards the opening of the public space to civil society
actors. Reports of discontent by Syrian Kurds in the north in March 2004,
followed in April by ‘mysterious gun battles’ in Damascus, made uncommon


52
Bahey el-din Hassan in Kjok, Terrorism and Human Rights, 13.
Al-Wafd, 6 May 2004, ‘Al-majlis al-qawmi li-huquq al-insan yataraji` taht al-dughut
53

al-hukumiyya.’ See further Arab Program for Human Rights Activists, Press Release of
25 May 2004, ‘Egypt: the National Council for Human Rights’.
54
Patterns of Global Terrorism 2003, 85. Other Arab states on the list are Libya (although
poised to be removed during 2004), Sudan, and Iraq. The list also includes Iran. The only
non-Middle Eastern states on the list are Cuba and North Korea. The reports notes (at 93)
that ‘Syrian officials have publicly condemned international terrorism but continue to
make a distinction between terrorism and what they consider to be the legitimate armed
resistance of Palestinians in the Occupied Territories and of Lebanese Hizballah. The
Syrian Government has not been implicated directly in an act of terrorism since 1986.’
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 595

news in the region.55 Like Jordan and Morocco, Syria has recently come
under new, comparatively young leadership with the accession of the former
President’s son, Bashar al-As` ad, to power, and his four-year-old programme
of economic and financial reform is emphasized by increasingly dynamic
Syrian inputs into international media.56 Human rights groups have recently
been allowed to form and operate, although still under considerable con-
straint.57 In 2001, the UN Human Rights Committee reiterated its concern
that a 1963 decree declaring a state of emergency remained in force.58
The Syrian Penal Code of 194959 was modelled on the Lebanese Penal
Code, which was in turn inspired by French criminal law. The Syrian code
contains three articles on ‘terrorism’ within the chapter on ‘crimes against
internal state security’. The following definition of terrorism in Article 304 is
almost unchanged since the original promulgation of the law:
Terrorist acts shall mean all deeds that aim at creating a state of panic (dhu` r)
and which are committed by means such as explosives, weapons of war,60
inflammable materials, poisonous or incendiary products or epidemic or
microbe agents of a nature to cause public danger.




55
Trouble between Kurdish and Arab supporters at a football match in Qamlish, and the
reported killing of some twenty persons by the security forces, were followed by clashes
between Kurds and the security forces in March 2004; Amnesty International cited reports
of hundreds of Syrian Kurds arrested.
56
For example in a glossy 14-page pull-out in the Lebanese Daily Star, which comes with the
International Herald Tribune in the region, entitled The Syrian Arab Republic:
Commemorative Feature Supplement Celebrating the 58th Anniversary of Independence
(3 May 2004) the front page led with ‘Facing a long list of international and regional
pressures, Syria’s reform efforts continue to take hold.’
57
Several Syrian human rights activists were arrested in the opening months of 2004,
including Aktham Nu`aisa, director of the Committee to Defend Democratic Freedom
and Human Rights in Syria. Nu` aisa was brought before the State Security Court charged,
apparently, with ‘carrying out activities that contradict with the socialist regime of the
state, opposing the goals of the revolution, and circulating false information damaging the
reputation of the state’. See also the Law on Opposition to the Goals of the Revolution,
Legislative Decree no. 6 1965.
58
UN Doc. CCPR/CO/71/SYR para. 6; see OHCHR Digest, 18–19. The Committee referred
to Legislative Decree no. 51 of 9 March 1963 declaring a state of emergency. In the article
from the Daily Star supplement of 3 May 2004 (above note 56), reference was made
to ‘domestic political problems, including protests to lift the Emergency Law’ as well as
the ‘Kurdish riots of March’. The article described the response to these problems as
‘restrained’.
59
Promulgated by legislative decree no. 148 on 22 June 1949 (Official Gazette no. 37 of
18 July 1949 p. 2025); with 15 laws amending it, the latest in 1979. Text annotated by
Mamduh ` Atari, Qanun al- uqubat: muaddalan wa madbutan; `ala’l-asl, Damascus:
`
`
Mu’assasat an-nuri 2003.
60
The phrase ‘weapons of war’ was added by Law no. 36 of 26 March 1978; `Atari 118.
LYNN WELCHMAN
596

The Syrian definition makes the creation of fear an element in the definition
of the offence, although it does not specify among whom. It does not specify
any further purpose, and although the means listed tend to a high degree of
potential danger and damage, they are not presented as exhaustive (‘means
such as’). Article 305 imposes a penalty of hard labour of between fifteen and
twenty years for ‘every terrorist act’ (not further defined) and of between ten
to twenty years of hard labour for conspiracy. The death penalty is mandated
if such an act ‘results in the destruction – even partial – of a public building,
industrial establishment, vessel or other installation or disruption of means of
information, communication or transport, or if it leads to the death of a
person’. The third of the three articles in the section on terrorism deals with
associations that are established ‘with the intention of changing the social or
economic character of the state or the basic mores of society by one of the
means set out in Article 304’. Such an association is to be dissolved and its
members sentenced to hard labour, with a minimum seven year sentence for
founders and directors. This description includes a political purpose missing
from the definition of terrorism. Membership in such an association is here,
as in Egypt, a punishable offence even if no specific terrorist act has been
planned, attempted or carried out.
In its second report to the CTC, Syria sets out legislation imposing ‘severe
penalties for all acts relating to terrorism’.61 The first provision it sets out is
Article 278, which comes in a section entitled ‘crimes affecting international
law’ and criminalizes the violation of arrangements made to maintain neu-
trality in a war, and punishes ‘the author of acts, writings, or speeches for
which the Government has not granted permission and which expose Syria to
the risk of acts of hostility or disturb its relations with a foreign state or
exposes Syrians to acts of revenge against their person or property’.62 In a
recent annotated copy of the Penal Code, this article is cross-referenced to
Article 65 of the General Publications Law 1949,63 which concerns the com-
munication or publication of false news or falsified documents and imposes a
criminal sentence of up to a year and/or a fine ‘if such act was ill-intentioned
or disquieted the public or disturbed international relations or undermined
the standing or dignity of the state’. This provision may be used to serious
effect in the constraint of political dissent and criticism of the government.

C. Jordan
In Jordan, an opportunistic expansion of government control was passed at
the same time as legislation responding to Security Council resolution 1373
(2001), only to be changed back again after negotiations between the

61
UN Doc. S/2002/1046 of 19 September 2002 3 (second report of Syria to the CTC).
62
The penalty is a prison sentence. 63 Law no. 53 of 8 October 1949; `Atari 2003 111.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 597

executive and key civil society actors. Many provisions of Jordan’s Penal
Code 196064 reproduce the Syrian text. This was the case in the three provi-
sions in the Jordanian code on terrorism until their amendment in 2001; the
only differences were that in its definition, Jordan had not followed Syria’s
amendment of its listed means of committing terrorism to include ‘weapons
of war’, while in the second article stipulating penalties the Jordanian text
substituted life hard labour for the death penalty in one case and a slightly
lighter prison sentence in another.65
In October 2001 Jordan’s government rushed out amendments to the
Penal Code by way of a royal decree issued in accordance with a decision of
cabinet, during an extended delay in convening Parliament that saw over a
hundred such ‘temporary laws’ issued.66 Temporary Law no. 54 of 200167
introduces a new definition of terrorism based on a combination of the Arab
Convention and its Egyptian model. The element of ‘causing panic’ is no
longer a necessary part of the definition of terrorism, and the ‘means’ listed in
the above-cited Syrian Article 304 as part of the definition are transformed in
the new Jordanian provision into aggravating factors at sentencing, giving
rise to the death penalty when an act of terrorism under the new definition is
committed.68 The new definition of terrorism in Article 147 is as follows:
Terrorism shall mean the use of violence or threat of use thereof, whatever
its motivations or purposes, occurring in implementation of an individual
or collective act aimed at disturbing public order or jeopardizing the safety
or security of society, where such is of a nature to spread fear among the
people and frighten them or to expose their lives and security to danger, or
to cause damage to the environment, or to cause damage to, occupy or take
over public facilities and realty or private realty, international facilities and
diplomatic missions, endangering national resources or thwarting the
provisions of the Constitution and laws.


