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domestic law.

3. The incorporation of international humanitarian law in the
courts of Argentina
Even though not necessary to solve the question under dispute in the Videla case,
two concurring Justices of the Argentine Supreme Court invoked language of the
Barrios Altos case decided in March 2001 by the Interamerican Court of Human
Rights. In Barrios Altos the Interamerican Court dealt with the validity of a
Peruvian amnesty law that exempted from criminal responsibility those mem-
bers of the armed forces, the police, and civilians for human rights violations
committed between 1980 and 1995. Declaring that Peruvian law inconsistent
with several provisions of the American Convention of Human Rights,33 the


31
´
Banks and Carrio, ˜Presidential Systems™, at 34.
32
See Act 25779, A.D.L.A. LXIII-D, 3843, passed on 21 August 2003, which declared null and
void the previous Act 23521.
33
´
Signed in San Jose, Costa Rica, on 22 November 1969. Argentina approved this
Convention by Act 23054 on 19 March 1984. In an Amendment to the Argentine
Constitution that took place in 1994, the text of this Convention was incorporated in
the Constitution. See art. 75, subdivision 22.
WILLIAM C. BANKS AND ALEJANDRO D. CARRIO
´
618

Interamerican Court of Human Rights held:
that amnesty provisions, those that declare the application of the statute of
limitations and the acceptance of exemptions of responsibility intended to
prevent the investigation and punishment of those responsible for serious
violations of human rights such as torture, extralegal or arbitrary summary
executions and forced disappearances of persons, all acts prohibited as a
violation of inalienable rights acknowledged by International Law, are
inadmissible.
In deciding the Videla case, Chief Justice Petracchi stated that any extensive
interpretation of the principles of res judicata which prevents the prosecution
of the defendant should be rejected.34
The decision to treat the crimes committed by the Argentine armed forces
during the 1970s and early 1980s as ˜crimes against humanity™, proscribed by
principles of international law, is having a significant effect on previously settled
doctrines of Argentine law. In the Rivero case, decided by the Federal Court of
Appeals of Buenos Aires on 7 August 2003,35 the defendant had challenged his
prosecution for the crime of abduction of minors and suppression of their
identity, because the statute of limitations had run. The acting Court of
Appeals rejected this claim, invoking principles of international law that make
this type of crime subject to continuous prosecution, in spite of any limitations
coming from the internal legislation of the country in which the trial is taking
place. The decision also relied on two International Conventions: the
Convention approved by the United Nations in 1968 declaring that ˜crimes
against humanity™ are not subject to the statute of limitations, and the
Interamerican Convention of Forced Disappearances of Persons, signed in
Brazil, on 9 June 1994, that includes similar provisions.36 The Federal Court of
Appeals relied on these international instruments even though none of them had
been ratified by Argentina at the time of the events judged in this case.37
In another case recently decided by the same Federal Court of Appeals,
Crespi,38 the court declared that the previous exoneration of the defendants
based on the application of the ˜Due Obedience Law™ did not permit a
successful res judicata defence in a new trial. After characterizing the crimes
under investigation “ disappearances, tortures and abductions “ as ˜crimes
against humanity™, the Federal Court of Appeals declared that the principle of
res judicata does not apply when the state has failed to fulfil its duty of fully
investigating and punishing those responsible for gross violations of human

34
See section 12 of Justice Petracchi™s concurring opinion in La Ley, above note 28, at 120.
35
See La Ley, Suplemento de Jurisprudencia Penal y Procesal Penal, 30 July 2004 issue, at 1,
´
with note of Alejandro Carrio.
36
See art. VII of this Convention. Its full text in LV-E A.D.L.A. 5862 (1995).
37
Actually, the second one had not even been signed at that time.
38
Decided on 13 July 2004. La Ley, 4 August 2004 issue, at 12, case No. 107869.
TERRORISM IN ARGENTINA 619

rights. In its most recent decision concerning the effects of international law
on Argentine law, the Supreme Court held on 24 August 2004 that a statute of
limitations could not stand in the way of the trial of Arancibia Clavel, accused
of a range of offences, including conspiracy to commit murder as part of a
political assassination plot, in violation of international humanitarian law.39

4. Forcing victims to face DNA tests
One of the most dramatic consequences of the ˜disappearances™ that took
place in Argentina during the 1970s relates to the legal battles undertaken by
the families of the ˜disappeared™ who have attempted to locate children born
while their mothers were in captivity. Organizations composed of relatives of
those who disappeared were formed.40 With patience and the help of other
human rights groups, they have been able to locate over the years many
children who could then renew their ties with their blood family.
In the course of these pursuits, some criminal courts ordered blood tests
on those defendants charged with having appropriated these missing child-
ren, in order to rebut their defence that they “ the defendants “ were the real
parents of the suspected victims. Courts have determined that tests that
require the extraction of blood for DNA analysis can be forcefully imposed
on the defendants.41 A much more serious problem arose in cases where
the test was ordered on victims of the alleged abduction, who refused to take
the test, claiming that that they will not submit to a test that may result in the
conviction of those they consider their real parents and responsible for their
raising. In some cases currently being litigated, the alleged victims are no
longer minors, and their refusal of the DNA test as adults is more difficult to
reject than that of minor children.
´ ´
The case of Vazquez Ferra, recently decided by the Argentine Supreme
42
Court, presents the competing values surrounding this problem. Evelin
´ ´
Vazquez Ferra was already over twenty-one years old, when a blood test
was ordered by a criminal court in the prosecution brought against those
who raised her. In the course of the investigation the defendants confessed
that their daughter was given to them by persons connected to the military
during the 1970s, although they had raised her as their own daughter using a

39
Arancibia Clavel, Supreme Court of Argentina, 24 August 2004 (unpublished, copy on file
with the authors).
40
The most notorious one is the so-called ˜Abuelas de la Plaza de Mayo™, an organization
formed by elderly women trying to locate their grandchildren.
41
The leading case, decided by the Argentine Supreme Court, is ˜H.G.S.™ 318 Fallos CSN
2518 (1995). In that case a unanimous Court held that a defendant suspected of having
appropriated a child that he tried to pass as his own, cannot oppose a blood test that can be
used to disprove his false allegations. The Court found that neither the privilege against
self-incrimination nor the due process clause are violated by this investigative step.
42
30 September 2003. La Ley, 6 October 2003 issue, at 4.
WILLIAM C. BANKS AND ALEJANDRO D. CARRIO
´
620

false birth certificate. In order to corroborate the confession the criminal
court ordered a DNA test at the request of those who claimed to be her blood
´ ´
relatives. Evelin Vazquez Ferra objected to the test and the case reached the
Supreme Court.
In a majority decision the Court agreed with her. Some of the Justices
found the right to privacy so compelling that it could overcome an invasive
investigative technique that violates privacy surrounding the family. These
Justices also opined that the same rationale that prohibits forcing an indivi-
dual to give testimony against those with direct family ties applies in the
present case.43 Most Justices also found that the fact that Vazquez Ferra was
´ ´
an adult at the time of objecting to the test made this case distinguishable
from the H.G.S. case.44 In H.G.S. the Court had primarily relied on portions
of the International Convention for the protection of children™s rights, not
applicable in the case at issue.


II. International terrorism in the 1990s
On 17 March 1992, a tremendous explosion destroyed the Israeli Embassy
in downtown Buenos Aires, killing 28 people and injuring more than 300.
Immediately an investigation was opened under the supervision of the
Supreme Court of Argentina, which has jurisdiction in all cases concerning
diplomats and members of Foreign Services.45 The most accepted theory is
that a truck loaded with explosives was parked directly in front of the Embassy.
On 18 July 1994, an entire building which served as the educational and
´
recreational centre for two important Jewish organizations, Asociacion
´
Mutual Israelita Argentina (AMIA), and Delegacion de Asociaciones
Israelitas Argentinas (DAIA) was also the target of a terrible attack. This
time a large van filled with explosives was detonated, killing 86 people and
injuring more than 300. This time the investigation was left at the hands of a
Federal Court of first instance, according to the Argentine rules that mandate
that the investigation of crimes be directed by a magistrate.

A. Two unsuccessful investigations
Those responsible for the two bombings have not been apprehended. For
more than a decade different theories have been advanced to explain the
unsuccessful investigations. A written presentation made by representatives
of AMIA and DAIA to the acting criminal court46 found many common

43
´ ´
See the opinion of Justices Belluscio and Lopez. Justices Petracchi, Moline O™Connor, Fayt
´
and Vazquez concurred with this line of reasoning.
44
See above note 41 and accompanying text. 45 Arg. Const. art. 117.
46
See AMIA “ DAIA, ˜La Denuncia,™ published by Editorial Planeta, 1997.
TERRORISM IN ARGENTINA 621

failings in basic police work in the two investigations. In neither investigation
was the zone surrounding the explosions carefully preserved. In their efforts
to rescue possible victims, many bystanders made alterations to the crime
scene that were later impossible to correct. In addition, in both cases the
government agency in charge of identifying those leaving the country immed-
iately after the attacks failed to provide crucial information, claiming a lack of
resources.
The AMIA investigation did reveal some connections between individuals
trafficking with stolen cars “ the van used in the attack among them “ and
members of the police force of Buenos Aires province.47 Even though some
members of this branch of the police were charged as accessories to the main
crime of bombing the building, many observers believe that the case will at
most prove the links between those police officers and one particular defend-
ant, charged with having prepared the van to carry the explosives. It has not
been proven that those police officers knew that the van would be used in a
terrorist attack.48
The AMIA and DAIA report also shows a lack of professionalism on the
part of the special investigative force within the Federal Police responsible for
´
helping with the investigation: the so-called ˜Departamento de Proteccion
del Orden Constitucional™. When requested by the Federal Court to submit
all tapes containing telephone conversations recorded at the house of the
defendant charged with preparing the van used in the attack, this unit replied
that many of those tapes were missing.49 Photographs and a notebook seized
during one of the several searches conducted by the police were also reported
missing.50