64
Law no. 16 of 1960 as amended 1988, 1991, 2001, 2003; Official Gazette no. 1487 of 11 May
1960. This Code replaced an earlier Temporary Penal Code of 1951 (Temporary Law no.
85 of 1951, Official Gazette no. 1077 of 17 July 1951). On the choice made by the newly
independent and sovereign state of Jordan to follow French-based models from neigh-
bouring states rather than adopting the 1936 Criminal Code issued by the British in
Palestine (and which had therefore been in force in the Palestinian West Bank, incorpo-
rated into the territory of Jordan after the war), see E. T. Mogannam, ‘Developments in the
Legal System of Jordan’ 6 Middle East Journal (1952) 194–204, at 196.
65
Articles 147, 148, 149 of the Jordanian Penal Code 1960 before its amendment in 2001;
paralleling Articles 304, 305 and 306 of the Syrian Code.
66
Legislation issued in this manner is classified as ‘temporary’ and is supposed to be
submitted for parliamentary scrutiny and decision when parliament is reconvened.
67
Temporary Law no. 54 of 2001 amending the Penal Code, of 2 October 2001, Official
Gazette no. 4510 of 8 October 2001.
68
Article 148 (4)(c) of the Jordanian Penal Code as amended by article 3 of Temporary Law
no. 54 of 2001.
LYNN WELCHMAN
598

This definition adopts the broader Egyptian text in some respects (including
‘disturbing public order’), while staying closer to the Arab Convention
definition in others (including the threat being of the use of force).
Curiously, it omits the qualification of such acts as ‘criminal’.
Article 148 adds to the original text penalties of hard labour for life for
terrorist offences resulting, inter alia, in ‘damage, even partial, to a public or
private building’69 or ‘disabling means of communication and computer
systems, or disrupting their networks, or the total or partial disabling or
damaging of means of transport’. The death penalty is mandated where the
act leads to death or is committed using means (such as explosives) that were
previously included in the definition of terrorism.
The third of the three articles in the section on terrorism, Article 149, is
also amended to show key differences from the Syrian text:
A penalty of temporary hard labour shall be imposed on whosoever
embarks upon any act of a nature to destroy the system of political rule
in the Kingdom, or to incite to oppose it (munahida), and whosoever
embarks on any individual or collective act with the intention of changing
the economic or social character of the state or the basic mores of society.
The original wording of this provision was a word for word reproduction of
the Syrian text. The new Jordanian text no longer refers to associations but to
individual or collective acts, does not require that such acts be carried out by
means elsewhere identified with the definition of terrorism, and adds as new
the first half of the provision regarding the destruction of the system of
political rule or incitement to opposition thereto.70
In the same temporary law, Jordan changed a text punishing ‘every writing,
speech and act intended to or resulting in the provocation of sectarian or
racial chauvinism or urging discord between the sects and different elements
of the nation’ by a prison sentence of six months to three years plus a fine, to
the following:
Regardless of any other law, a prison sentence shall be imposed for any
writing, speech or any act broadcast by whatever means, or publication of
news in press or any publication, where such is of a nature to injure
national unity or to incite commission of crimes or spread rancour and
hatred and discord between individuals of the society or provoke racial or
sectarian chauvinism, or injure the dignity, personal freedoms and reputa-
tion of individuals, or shake the basic foundations of society by promoting
deviant behaviour or immorality or by publishing false information or

69
Thus adding ‘private’ buildings to the Syrian text which stipulated ‘public’ buildings in
Article 305 cited above.
70
Subsequent clauses deal with hostage taking and with infiltration to and from the territory
of the Kingdom. Article 147 (2) and (3) of the Penal Code 1960 as amended by article 4 of
Temporary Law no. 54 of 2001.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 599

rumours or incitement to agitation or vigils or the holding of public
meetings in a manner contravening the applicable law, or by any other
act liable to undermine the prestige, reputation or dignity of the state.
(Article 150).71
The second paragraph of this article as amended provided for the punishment of
the editor-in-chief and owner of any publication used in such an act, plus the
temporary or permanent closure of the newspaper or press ‘in accordance with a
decision of the court’. International human rights groups voiced concern at the
attack on the right to freedom of expression and of the press represented by the
extremely sweeping terms of this amended provision. In January 2002 the editor-
in-chief of a political weekly was described by Amnesty International as ‘the first
known victim of the amendment of Article 150’ when he was charged with
‘writing and publishing false information and rumours that may harm the
prestige and reputation of the state and slander the integrity and reputation of
its members’ after publishing a piece critical of the government.72 The Jordanian
Press Association and a number of newspaper editors and owners challenged the
constitutionality of the amended article but the High Court of Justice rejected the
suit for lack of interest of the petitioners;73 interventions and negotiations about
the role of the media and its regulation continued, with the Press Association
drafting its own ‘code of honour assuring objectivity and freedom of expression’
and the Prime Minister promising that the article would be repealed.74 In
another temporary law issued in June 2003, the text of Article 150 was changed
back to its original reading apart from an increase in the fine that could be
imposed.75
In its first report to the CTC, Jordan set out in some detail examples of
sentences passed by its State Security Court on persons convicted of

71
Article 150 of the Penal Code 1960 as amended by Article 5 of Temporary Law no. 54 of
2001.
72
The case of Fahd al-Rimawi, editor-in-chief of al-Majd weekly. See Amnesty International,
‘Security measures violate human rights’ AI Index MDE 16/001/2002 of 5 February 2002.
See also Stork, ‘Human Rights Crisis’, 43.
73
Jordan Times, ‘High Court rejects JPA lawsuit contesting Penal Code provisions’, 17 July
2002. See further AMAN News Center (the Arab Regional Resource Center on Violence
Against Women) http://www.amanjordan.org.
74
Jordan Times, ‘Government announces procedures to repeal Article 150’, 9 April 2003.
75
Temporary Law no. 45 of 2003 amending the Penal Code, Official Gazette no. 4600 of
1 June 2003. The potential prison sentence of between six months to three years remains
the same, while the fine rises from a maximum of 50 dinars in the original 1960 text to 500
in the new version. Another change made by Temporary Law no. 54 of 2001 however
remains: this is an amendment to article 195 of the Penal Code, which deals with insults to
the King; a new clause added to the list of offences that provoke a prison sentence of from
one to three years for ‘whosoever gossips about His Majesty the King or commits calumny
by attributing to him words or deed which the King did not say or do, or acting to
broadcast such or spread it among the people’.
LYNN WELCHMAN
600