B. Legal tools, illegal practices
In 1994, by Executive Decree 2023/9451 a Federal Fund for the Protection
against terrorism was established, aimed at providing rewards for those who
would advance information or agree to give testimony helpful to determine
who was responsible for the terrorist attack on the AMIA-DAIA building. In
July 1996 the Judge in charge of the AMIA investigation began negotiating
with one of the defendants toward obtaining a link between the defendant
and the police forces of Buenos Aires province, concerning the delivery of the
van later used for the attack. These negotiations were kept secret from all the
other defendants. Testimony involving some police officers was finally

47
Ibid. at 49/50. 48 See the report included in ˜Revista Textual,™ Na 70, 16 July 2004.
49
Ibid. at 64. 50 Ibid. at 66 and 77.
51
Signed on 16 November 1994. This Decree was later complemented with Act No. 25.241
passed by Congress, LX-B ADLA 1409 (2000), defining ˜acts of terrorism™ and reducing
penalties for those cooperating with the investigation of terrorist acts.
WILLIAM C. BANKS AND ALEJANDRO D. CARRIO
´
622

obtained, and became part of the official record of the case. This testimony
also became the main evidence against the police officers held in custody,
pursuant to a pre-trial detention decree. At that time, it was not revealed that
the Judge had paid to the confessing defendant “ allegedly from the Federal
Fund mentioned above “ the sum of $400,000. The whole story broke some
time later, when a videotape of that secret negotiation mysteriously
appeared.52 The Judge and two prosecutors who conducted the secret inter-
views and arranged for the illegal payments were later removed from the
case.53
Before the illegal payments scandal, the investigating judge made apparent
headway in the case. In 2003, the judge released testimony by a defector from
Iran™s intelligence service, who fled Iran to Germany in 1996. In 1998 and
2000 depositions, Abdolghassem Mesbahi said that senior Iranian officials
ordered the 1994 AMIA bombing and then paid former Argentine President
Menem $10 million to deny Iranian involvement in the bombing. Although
Iran and Menem denied the charges, Argentine prosecutors claimed that the
Meshabi statements are consistent with elements of their investigation.54
Based on the Meshabi testimony, the judge asked Interpol to arrest four
Iranians “ the head of Iranian intelligence in 1994, a former Iranian cultural
´
attache at the Argentine Embassy, a diplomatic courier, and a former educa-
tion minister. Meshabi also claimed that the 1992 and 1994 attacks were
ordered by Ayatollah Ali Khamenei, Iran™s supreme leader, and other senior
Iranian officials.55
President Nestor Kirchner also signed an executive decree opening secret
intelligence documents and ordered intelligence agents to testify concerning
their knowledge of the 1992 and 1994 bombings, to aid in the investigation of
the attacks.56 The government has had no success trying to extradite the
Iranian officials. Britain refused to extradite a former Iranian ambassador to
Argentina who was indicted in Buenos Aires in 2003. Argentina also claims
that Switzerland has failed to cooperate in an investigation of how the attacks
were financed.57 In the midst of the continuing investigation, a trial has been
ongoing of the local police officers and car thieves believed to have supplied
the vehicle used in the 1994 bombing. With the removal of the investigative

52
See Claudio A. Lifschitz, ˜AMIA,™ ed. Marcelo Soriano et al. (Buenos Aires, Departamento
Editorial, 2000). The writer of this book was an official of the federal court in charge of the
investigation. According to the writer, he became a witness to the congressional investiga-
tion that took place when some irregularities of the case started to be revealed.
53
Above note 48. 54 ˜Judgment in Argentina™, Boston Globe, A18, 12 March 2003.
55
Ibid.
56
Kevin Gray, ˜Argentinean president calls probe of ™94 JCC bombing a ˜˜disgrace™™™,
Jerusalem Post, 20 July 2003, at 3.
57
Larry Rohter, ˜Argentines Criticize Investigation of ™94 Attack™, New York Times, 19 July
2004, at A6.
TERRORISM IN ARGENTINA 623

judge for the illegal payments, a new judge has been appointed, but he has a
backlog of other work and little resources to conduct a broader investiga-
tion.58 Recent developments in the case have included discussions of having
the accused Iranians stand trial in a third country, although Iran has shown
no interest in this proposal, and requests by Jewish groups for a belated
investigation into a Syrian link to the 1994 attack. Menem is of Syrian
descent, and it is alleged that he permitted Syrians under surveillance in
Argentina to leave Argentina after the bombing, including a cousin of the
president of Syria.59