terrorism-related offences, including the death penalty and life sentences with
frequent in absentia judgments.76 The State Security Court has been the focus
of criticisms from human rights groups since it was reintroduced in 1991.77
Already in August 2001 there had been an amendment (through a temporary
law) to the Law establishing the State Security Court expanding its jurisdic-
tion (for example to include ‘any other crime related to economic security
that the prime minister decides to transfer to the Court’).78 The amendment
also permits the police to detain a suspect for up to seven days before bringing
him or her before the Prosecutor, as compared to the twenty-four hours
permitted under the regular Code of Criminal Procedure.79 The Jordanian
Bar Association voiced particular objections to the removal of the right to
appeal for those convicted of ‘misdemeanours’ in the State Security Court.80
Jordan, rather like Morocco, emphasizes its positioning as a ‘moderate
middle course’.81 Along with the introduction of these amendments to the
Penal Code that potentially tighten the controls on political dissent, the
institutionalization of human rights mechanisms is underway. The discourse
of rights and reforms is prominent, and a well-known figure from the NGO
human rights movement, advocate Asma Khadr, has been appointed spokes-
person for the government. Significant changes to family law were also passed
in the absence of Parliament, as were amendments to the controversial penal
code provisions on ‘crimes of honour’, which had been the focus of advocacy
for many years by women’s groups and of attention by the international
media. Not all of these changes have survived reviews undertaken subse-
quently by the newly elected parliament.

D. Morocco
A few years into his reign, the new Moroccan king had dismissed certain key
elements of the ‘old guard’ and is considered to have been moving steadily if
somewhat slowly along the path of socio-economic and political reform.

76
UN Doc S/2002/127 of 29 January 2002 (first report of Jordan to the CTC) at 9–12.
77
The State Security Court was first established in 1952, replaced by military martial courts
from 1967–1990, and reintroduced (replacing the military martial court system) in 1991.
78
Article 3 (a) iii) of Temporary Law no. 44 of 2001 amending the Law establishing the State
Security Court, Official Gazette no. 4503 of 28 August 2001. An examination is made in a
‘Working Paper on Law no. 16 of 2001 amending the Code of Criminal Procedure no. 9 of
1961’ (Arabic text) by Advocate Abdel Ghaffar Freihat to a workshop of the Jordanian
Banks Association in Amman, 15 October 2001.
79
Article 7 of the Law establishing State Security Courts as amended by article 3 of Law
no. 44 of 2001; Freihat, ‘Working Paper’, 10.
80
The Bar Association took an ‘unprecedented decision’ to call on all its members to refrain
from appearing before the Court for a week in June 2002, to protest the 2001 amendments.
Saad Hattar, Jordan Times, 12 June 2002.
81
UN Doc S/2002/127 29 January 2002 (Jordan’s first report to the CTC) 3.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 601

The ‘public space’ had enlarged and at the end of 2003 a new personal status
code, heralded as broadly egalitarian, was issued with significant amend-
ments to more traditional positions maintained in its predecessor. An
Equity and Reconciliation Commission has been established to deal with
past ‘disappearances’ and other abuses, which although still limited goes
further than previous mechanisms. Nevertheless, human rights activists
working on Sahrawi issues remain vulnerable to arrest, and the editor of
the country’s only satirical news journal was sentenced after the Casablanca
bombings, although released by royal amnesty along with a number of
Sahrawi activists in January 2004.82 Observers comment that the ‘security-
minded administration’ still holds that ‘too much political liberalization is
dangerous’ and that their arguments were bolstered by the suicide bombings
in Casablanca in May 2003 and the alleged involvement of Moroccan
nationals in the Madrid bombings of 2004.83 These events have exacerbated
differences between the reform-minded and the ‘old guard’. The ‘security
crackdown’ began in 2002, and by November 2003 Amnesty International
was reporting a sharp rise in the number of reported cases of torture or ill-
treatment, with a rise in the number of political arrests being a ‘significant
factor’ in this development.84 Hundreds were arrested after the Casablanca
bombings, with associated reports of torture and ill-treatment and concerns
at unfair trials in which many were sentenced.
In its first report to the CTC Morocco noted that terrorist acts were already
criminalized by the Moroccon Penal Code, but that ‘the criminalization of
terrorism as such’ was being prepared. In May 2003 the Law on the Fight
Against Terrorism was published amending certain sections of the Criminal
Code 1962 and the Code of Criminal Procedure.85 It introduces a section on
‘Terrorism’ into the Criminal Code86 which provides a list of offences under
criminal law that:
shall be considered terrorist acts where they are intentionally related to an
individual or collective undertaking aimed at seriously prejudicing public
order by means of intimidation, terrorization (tarhib) or violence.87

82
Eileen Byrne, ‘Turning the page,’ 717 Middle East International 23 January 2004, 24–5.
83
Mark Huband, ‘Reforms offer a means of reducing high jobless rate,’ and Eileen Byrne,
‘Escaping from the Chains of History’, Financial Times, 16 April 2004.
84
Amnesty International, ‘Morocco/Western Sahara: Briefing to the Committee Against
Torture’, November 2003, AI Index MDE: 29/001/2003 of 11 November 2003.
85
Dhahir no. 1.03.140 issued on 28 May 2003 promulgating Law no. 03.03 concerning the
Fight against Terrorism (Mukafahat al-irhab), Official Gazette no. 5112 of 29 May 2003
Amending the Criminal Code 1962 (promulgated by Dahir no. 1.59.413 on 26 November
1962); and the Code of Criminal Procedure promulgated by Dhahir no. 1.02.255 on
3 October 2002, Official Gazette no. 5078 of 30 January 2003, 315.
86
Inserted into the Criminal Code as Article 218 (1)–(9).
87
Criminal Code article 218 bis (1) as amended by Law no. 03.03.
LYNN WELCHMAN
602

This definition includes purpose (prejudicing public order) and act (including a
level of severity in ‘seriously’), but not motivation. Thus, ‘terrorism as such’ is
defined through the commission of certain offences for certain purposes. The list
of offences attached to this definition includes inter alia intentional attacks on
the lives or security or freedoms of persons, counterfeiting, sabotage, diverting or
destroying planes, ships or other means of transport, forming a gang or making
an agreement in order to prepare for or to carry out a terrorist act, and knowingly
concealing gains made through a terrorist act. For such acts, where the penalty
under ordinary criminal law is life imprisonment, the death penalty is imposed;
life imprisonment is imposed where it would have been a maximum penalty of
thirty years in prison, and otherwise the maximum penalties under ordinary
criminal law are doubled so long as the final penalty does not exceed thirty years.
Prison of two to six years plus a fine is imposed for ‘anyone who commends acts
constituting terrorist crimes by means of speech, shouts or threats in public
places or meetings, or by means of writing, publications that are sold or
distributed or offered for sale or exposed in public places or meetings or by
means of placards exposed to public gaze by the various means of audio visual
and electronic media’.88 A prison sentence of ten to twenty years is provided for:
Whosoever intentionally provides someone committing a terrorist offence
or contributing or participating in such with arms or explosives or instru-
ments to implement the offence, or monetary assistance or means of
subsistence or communication or transport, or a place to meet or lodging
or concealment; and whosoever helps to dispose of the results of the
criminal act or knowingly gives any [other] kind of assistance.89
This provision clearly seeks to be all-inclusive of various possible acts of
complicity or concealment, and there is a clear emphasis on intention and
knowledge of purpose. If all that was provided was lodging or personal
subsistence, Law no.03.03 allows the court to pardon from the set penalty
‘relatives and in-laws of a person who committed or participated in or
contributed to a terrorist offence, up to the fourth degree’, and a similar
dispensation is permitted to such relatives for the offence of not revealing to
the relevant authorities knowledge that a person has of terrorist crimes.90
This specific allowance for exemption from an otherwise mandatory penalty
is also found in Tunisia, although there it applies only to the offence of failing
to inform the authorities.
Law 03.03 provides for searches and other investigative procedures to take
place outside the normal hours ‘in cases of necessity’ as well as the ordering of
phone intercepts, taping and other forms of surveillance where certain