III. Conclusions: common threads
A recurring theme appears in the two parts above. In the late 1960s and 1970s,
Argentina became a playground for domestic terrorism fomented by guerrilla
groups. The presence of military governments both contributed to and facilitated
the operations of these groups. What later appeared as the ˜official™ response by
the government, namely terrorism sponsored by the state directed inward at
Argentine citizens, only made matters worse. ˜Disappearances™ and secret inter-
rogations and torture of anybody suspected of having links with terrorists
became an everyday reality. Appropriation of infants of those held in captivity
added a final insult to the unprecedented levels of state-sponsored terrorism.
State complicity in terrorism has not been merely a province of the
executive in Argentina. For the most part, the Argentine judiciary has been
unwilling to confront executive abuses of power during states of siege. For
example, the Constitution declares that the executive ˜shall not convict or
apply punishment upon [its] own authority™.60 During the ˜Dirty War™, the
junta interrogated those it detained, engaged in indefinite detention and
torture, and, after summary proceedings before military tribunals, the sus-
pects were in thousands of instances ˜disappeared™.61 The junta was not
˜convicting™ or ˜punishing™ Argentine citizens “ the people were being tor-
tured and killed. After the ˜Dirty War™ was over, some courts began to assert a
stronger role. By and large, however, judges reviewed for ˜reasonableness™ the
detentions in light of the purposes of Article 23 of the Constitution, and sided
with the government after executive assertions that the detainee had ˜sub-
versive connections™.62 Ironically, then, the civilian and military leaders in



58
Larry Rohter, ˜Justice Elusive in 1994 Attack on Argentine Jews™, New York Times, 30 May
2004, at 4.
59
Rohter, ˜Argentines Criticize™. 60 Arg. Const. art. 23.
61
Martin Edwin Anderson, Dossier Secreto: Argentina™s Desparecidos and the Myth of the
˜Dirty War™ (New York, Westview Press, 1993), 223“94.
62
Garro, ˜Argentine Judiciary™.
WILLIAM C. BANKS AND ALEJANDRO D. CARRIO
´
624

Argentina employed the courts and an apparently rational discourse of law to
legitimate what were lawless actions.63
Similarly, the Menem pardons were accompanied by the colour of law but
were not lawful. The Constitution permits Congress to ˜grant general amnes-
ties™, and it permits the president to ˜pardon or commute penalties for crimes
subject to federal jurisdiction, with a previous report from a competent
tribunal™.64 The Menem pardons were effectively an amnesty, did not elimi-
nate any penalties that had been imposed, and usurped the congressional
role. In addition, after the pardons the Argentine criminal law could not then
be applied to the conduct charged of the officers, and the allegations of
torture could not be assessed in light of the International Convention on
Torture and Cruel Treatment, ratified by Argentina in 1987.65 Instead of
confronting the pardons on their merits, the Argentine Supreme Court
responded to a challenge by the families of the disappeared persons by ruling
that the victims™ families lacked standing to sue.66 After a prosecutor then
disobeyed instructions from the Ministry of Justice and joined as a party with
families of the disappeared persons to challenge the pardons of military
officials, the Court found standing to sue based on the prosecutor™s challenge,
but concluded that the prospective pardons could be justified under the
Constitution.67
Under President Kirchner, the government has pursued greater transpar-
ency and its willingness to reopen old wounds has been followed by some
judges. Despite the stalled efforts to track down those responsible for the 1992
and 1994 bombings, and the allegations that President Menem actively or
passively obstructed the investigations, the current government publicly
lamented the disgraceful conduct of the investigation during its first decade
and remains committed to pursuing the cases to their conclusion. Finally, the
willingness of the Supreme Court and other judges to recognize and then
incorporate international humanitarian law principles as part of the fabric of
the laws of Argentina has also been a welcome respite from the tradition of
deferring to executive branch interpretations of expansive executive powers.


63
Banks and Carrio, ˜Presidential Systems™, at 34. 64 Arg. Const. arts. 75 (20); 99 (5).
´
65
Act 23.338, XLVII A.D.L.A. 1481 (1987).
66
Riveros, Omar S. y otrol, [1991-I] J.A. 306 (1991).
67
´ ´
Judgment of 14 October 1992 (Aquino), Corte Supreme de Justicia de la Nacion, [1993-I]
J.A. 45 (1993).
28

Postscript: some recent developments
VICTOR V. RAMRAJ, MICHAEL HOR AND KENT ROACH




Anti-terrorism law and policy is a rapidly evolving field, and since the
chapters in this book were last revised, between September and November
2004, there have been numerous developments in the various jurisdictions
and areas of law covered in this book. We could not, in the late stages of
production, provide a comprehensive update of all of these developments,
but some of them were sufficiently important and relevant to the chapters in
this book as to warrant a brief mention in a postscript.