88
Article 218 bis (2) of the Criminal Code as amended by Law no. 03.03.
89
Article 218 bis (6) of the Criminal Code as amended by Law no. 03.03.
90
Article 218 bis (8), providing for a penalty of five to ten years in prison.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 603

`
offences are suspected. Garde a vue (pre-arraignment) detention is allowed
for ninety-six hours, renewable twice for a similar period, with access to a
lawyer being delayed ‘where necessary’ for up to forty-eight hours from the
first renewal of the garde a vue.91 Since most allegations of torture and ill-
`
`
treatment relate to the period of garde a vue, this extension from the ordinary
maximum of eight days in cases affecting state security has given rise to
concern among human rights organizations. Even before the operation of
the new rules, there were in addition concerns over the alleged falsification of
`
the dates of arrest, a practice which illegally extends the period of garde a vue
during which the detainee is isolated from anyone but the detaining agents.
After the Casablanca bombings, among the hundreds arrested was a man
accused of being the coordinator of the attacks. Abdelhak Bentasir died in
custody, according to the authorities, of ‘pre-existing illnesses of the heart
and liver’ two days after being arrested and ‘before his questioning had been
completed’. Amnesty International reported his family as stating he had
been arrested five days earlier than acknowledged by the authorities and
had been in good health; the autopsy was not made public, nor was his family
enabled to appoint their own doctor to attend.92 Praising Morocco’s effective
cooperation in the ‘global war on terrorism’, the USA’s official update for
2003 reported that:
Days after the [Casablanca] attacks, the Moroccan legislature passed a law
that broadened the definition of terrorism . . . and facilitated prosecution
of terrorist suspects. Throughout the summer and fall, authorities arrested
hundreds of terrorist suspects and sentenced dozens to lengthy prison
terms and, in some cases, execution.93
Amnesty International’s June 2004 report casts further light on the treatment
of such ‘terrorist suspects’ in custody. Compared with the decrease in reports
of torture and ill-treatment prior to 2002, this is clearly a set-back for the
rights of Moroccan citizens, challenging internal actors working for socio-
economic and political reform in different constituencies across the country.

E. Tunisia
Tunisia’s Law no. 2003–75 regarding Support for International Effort to Combat
Terrorism and the Repression of Money Laundering94 shows some similiarities
with the Moroccan amendments. The draft had already been prepared when in

91
Article 5 of Law no. 03.03 amending articles 66 and 80 of the Code of Criminal Procedure.
92
Amnesty International, ‘Briefing to the Committee Against Torture’, 6.
93
Patterns of Global Terrorism, 65.
94
´
Law no. 2003–75 of 10 December 2003, Journal Officiel de la Republique Tunisienne no. 99
of 12 December 2003 at 3592–601. French translation by the Tunisian government for
purposes of information. French text also available at http://www.jurisitetunisie.com/
LYNN WELCHMAN
604

April 2002 a truck exploded outside a Djerba synagogue, killing twenty-one
people. The Tunisian authorities have observed that they had ‘long warned of the
terrorist threat’, but at the same time human rights groups have voiced concern
at Tunisia’s use of the security discourse for over a decade ‘as a pretext for
repression of political dissent and critical discourse across the political spec-
trum’.95 Thus, while the official narrative of modernity, stability and rights
(including substantial emphasis on women’s rights) is fiercely promoted at
home and abroad, Tunisia’s public space remains extremely restricted in relation
to criticism of the president or the government. Tunisia’s new law reflects its
official image in an aspirational opening statement:
The current law guarantees society’s right to live in security and peace, far
from all that is of a nature to undermine its stability, to reject all forms of
deviance, violence, fanaticism, racial segregation and terrorism which menace
peace and the stability of societies. It contributes, moreover, to supporting the
international effort to combat all forms of terrorism, to confront sources of
finance that support it and to the repression of money laundering, within the
framework of international, regional and bilateral conventions ratified by the
Tunisian Republic and respect for constitutional guarantees.
(Article 1)
This is the longest of the post-SCR 1373 (2001) legislative instruments under
consideration here. The law’s first major contribution is to amend the pre-
existing definition of ‘terrorist offence’ under the Tunisian Penal Code.96 The
new Law 2003–75 contained the following definition of terrorist offences:97
Shall be categorized as terrorist, every offence, regardless of its motives,98
related to an individual or collective undertaking liable to intimidate
a person or group of persons or spread alarm among the population with
the intention of influencing the policy of the state and prompting it to
do or abstain from doing any action, disturbing public order or international
peace and security, causing harm to persons or property, damaging the
headquarters of diplomatic and consular missions and international organi-
zations, inflicting serious harm on the environment so as to endanger the
life or health of inhabitants, or damaging vital resources, the infrastructure,
transport, communications, information systems or public amenities.
(Article 4)

tunisie/codes/terror/menu.html. (under the title Lutte contre le Terrorisme et le
Blanchiment d’Argent). I do not yet have the Arabic text.
95
Amnesty International, ‘Tunisia: New draft ‘‘anti-terrorism’’ law will further undermine
human rights’, briefing note to the European Union, AI Index MDE 30/021/2003.
96
In this case I am using the translation provided by the English text of Tunisia’s second
report to the CTC (S/2002/1024 of 13 September 2002).
97
Article 103 Amending.
98
Quels qu’en soient les mobiles. This phrase is not included in the translation in Tunisia’s
third report, which is otherwise used here from the phrase ‘to intimidate’ onwards.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 605

In this wording, prospective intimidation of a person or group of persons or
spreading fear among the population is a necessary element;99 also necessary
is intention, but while this includes influencing state policy, it may also
include ‘disturbing public order’, or ‘causing harm to property’ or ‘damaging
public amenities’. There is no requirement of use of violence nor, in some
phrases, of the level of damage that has to be done.
Amnesty International has voiced particular concern over what it con-
siders a further broadening of the definition of ‘terrorist offence’ in Law
2003–75 in the light of the past use of the pre-existing Article 52 bis of the
Penal Code against non-violent opponents of the Tunisian authorities. The
organization notes that ‘the Tunisian authorities have been casting the net of
‘‘terrorism’’ charges so wide as to include prisoners of conscience. Article 52
bis has been used to criminalize peaceful opposition activities’. The reinstate-
ment since 1999 of the trial of civilians by military court has resulted in
‘scores of civilians . . . sentenced on charges of ‘‘terrorism’’ to heavy prison
sentences after unfair trials’.100
A large number of accomplice offences are provided for, some of them
requiring intention and some not. Membership of whatever form in any sort
of group or organization which ‘even coincidentally or incidentally’101 has
adopted terrorism as a means of achieving its goals is criminalized, as is
putting any ‘capabilities or expertise’ at the disposal of such a group or
supplying or disseminating information ‘with the intention of assisting in
the commission of a terrorist offence’.102
A prison sentence of five to twelve years can be imposed on whosoever:
procures a meeting place for members of an organization, group or persons
connected with terrorist offences, helps to lodge them or hide them or helps
them to escape or ensures they are not discovered or punished, or benefits
from the outcome of their misdeeds.103