I. United Kingdom: the House of Lords rules on indefinite
detention of non-nationals
On 16 December 2004, the House of Lords released its landmark decision in
A. v. Secretary of State for the Home Department.1 The question in this case
was whether the provisions in Part 4 of the Anti-terrorism, Crime and
Security Act 2001 (ATCSA), which effectively permitted the indefinite deten-
tion of non-nationals of the United Kingdom who were suspected of being
involved with international terrorism but who could not be deported, since
they might be tortured in the receiving country, were inconsistent with the
UK™s obligations under the European Convention on Human Rights. The
UK had formally derogated from Article 5(1)(f) of the Convention, which
permitted the detention of foreign citizens only when ˜action is being taken
with a view to deportation™. However, under Article 15 of the Convention,
measures derogating from Convention obligations in ˜time of war or other
public emergency threatening the life of the nation™ were permitted only ˜to
the extent strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with its other obligations under inter-
national law™. So the question before the House of Lords was whether there


We are grateful to Paul Tan for his superb research assistance, and to William C. Banks, Kevin
Davis, Helen Fenwick, Colin Harvey, Gavin Phillipson, C. H. Powell, Alan Khee-Jin Tan and
V. Vijayakumar, for their helpful suggestions regarding this postscript.
1
[2004] UKHL 56.

625
VICTOR V. RAMRAJ, MICHAEL HOR AND KENT ROACH
626

was a public emergency threatening the life of the nation and whether the
measures in ATCSA were strictly required and consistent with the UK™s
obligations under international law. The majority of the House of Lords
were prepared to defer to the determination of the executive or to assume
provisionally that there was, post-9/11, a public emergency that threatened
the life of the nation; however, they held, in view of the fact that British
citizens similarly suspected of involvement in international terrorism were
not subject to indefinite detention, that the detention measures aimed at
non-nationals were not ˜strictly required™ and disproportionate, and so did
not constitute a valid derogation.2 A majority of the Law Lords also found
that in derogating only from their right to liberty, the differential treatment of
non-nationals was discriminatory and thus in breach of the UK™s obligations
under Article 14 of the European Convention. The House of Lords quashed
the Order derogating from the Convention and issued a declaration of
incompatibility in respect of the s. 23 detention provision in ATCSA.
In light of this ruling, the government tabled new legislation in Parliament
to deal with suspected international terrorists within the parameters established
in A v. Secretary of State for the Home Department. The proposed legislation
allowed the Home Secretary to impose on suspected terrorists a range of
derogating control orders, including house arrest, and non-derogating orders,
including restrictions on movement, association and the use of various tele-
communication devices. Crucially, the Bill applied to both non-national and
British, who could neither be deported nor put on trial. The Bill faced consider-
able opposition, particularly in the House of Lords. Among the concerns was
that the control orders ought to be imposed not by politicians or the executive,
but by judges. The House of Lords eventually forced concessions from the
government, including a greater judicial role in and an increase in the burden
of proof for the imposition of derogating control orders. No derogation has
yet been sought, and therefore derogating control orders cannot yet be
activated. The Bill has now come into force as the Prevention of Terrorism
Act 2005,3 but is subject to three-month reviews and expiry in a year™s time
unless it is renewed.
The concerns expressed in A v. Secretary of State for the Home Department and
the legislative controversy and eventual response, were largely anticipated by the
contributors to this book. For instance, Colin Harvey (in Chapter 8) stressed
the importance of keeping the asylum system and national security separate, a


2
Lord Hoffmann, in contrast, found that there was no public emergency threatening the life
of the nation in the first place: ˜This is a nation which has been tested by adversity, which
has survived physical destruction and catastrophic loss of life. I do not underestimate the
ability of fanatical groups or terrorists to kill and destroy, but they do not threaten the life
of the nation™ (at para 96).
3
2005 c. 2.
POSTSCRIPT: SOME RECENT DEVELOPMENTS 627