99
In the French text this is not necessarily the case, but I assume the Arabic original will
confirm the meaning rendered in the English text of the UN report.
100
See further Amnesty International, ‘Tunisia: the cycle of injustice’, AI Index MDE 30/
001/2003. A particularly notorious attempt to apply article 52 bis – although ultimately
the conviction was not made under the ‘terrorist offences’ terms of this article – came in
the 1999 prosecution of Radhia Nasraoui, a prominent human rights lawyer, along
with twenty-one co-defendants. For details of the charges against Nasraoui and her
co-defendants, and of the trial proceedings, see Amnesty International, Human Rights
Watch, and the Observatory for the Protection of Human Rights Defenders, The
Administration of Justice in Tunisia: Torture, Trumped-up Charges and a Tainted Trial,
March 2000, AID Index 30/04/00.
101
Wording from S/2003/1038 11.
102
Articles 13 and 17. The penalty is 5–12 years in prison for the first offences and 5–20 for
the second set, plus a fine of 5,000 to 50,000 dinars in both cases.
103
Article 18 of Law no. 2003–75.
LYNN WELCHMAN
606

There is apparently no requirement here of knowledge or intention. In the
parallel provision of the pre-existing Penal Code broadly the same list of
actions is criminalized with a maximum penalty of six years in prison for
whosoever ‘knowingly and voluntarily’ commits them in relation to members
of a criminal gang.104 The comparable provision in the new Moroccan law
also emphasizes that such acts incur liability where done ‘knowingly’ or
‘intentionally’.105 It is an offence under the Tunisian law not to give immedi-
ate notification to the relevant authorities of information regarding a terror-
ist offence, even where the person is bound by professional confidentiality;
here, an exception is made for ascendants, descendants, brothers, sisters and
spouse.106 Article 12 of Law no. 2003–75 provides for a penalty of five to
twelve years in prison for:
whosoever, by any means, calls for the commission of terrorist offences or
for joining an organization or group connected with terrorist offences, or
uses a name, a term, a symbol or any other sign with the goal of condon-
ing107 a terrorist organization, one of its members or its activities.108
In Canada, Roach notes a new offence regarding ‘knowingly participating in
or contributing to any activity of a terrorist group’, and the evidential use of
frequent association with members of a terrorist group and of the use of
terrorist-related symbols and representations.109 In Tunisia, such use itself
constitutes an offence.

V. Conclusion
Reform and ‘democratization’ in the Arab states were emphasized as a policy
focus in developing US engagement with states in the region in a series of
‘initiatives’ developed in 2003 and 2004.110 Considerable attention is paid to
the findings of the set of Arab Human Development Reports by those seeking

104
Article 133 of the Penal Code as amended by law no. 89–23 of 27 February 1989. Article
28 of Law no. 2003–75 provides for the minimum penalty for the initial offence in the
event that the perpetrators of a terrorist offence establish they were drawn into the act by
inter alia abuse of their situation.
105
See above p. 602. 106 Article 22 of Law no. 2003–75.
107
The French text is faire l’apologie de; the Moroccan provision similarly translated (Article
218.2 above) uses an Arabic word (ashad bi) meaning praise or condone.
108
The last part of this provision, from ‘or uses a name’, is not included in Tunisia’s third
report to the CTC.
109
Roach, ‘World Wide Expansion’, 513.
110
The Greater Middle East Initiative was not, as originally planned, announced at the G8
Summit of June 2004, although some Arab states did attend to discuss an apparently less
ambitious ‘Broader Middle East Initiative’. For a critique of the first for failing to
establish ‘a basis for genuine partnership’, see Marina Ottaway and Thomas Carothers,
‘The Greater Middle East Initiative: Off to a False start’, Carnegie Endowment for
International Peace, Policy Brief 29, March 2004.
ANTI-TERRORISM LAW AND POLICY IN ARAB STATES 607

to formulate policies in the ‘global war on terrorism,’ and in particular to
extremely high levels of joblessness as well as lack of participation in social and
political development. Different bodies in the United Nations have considered
the role of the Organization beyond the CTC in combating terrorism, including
through ‘norm setting, human rights and communication’.111 In a number of
states new, albeit limited, human rights mechanisms have been instituted by
governments, and certain other moves towards social, economic and political
‘opening’ (or ‘reform’) have been noted. Nevertheless, there is clearly a tension
between these developments and the threats to core ‘democratic’ rights posed by
legislation introduced or legitimated by the ‘war on terror’. Helen Fenwick
observes that ‘democratic governments are perfectly entitled to take extra-
ordinary measures if faced with a threat of atrocities’ and explores the tension
that necessarily arises between such measures and ‘democratic values’, with a view
to proposing that such measures ‘be subjected to the most rigorous tests for
proportionality’.112 The lack of space for public dissent and criticism, even
given the opening up that has been going on in certain states over recent years,
is a particular obstacle facing those in the Arab states who would agree with this
statement, and who would seek to constrain within a similar principle of
proportionality the reaction of their governments to serious domestic and
international threats. A further obstacle is the apparent endorsement of legal
and extra-legal practice by the US in particular. In the Yemen, a visiting
delegation from Amnesty International, bringing up the mass arbitrary arrests
and detentions that had taken place there since 11 September 2001, allegedly
with FBI involvement, reported as follows:
The authorities, while recognizing that they were in breach of their international
human rights obligations and their own laws, argued that this was because they
had to ‘fight terrorism’ and avert the risks of a military action against Yemen by
the US in the wake of the 11 September events. The authorities said that they
had ‘no option’ but to continue the practice of detention without charge or trial
of those held contrary to their laws and international obligations, and that they
had no plans to offer them an opportunity of access to lawyers or the judiciary
to challenge the legality of their detention.113
Such deftly frank admissions of responding to pressure cannot excuse the
state actor in such cases. Nevertheless, support – or pressure – for such

111
UN Doc A/57/273 S/2002/875 Report of the Policy Working Group on the United
Nations and Terrorism.
112
Helen Fenwick, ‘Responding to 11 September: Detention without Trial under the Anti-
Terrorism, Crime and Security Act 2001’ in Lawrence Freedman, Superterrorism: Policy
Responses (Oxford, Blackwell Publishing 2002), 80–101, at 100–1.
113
Amnesty International, ‘Yemen: United Against Rights’, AI Index 31/011/2003
24 September 2003. See also ‘200 held in Yemen to placate US’, Guardian, 24 September
2003.
LYNN WELCHMAN
608

measures from the US sits uneasily with its public promotion of reform in the
Middle East as critical in its future engagement with the region. It was also in
Yemen that a CIA-controlled drone aircraft is reported to have launched a
missile killing six men in a car in a suspected extra-judicial execution.
Although Amnesty International reported receiving no response to its letters
raising its concerns, Yemeni ministers have since confirmed that the govern-
ment cooperated with the US in this operation within the ‘global war on
terrorism’.114
Alongside the current focus on ‘democratization’, human rights activists
in the region report an increasing perception of the ‘hypocrisy’ of the inter-
national discourse of human rights and international law, in a region where it
is already complicated by long-standing perceptions of selectivity, and where
indeed the term ‘international’ is being increasingly read as meaning either
US or US-driven. This is a concern not only for those who wish to see
domestic reform initiatives take shape and continue rather than be inter-
rupted or undermined. It needs no particular insight to suggest that such a
development is of dubious efficacy in the effort to build international peace
and security and to combat the phenomenon of terrorism.