point implicitly acknowledged by some of the Law Lords in holding that the
right of the government to control immigration and distinguish between non-
nationals and nationals in the immigration sphere was not decisive of the
discrimination issue relating to indefinite detention, ˜as this was not at its
heart an immigration issue™.4 Similarly, Helen Fenwick and Gavin Phillipson
recognized that the UK™s counter-terrorism scheme is ˜open to the criticism
that it fails the test of proportionality™.5
Yet in the wake of A v. Secretary of State for the Home Department and the
Prevention of Terrorism Act, concerns persist about the ruling.6 Harvey
remains cautious in his assessment of the ruling, observing that the ruling
˜is significant but its precise impact will need to be assessed carefully™.7
Fenwick and Phillipson observe that derogating orders may still not achieve
Convention compliance, assessment of which ˜will depend on the security
situation at the time when the derogation order was sought and the derogating
orders activated™.8 They also express concern that the House of Commons was
unable to defeat the Government on the 2005 Act (the concessions, they point
out, were forced by the unelected Lords), and that the legislation is again
˜immensely overbroad™.9 Fenwick and Phillipson express their concern in
these terms:
Most notably, in what is meant to be a response to the lapse of Part 4 of the
2001 Act, which applied only to international terrorism and was only used
against al Qaeda, the 2005 Act applies to all terrorists, including, for
example, animal rights extremists, etc., and thus for the first time brings
all these groups within a scheme outside the criminal justice system, that
allows for punishment (in effect) without trial. Once again, we will be
dependent upon executive restraint in exercising the powers, and, to an
extent, upon judicial review, to keep them within reasonable and propor-
tionate limits, though the terms of the legislation itself will in many
instances, render this difficult to achieve.10
The dialogue between the government and the judiciary concerning the
appropriate legislative response to international terrorism seems destined
to continue indefinitely. There is perhaps good reason to remain sceptical
of the merits of this dialogue. Yet this institutional exchange may be what
it takes to encourage the government, perhaps incrementally, ˜to tailor

4 5
Lord Scott of Foscote at para 134. Chapter 21, in this volume, at 459.
6
See, for example, David Dyzenhaus, ˜An Unfortunate Outburst of Anglo-Saxon
Parochialism™ (2005) 68 Modern Law Review 673, criticizing Lord Hoffmann™s speech
for what Dyzenhaus describes as his ˜equation of human rights with the values of the
common law constitution™ (at 674). See also, in the same volume of the Modern Law
Review (654“680), other commentaries on A v. Secretary of State for the Home Department
[2004] UKHL 56 by Tom R. Hickman, Stephen Tierney and Janet L. Hiebert respectively.
7
Personal correspondence with the editors, 21 June 2005.
8 9
Ibid. 10 Ibid.
Personal correspondence with the editors, 9 June 2005.
VICTOR V. RAMRAJ, MICHAEL HOR AND KENT ROACH
628

provisions more precisely to the particular emergency in order to avoid
unnecessary impairments of human rights™.11 The dialogue also reaffirms
the need, noted in the introduction to the book, for students of global anti-
terrorism law and policy to be familiar with the multiple instruments available
to combat terrorism. The House of Lords™ decision concerning the use of
immigration law resulted in Parliament enacting new quasi-criminal law
legislation that applies to citizens and non-citizens alike. The results of this
dialogue will be subject to continued judicial review both in the United
Kingdom and, potentially, in the European Court of Human Rights.

II. The treatment of non-national terrorist suspects
in Canada and New Zealand
The House of Lord™s decision in A v. Secretary of State for the Home
Department can be contrasted with Charkaoui v. Canada, a decision made
by Canada™s Federal Court of Appeal in December 2004 upholding, under the
Canadian Charter of Rights and Freedoms, a security certificate process
available for non-nationals suspected of involvement with terrorism. As
discussed in Chapter 23, this process allows the executive to declare and
detain non-nationals as security risks subject to a special judicial review
procedure before a single judge to determine whether the executive acted
reasonably. The Court of Appeal recognized that the process, which allows
the government to present national security information to the judge without
the non-national being present and in some cases without even obtaining a
full summary of the information, ˜derogates in a significant way from the
adversarial process normally adhered to in criminal and civil matters™.12
Nevertheless, the Court of Appeal upheld the process by asserting that ˜the
threat of terrorism or a threat to national security does not represent or reflect
a situation of normality, at least not in our country™.13 This judgment seems
to recognize an emergency that has not been formally declared in Canada and
one that may never end.
The Court of Appeal noted that the British had devised an alternative
institutional arrangement, one that allows national security information not
disclosed to non-national detainees to be subject to adversarial challenge by a
security-cleared special advocate. Nevertheless, the Court of Appeal con-
cluded that the introduction of the special advocate procedure was a matter
for the legislature and not the judiciary. A few months after his failed Charter
challenge, however, Adil Charkaoui was released on strict conditions with the
presiding judge determining that after 21 months™ detention, ˜the danger has


11
Fenwick and Phillipson, Chapter 21, in this volume, at 459.
12
Charkaoui v. Canada 2004 FCA 421 at para 75. 13 Ibid. at para 84.
POSTSCRIPT: SOME RECENT DEVELOPMENTS 629

been neutralized™.14 Nevertheless, four other non-national terrorist suspects
are still detained in Canada under security certificates.
Similar issues about the detention of non-nationals found by the executive
to be a security risk have also occurred in New Zealand in relation to the case
of Ahmed Zaoui, who, as discussed in Chapter 24, was detained for security
reasons under immigration law despite having been granted refugee status.
In an important judgment, the Supreme Court of New Zealand in late
November 2004 interpreted the immigration legislation to allow the grant
of bail and detention in a place other than a penal institution. It stressed
presumptions of respect for the ˜ancient and important jurisdiction™ of the
courts to grant bail and of respect for international law with respect to
refugees.15 Mr Zaoui, like Mr Charkaoui in Canada, was subsequently
released subject to strict conditions, with the courts emphasizing the delays
of the security risk process and the difference between the standard for
removal of non-nationals as security risks and whether they presented a present
threat that required detention as opposed to court-supervised conditions.16
Nevertheless, the conditional release of both Mr Zaoui in Auckland and
Mr Charkaoui in Montreal raise questions about the original determinations
by the executive that they constituted security threats and the ability of
governments to deprive non-nationals of liberty on standards that are much
less demanding of the state and less protective of liberty than those used in
criminal law. These somewhat similar stories at opposite ends of the world also
underline the convergence that sometimes occurs in global anti-terrorism
law and policy.
At the same time, there is evidence of divergence between the approaches
taken by the Supreme Courts of Canada and New Zealand as to whether a
suspected terrorist could ever be lawfully deported to torture. As discussed in
Chapter 23, the Supreme Court of Canada indicated in 2002 that it would
generally be unconstitutional to deport a non-national to torture, but that
there might be ˜exceptional circumstances™17 that could justify such actions.
In June 2005, the New Zealand Supreme Court, in litigation brought by
Mr Zaoui, rejected the exceptional circumstances approach as inconsistent
with both international law and the New Zealand Bill of Rights.18 It also held
that the responsible ministers and Cabinet, and not an Inspector General of
the Security Services who reviews the security risk certificate, would have the
responsibility to determine whether there was a substantial risk of torture,
subject to rules of natural justice and requirements for reasons.19 It remains
to be seen whether the New Zealand Supreme Court will follow or depart

14
Re Charkaoui [2005] F. C. 248 at para 75.
15 16
Zaoui v. The Attorney General SC CIV 13/2004 at paras 37, 44. Ibid. at para 68.
17
Suresh v. Canada [2002] 1 S.C.R. 3 at para 78.
18 19
Zaoui v. The Attorney General [2005] NZSC 38 at paras 16, 90. Ibid. at para 92.
VICTOR V. RAMRAJ, MICHAEL HOR AND KENT ROACH
630

from the Supreme Court of Canada in deferring to executive determinations
about the risk of torture unless they are patently unreasonable.20 As with
so many topics discussed in this book, much will depend on the balance
and relation between executive and judicial power.
The high standards of proof required in the criminal law were reaffirmed
in Canada when in March 2005 a judge acquitted two men accused of
conspiracy to commit murder in relation to the bombing of an Air India
flight in 1985 that killed 329 people. The trial judge had heard the evidence
without a jury in a complex sixteen-month trial. He concluded that although
the state had proven beyond a reasonable that a bomb had been placed on
the plane in Canada, it had not proven that the two men were part of the
conspiracy. Evidence of political and religious motive was considered in the
case, but the trial judge concluded that such motives were ˜shared by countless
other Sikhs throughout the world and by an unknown number in British
Columbia™.21 In reaching what was a very unpopular verdict, the trial judge
stressed that the requirement of proof beyond a reasonable doubt ˜is the
essence of the Rule of Law and cannot be applied any less vigorously in cases
of horrific crimes than it is with respect to any other offence under the Criminal
Code.™22 This case underlines the different treatment received in Canada by
those accused of criminal acts of terrorism and those subject to immigration
security procedures.

III. Further developments: South Africa, the United States,
India and Southeast Asia
The South African anti-terrorism bill, discussed by C. H. Powell in Chapter 25,
has now been enacted and proclaimed into force as a law, styled the Protection of
Constitutional Democracy against Terrorism and Related Activities Act 2004.23
Although it exempts armed struggles for national liberation, self-determination
and independence against colonialism or occupation by foreign forces that are
conducted in accordance with the principles of international law from its
definition of terrorism,24 it contains a broad definition of terrorism that applies
to politically motivated acts of property damage and other economic harms.25 As
in Australia, Canada, Hong Kong and New Zealand, South Africa™s broad
definition of terrorism was in part inspired by the broad definition of terrorism
in the United Kingdom™s Terrorism Act 2000.26 This suggests that national
legislation, as well as international and regional directives, can influence the
development of anti-terrorism laws throughout the world. As discussed in