114
Amnesty International, ‘Yemen: The Rule of Law Sidelined in the name of security’, AI
Index MDE 31/006/2003 24 September 2003. Amnesty reported the US as arguing that
such actions did not constitute extra-judicial killings but rather ‘military operations
against enemy combatants’ and therefore were governed not by Yemeni police proce-
dures but by ‘the international law of armed conflict’.
27

Terrorism in Argentina: government as its own worst
enemy
WILLIAM C. BANKS AND ALEJANDRO D. CARRIO
´




Argentine society has experienced terrorism from domestic and external
sources since the late 1960s. Domestic terrorism appeared mainly in the
1970s, first as leftist guerrilla movements that sought to attract attention
when they failed to field an organized political movement. This small band of
terrorists effectively paved the way for the appearance of brutal forms of state
terrorism. The repressive state practices were first justified as a necessary
antidote to the guerrilla activities, but quickly expanded into a blunt and
massive campaign to eliminate any dissent to military rule. Unfortunately,
the extra-legal methods employed by the Argentine government for fighting
terrorist violence were mostly condoned or acquiesced in by the judiciary,
and the legacy of the ‘Dirty War’ waged by the military junta continues to
haunt the Argentine courts.
In more recent times international terrorism appeared. A massive attack
destroyed the Embassy of Israel in Buenos Aires in 1992. In 1994, the building
that harboured the two most prominent Jewish organizations in Argentina
was targeted with another deadly bomb. In the combined attacks, conven-
tional explosives caused in the aggregate about one hundred deaths and
hundreds of injuries. In both cases criminal investigations have been ongoing
for more than ten years, although there has been little success in bringing
those responsible to justice. After one president was accused of interfering
with the investigations of the bombings, a new president has promised to
invigorate the investigation and to make its findings public.
After discussing the historical context for terrorism in Argentina and some
legal aspects of the two types of terrorism in parts I and II of this chapter, we
assess common elements of the domestic and international terrorism that have
bedevilled Argentina for more than thirty years. Our conclusion, that the
Argentine government is complicit in the terrorism experience in Argentina,
derives from an examination of the common ground. Unabashed state terrorism
was the government’s tool for responding to the small band of guerrillas in the
1970s, and some state involvement, from knowing acquiescence to quiet sup-
port, accompanied brutal international terrorism in the 1990s. A new govern-
ment has brought new candour and openness to addressing the wrongs of the
609
WILLIAM C. BANKS AND ALEJANDRO D. CARRIO
´
610

Argentine experience with terrorism in the past. Whether the frank admission of
past wrongdoing will pave the way to more lawful and effective responses to
terrorism in the future remains to be seen.

I. State terrorism in the 1970s
A. Historical background
Until 1930, Argentina had a relatively successful constitutional system and a
growing experience with participatory democracy. When a military coup
toppled the elected government in 1930, the retired General Jose F. Uriburu
declared himself president. Although Uriburu promised his ‘respect for the
Constitution and basic laws in force’,1 subsequent history shows anything but
respect, as is evidenced by five military coups between 1930 and 1976, a replace-
ment constitution that lasted only from 1949 to 1955, a practice of sacking
individual justices or the Supreme Court en masse for political purposes, and an
enduringly strong influence of the military in civilian affairs.2
Terrorism first appeared in Argentina in the late 1960s and early 1970s.
Violent guerrilla organizations were formed, during a period when Argentina
was governed by a military regime. The ideologies of these groups varied. One of
´
them, called Ejercito Revolucionario del Pueblo (ERP), was mainly identified with
Marxism. Another powerful group, Monteneros, had a nationalistic origin and
clear links with the Peronist party, which had dominated Argentine politics since
1946. However, the Monteneros’ support for Peronism was merely pragmatic;
they wanted power and influence and believed that Peronist politics could
provide their opportunity. The Monteneros were no more than twenty in num-
ber, and they came together in 1968 to launch a violent struggle against govern-
ment authority. They assassinated General Pedro Aramburu, the president who
sought to overturn Peronist influences. They carried out kidnappings, robberies,
bombings and other attacks on military installations and other government
properties and persons throughout 1971 and 1972.3
´
The party leader, Juan Peron, had been responsible for encouraging these
groups through messages sent from Madrid, Spain, where he had been living
in exile under the protection of General Franco.4 By mid-1972, the ruling


1
Quoted in Robert A. Potash, The Army and Politics in Argentina, 1928–1945 (Palo Alto,
Stanford University Press, 1969), at 58.
2
Daniel Poneman, Argentina: Democracy on Trial (St Paul, Paragon House, 1987), 3–8.
3
Gary W. Wynia, Argentina: Illusions and Realities (New York, Holmes & Meier, 1986), 77–80.
4
‘Violence already exists and only violence will destroy it’ and ‘what other means, except
´
violence is available for a humiliated people’, are phrases attributed to Peron during those
years. For a thorough description of the appearance of these extremist groups and the
illegal response given by the Argentine state, see Jaime Malamud Goti, ‘Terror y Justicia en
la Argentina,’ Ed. La Flor, 2000.
TERRORISM IN ARGENTINA 611

junta announced that elections would be held the following year, leading to a
´
campaign to bring Peron back from Spain for another term as president.
´ ´
A democratic government was elected in 1973 and Hector Campora, known
´ ´
to be the delegate of Peron, was sworn in as President. Campora resigned
´
almost immediately, making room for Peron, who had conveniently
returned from Spain earlier on. After another general election was held,
´
Peron became President of Argentina for a third time. His wife, Isabel
´ ´
Martınez de Peron, who had no experience in holding public office, was
elected Vice-President.5
´ ´
Peron died in July 1974 after less than a year in office, and Isabel Peron
became the new head of state. The Monteneros recognized that, while they
were heard by the new Peronist government, they had not gained consider-
´
able influence. ERP, already rejected by Peron, attacked the Peronist left,
leading the old guard Peronists to begin violent confrontations with the
youthful ERP and Monteneros. By then, violence emanating from all groups
became an everyday reality, each faction claiming to be the real heir of the
Peronist doctrine. Bombings, kidnappings, and attacks directed at military
bases, were part of the strategy followed by the guerrilla groups, especially
ERP and the Monteneros. The Monteneros kidnapped wealthy businessmen,
collected ransom, and used the $70 million to buy weapons which they used
to assassinate labour and Peronist leaders. In 1975 and 1976 they expanded
their attacks to military and police installations. In 1976 the Monteneros killed
or seriously injured 300 persons.6
In early 1974, the government began to fight back. A former secretary of
´ ´´
Peron and Minister of Social Affairs, Jose Lopez Rega, became the strong man
7
´
of an already ineffectual government. Lopez Rega was responsible for the
creation of the Anti-Communist Argentine Alliance, or Triple A, a para-
military group made up in part of retired police officers and gunmen from the
ministry of social welfare. Triple A began to combat the guerrilla groups using
their very same methods. In 1975, with violence dominating the political
scene, the executive issued a decree giving the armed forces the task of
carrying out the ‘military and security operations they deem necessary to
annihilate the subversive elements throughout the country’.8 According to
this decree and some complementary orders issued by the military, the whole

5
´ ´
Interestingly, Peron’s wife was able to achieve what Eva Peron could not. When in 1952
´
Peron was running for a second period as President, the powerful military blocked the
´
candidacy of Eva Peron for the Vice-Presidency. Only then ‘Evita’ delivered her famous
speech of renouncement of that post.
6
Wynia, Argentina, at 81–2. 7 Goti, ‘Terror y Justicia’, at 23.
8
´
Decree 2772 of October 6, 1975, published in the Boletın Oficial of Argentina, 4 November
1975. See generally Alejandro Garro and Henry Dahl, ‘Legal Accountability for Human
Rights Violation in Argentina: One Step Forward and Two Steps Backward’ (1987) 8
Human Rights Law Journal 283.
WILLIAM C. BANKS AND ALEJANDRO D. CARRIO
´
612

of Argentina was divided into four defence zones, with a military commander
in charge of each. The Army, under the command of Lieutenant General Jorge
Rafael Videla, had overall control of all zones.
In 1976 the military seized power from an already exhausted government
in another coup. General Videla was appointed President of the military junta
that took control. The parliament was dissolved and heavy purges in the
judiciary followed. Under these circumstances, the military junta took advan-
tage of the state of siege9 that had been declared in 1974 by the previous
government, in order to escalate what became known as the ‘Dirty War’
against any individual suspected of left-wing ideologies. Instead of merely
re-establishing order in society, the military government determined to root
out what it viewed as the core sickness of Argentine society.


B. Fighting terrorism with more terrorism: states of siege
Although the United States Constitution influenced the Argentine
Constitution of 1853, the Argentine Constitution retained a Spanish-style
centralization of powers. In addition to designating the president as ‘supreme
head of the Nation’,10 the Argentine Constitution borrowed from the French
revolutionary law of 1791 and the Chilean Constitution of 1833 to confer on
the president the authority to declare a ‘state of siege’ and suspend constitu-
tional freedoms when internal unrest threatened the Constitution or the
government.11 Although only the Congress may declare a state of siege during
a period of ‘internal disorder’, the President may issue the declaration if the
Congress is in recess, and Congress may approve or disapprove the declara-
tion when it reconvenes.12 This limitation on the executive has proven
ineffectual in Argentine history. During the extended periods when
Argentina has been ruled by the military, the president has unilaterally
declared every state of siege; Congress has been dissolved during military
rule.13 States of siege have been imposed more than thirty times, for periods
as short as six weeks and as long as nine years.14



9
For an analysis of the prerogatives of the executive in Argentina under a state of siege and
its comparison to emergency powers in the United States, see William C. Banks and
´
Alejandro Carrio, ‘Presidential Systems in Stress: Emergency Powers in Argentina and the
United States’ (1993) 15 Michigan Journal of International Law 1.
10
Arg. Const. art. 99 (1).
11
Ibid. art. 23. See Alejandro M. Garro, ‘The Role of the Argentine Judiciary in Controlling
Governmental Action Under a State of Siege’ (1983) 4 Human Rights Law Journal 311,
316–317 (1983).
12
Arg. Const. arts. 75 (29); 99 (16). 13 See Banks and Carrio, ‘Presidential Systems’, at 11.
´
14
Poneman, Argentina, at 131.
TERRORISM IN ARGENTINA 613

´
The government of Isabel Peron declared the entire nation to be in a state
´
of siege in 1974. After seizing the government from Peron in 1976, and with
augmented powers coming from laws enacted by the military leaders, the
armed forces resorted to repressive activities. The Statute for the Process of
National Reorganization, for example, declared that the Constitution would
remain in force only ‘to the extent that it does not oppose the main
objectives set forth by the military junta or the provisions’ of its law.15
The ‘Dirty War’ was conducted by the military government between 1976
and 1983, relying for its legal legitimacy on the state of siege declared by
the deposed constitutional government. The three service branches
planned an orchestrated campaign of state terror and then carried it out
throughout Argentina. The campaign of violence was carried out under the
supervision of the highest levels of the military leadership, with orders
in chain-of-command fashion filtering down to the Task Groups
of young officers, civilians and off-duty policemen who executed the
orders.16
Violent abductions of suspected ‘subversive elements’ became an every-
day reality, followed by detention in 280 secret prison camps created near
military bases, interrogation with the use of torture, and execution.17
Systematic and prolonged torture of those abducted included the electric
prod, sexual abuse, and a variety of forms of psychological torture. Many
people became the famous ‘disappeared ones’, while courts summarily
rejected most habeas corpus petitions brought by the families of those
deprived of their freedom, simply relying on the information advanced by
the Minister of the Interior that denied any knowledge of the whereabouts of
the missing persons.18 The commission that eventually investigated the
‘disappeared’ persons documented 9,000 cases, although human rights
organizations claimed that 30,000 were executed by the government. All
the while, as the state monopolized terror and repression, fear turned
citizens into spies on their neighbours, who became informants to the
state.19



15
Estatuto para el Proceso de Reorganizacion Nacional of Mar. 24, 1976, XXXVI-B A.D.L.A.
1021, 1032 (1976).
16
Luis Alberto Romero, A History of Argentina in the Twentieth Century (University Park,
Pennsylvania State University Press, 2002), 212–220.
17
The horrendous practices used by the Armed Forces were documented in a report
prepared by a National Commission set up by President Alfonsin in 1983, when
´
Argentina returned to democratic rule. The report was known as ‘Nunca Mas:
´ n de personas,’ published by Editorial Universitaria de
Informe sobre la desaparicio
Buenos Aires.
18
´
See Banks and Carrio, ‘Presidential Systems’, at 32.
19
Romero, History of Argentina, at 218–20.
WILLIAM C. BANKS AND ALEJANDRO D. CARRIO
´
614

C. The aftermath: open wounds
The disastrous adventure of the Argentine armed forces that resulted in the war
with Great Britain over the Malvinas/Falkland Islands in 1982 precipitated
the fall of the military government. General elections were held in 1983 and a
´
´
new democratic President, Raul Alfonsın, took office in December of the same
year. Almost immediately the government implemented a policy of bringing
to trial the heads of the military junta that ruled the country between 1976 and
1983 for their role during the ‘Dirty War’ against terrorism. The initial idea of
the government had been to leave the trials to military tribunals, according to
the existing legislation that gave them jurisdiction.20 The procrastination of
these tribunals paved the way for a decision of the Federal Court of Appeals
of Buenos Aires to take jurisdiction over the case.21 The Federal Court of
Appeals convicted most members of the junta, handing out heavy sentences
ranging from life imprisonment to extended periods of incarceration. The
convictions were mainly for the crimes of murder, torture and illegal deprivation
of freedom.22
In this section we examine some of the still festering wounds caused by the
state terrorism employed by the armed forces in Argentina. To be sure, the
guerrilla movements of the 1970s were a threat to Argentine society.
However, these horrific injuries done to innocent civilians vividly illustrate
the risks of using illegal means against terrorism, no matter how serious this
threat might be.

1. Missing children, crimes against humanity and the extent of
res judicata
One consequence of the policies implemented by the Argentine Armed Forces
to deal aggressively with those who became the ‘disappeared ones’ was that
many children were born while their mothers were held under secret deten-
tion. It is now known that many of those infants were appropriated by

20
The existing Code of Military Justice, Act 14029, would give the military courts jurisdic-
tion to try all offences committed by any member of the armed forces, even such serious
offences as murder and torture. The policy implemented by the government was to amend
the Code, adding to the processes held in military courts a mandatory appeal in front of
the Federal Court of Appeals located in Buenos Aires. The amendment also made sure that
if the military councils showed no progress in trying their own personnel, the Federal
Court of Appeals could take jurisdiction to try the cases itself. See these amendments in
Act 23049 passed by Congress on 14 February 1984, XLIV-A A.D.L.A. 8 (1984). For
further analysis of the extent of this Act, see Garro and Dahl, ‘Legal Accountability’, at 306.
21
Ibid.
22
The case in which these convictions were imposed was identified as ‘13/84.’ The full
decision is published in 309 Fallos CSJN, Vol. 1 and 2 (1986). On appeal, the Argentine
Supreme Court affirmed most of the convictions, while reducing some of the sentences
imposed. See 309 Fallos CSJN 1657 (1986).
TERRORISM IN ARGENTINA 615

persons with connections to the military, who either tried to pass these
children as their own, or initiated adoption proceedings. In both situations,
false birth certificates issued in most cases by physicians belonging to the
police or the armed forces were created.
Former President and Army General Videla was one of those convicted of
murder, deprivation of freedom and torture, in the 1984 trial held in the
Federal Court of Appeals. Although charged with six counts of abduction of
minors, Videla was acquitted of all six counts. Some years later, Videla was
charged again with the crime of abduction of four different minors, born
while their mothers were held captive. In the interim and after the convic-
tion of the heads of the military junta, Congress passed an Act that sought to
put an end to the trials of members of the armed forces that were being
brought to Justice.23 In essence, what became known as the ‘Due Obedience
Law’24 created an irrefutable presumption that all military, police officers and
servicemen below a certain rank had acted following orders that they were in
no position to question. However, this ‘Due Obedience Law’ made clear that
the presumption did not apply to the crimes of abduction of minors and
suppression of their real identity.25 Because of this exception to the general
rule, Videla could be charged in spite of the existence of the Act.
In the course of the process Videla made a motion claiming that in the
main trial in which the heads of the junta had been partially convicted, his
acquittal had encompassed all possible cases of illegal deprivation of freedom
of minors. In his motion he relied on a passage of the decision by the Federal
Court of Appeals, in which the court stated that the defendants had been
indicted for all the events that occurred while in charge of their respective
forces. Therefore, the Federal Court of Appeals added, no new criminal
prosecution could be brought against these defendants, since the lack of
specific charges for other counts amounted to an implied acquiescence in
other conduct of the accused.26 With express reliance on this passage of the
decision that had acquitted Videla for the abduction of certain minors, his



23
By March 1987 the situation had become very tense. Some fifty military and police officers
had been arrested in connection with human rights violations during the ‘Dirty War,’ and
members of the armed forces had begun to show their unrest. Especially lieutenants,
colonels and other officers in active duty menaced with revolts against the government,
claiming that they were those who had really risked their lives in the fight against
‘subversion’, while merely following orders from their superiors. A strong revolt took
place during the Easter of 1987 when a military barrack was the scenario of many troops
demanding an end to the trials held against all members of the armed forces. See Garro
and Dahl, ‘Legal Accountability’, at 337.
24
Act 23521 published in XLVII-B A.D.L.A. 1548 (1987). See especially art. 1.
25
See ibid. art. 2.
26
See decision of the Federal Court of Appeals, Vol. 309 Fallos CSN, at 306/307.
WILLIAM C. BANKS AND ALEJANDRO D. CARRIO
´
616

defence then sought to thwart the new charges brought against him for the
abduction of different minors by relying on the principle of res judicata.27
The res judicata argument was finally rejected by the Argentine Supreme
Court.28 In a part of the opinion in which all members concurred, the Supreme
Court held that Videla had been previously charged with specific acts of abduc-
tion of certain minors, that were individualized in the case that resulted in his
partial acquittal. He had not been charged, the Supreme Court added, with
unspecific crimes committed at some period of his life, or ‘unspecific abductions’,
but rather with certain and concrete acts of murder, torture and abductions. As
Justice Maqueda stated in his concurring opinion, ‘the defense of res judicata
could only encompass the historic event that the court (below) was legally in a
situation to judge’.29 Therefore, the Court concluded, there were no obstacles to
trying Videla for the abduction of minors not included in the previous case.

2. Pardons
The tension created in the 1980s when the Argentine courts arrested many
active duty military officers for their role in the ‘Dirty War’ was partially
appeased by the approval by Congress of President Alfonsin’s so called ‘Due
Obedience Law’. The courts routinely dismissed the charges brought against
these lower ranking defendants, entering decisions of exoneration that,
according to Argentine law, have the full effect of an acquittal, preventing
new charges for the same crime.30
However, the solution embedded in the ‘Due Obedience Law’ of only blaming
those responsible for handing down the illegal orders, while freeing those merely
carrying them out, was not enough for the military. Under the presidency of
Carlos Menem, who had assumed the office after the general elections held in

27
Act 48 that regulates the access of cases to the Supreme Court mandates that only ‘final
decisions’ can be appealed to the Argentine highest tribunal. See A.D.L.A, 1852–1880, 364,
art. 14. However, this Court has consistently held that decisions of lower courts that reject
the application of the double jeopardy clause actually qualify as ‘final’, because of the
irreparable harm that can be caused by such a rejection. See, among many others, ‘Ganra
de Naumow,’ 299 Fallos 221 (1977).
28
Decided on 21 August 2003; 2003-F La Ley 84. The decision in full was published by the
´
‘Asociacion Argentina de Derecho Constitucional,’ No 191 issue, XIII, July/October 2003,
´
p. 105, with note by Alejandro Carrio.
29
See Justice Maqueda’s opinion, ibid. at 126.
30
In the Argentine system of criminal justice, notions of double jeopardy attach at very early
stages of the process, since the investigation of crimes is essentially a judicial function.
Investigative magistrates are actually those in charge of deciding whether there are enough
grounds to bring defendants to trial, and decisions of those magistrates to end an
investigation have the full effect of an acquittal, barring a new investigation for the same
´
event. See, generally, Alejandro D. Carrio and Alejandro M. Garro, ‘Chapter 1, Argentina’
in Craig M. Bradley (ed.), Criminal Procedure: A Worldwide Study (Durham, Carolina
Academic Press, 1999).
TERRORISM IN ARGENTINA 617

1989, many superior officers not covered by the benefits of the ‘Due Obedience
Law’ continued to press for the termination of the cases remaining open against
them. President Menem eventually acceded to their demands and ordered the
full pardon of more than 200 military officers and other members of the armed
forces. Those pardons, unprecedented in size and scope, resulted in the termina-
tion of all legal proceedings still under way.31 In another move that was highly
criticized by the legal community, Menem also pardoned the heads of the
military junta that had been convicted during the historic trial held by the
Federal Court of Appeals, during the presidency of Alfonsin. As a result of
these pardons, no member of the Armed Forces remained in jail or subject to
criminal charges for the remainder of Menem’s presidency.
In 2003, the election of a new President in Argentina, Nestor Kirchner,
brought a new willingness to confront past abuses and to provide openness in
government. Unresolved allegations of human rights abuses were subject to
re-examination, as was the role of the armed forces while fighting terrorist
groups during the 1970s. First, Congress passed a law that repealed and
declared ‘null and void’ the 1987 ‘Due Obedience Law’.32 New charges,
even for the old crimes, were brought against those previously pardoned
or benefited by the ‘Due Obedience Law’. This time, courts justified the
new indictments claiming that the policy employed by the armed forces of
subjecting individuals to secret detention, forcing them to ‘disappear’, or
imposing torture during questioning, amounted to ‘crimes against human-
ity’, not subject to the defences available for normal crimes governed by

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