20
Suresh v. Canada at para 41. 21 R v. Malik and Bagri 2005 BCSC 350 at para 1238.
22
Ibid. at para 662. 23 Act No. 33 of 2004. 24 Ibid. s.1(4). 25 Ibid. s.1 (xxv).
26
K. Roach ˜The Post 9/11 Migration of the Terrorism Act 2000™ in Sujit Choudhry (ed.),
The Migration of Constitutional Ideas (Cambridge University Press, forthcoming).
POSTSCRIPT: SOME RECENT DEVELOPMENTS 631

Chapter 25, South Africa™s broad definition of terrorism, as well as other features
of its law, are likely to be subject to constitutional challenge and judicial
interpretation.
In the United States, Congress enacted an Intelligence Reform and
Terrorism Prevention Act27 in December 2004 that reorganizes the American
intelligence community, establishing a Director of National Intelligence, a
National Counterterrorism Centre and improved intelligence capabilities
within the Federal Bureau of Investigation. It also addresses aviation28 and
maritime security, border and immigration controls, and the prevention of
terrorist access to weapons of mass destruction. The new legislation also
provides for a Privacy and Civil Liberties Oversight Board. This law continues
the trend recognized by William C. Banks in Chapter 22 of ˜the largest
overhaul of government structure since World War II™ in response to terrorism,29
as well as a comprehensive approach to the risks of terrorism. It remains to
be seen how effective the massive reorganization of American government
around counter-terrorism will be in preventing acts of terrorism in the
United States.
This law also revisits some laws made immediately after 9/11 in the USA
Patriot Act. As Kevin Davis offers in an update of his commentary in Chapter 9:
The legislation clarified the mental elements of the offence of providing
material support to a foreign terrorist organization. It is now clear that
under this provision a defendant must have knowledge either that the
organization has been designated as a foreign terrorist organization or
that it engages or has engaged in specified activities. This provision has
also been amended to indicate that it is to be construed in a fashion that
does not abridge rights granted under the First Amendment to the United
States Constitution. On another front, the new legislation also amended the
procedure for designation of foreign terrorist organizations. Specifically, it
added procedures allowing an organization to petition for revocation of a
designation and requiring a review of an existing designation after five
years if no petitions for review have been made.30

It will be interesting to see if other countries revisit aspects of laws enacted in
response to 9/11 and Security Council Resolution 1373.
American counter-terrorism efforts are, of course, not limited to the home
front. In May 2005, Congress attached a rider that supplemental funds for the


27
Pub. Law. No. 108“458.
28
Additionally, on the aviation security front, Alan Khee-Jin Tan advises us in an update to
Chapter 11 (in personal correspondence with the editors, 27 June 2005) that the United
States has extended the date for the implementation of biometric passports for 27
countries in the Visa Waiver Program to 26 October 2006: see http://www.dhs.gov/
dhspublic/display?content¼4542.
29
At 490. 30 Personal correspondence with the editors, 28 June 2005.
VICTOR V. RAMRAJ, MICHAEL HOR AND KENT ROACH
632

global war on terror should not be used for ˜torture or cruel, inhuman, or
degrading treatment or punishment that is prohibited by the Constitution,
laws, or treaties of the United States™.31 Despite this, reports continue to
surface with disturbing regularity about the abuse of those detained at
Guantanamo Bay and elsewhere. Reports of abuse of the Quran and humiliation
of prisoners also fuelled widespread animosity. Concerns have also been raised
that the American-led occupation of Iraq has helped re-vitalize al Qaeda
with almost daily bombings by insurgents in Iraq. These events underscore
some of the difficulties discussed in the first Part of this book in distinguishing
terrorism and counter-terrorism and between legal and extra-legal approaches
to combat terrorism.
In India, whatever euphoria there was over the repeal of the Prevention of
Terrorism Act (POTA) by the incoming Congress-controlled government in
late 200432 has been considerably dampened by the institutionalization of
what critics say are very similar provisions in the Unlawful Activities
(Prevention) Amendment Ordinance 200433and subsequently, the Unlawful
Activities (Prevention) Amendment Act 2004.34 Meanwhile, existing POTA
prosecutions are still making their way through the judicial system, with the
Supreme Court in two notable cases upholding the denial of bail.35
Attention in Indonesia has continued to focus on the outcome of the latest
round in the prosecution against the alleged Bali bombing mastermind, Abu
Bakar Bashir, who was sentenced to 30 months™ imprisonment on 3 March
2005 for having ˜approved™ of the bombing.36 This has been upheld on appeal
and is expected to be argued before the Supreme Court shortly. He was,
however, acquitted of more serious charges. The relatively short term of
imprisonment has sparked off an intense controversy between critics who
say that this is evidence of the law malfunctioning in favour of terrorism, and
those who argue that this merely shows that genuine due process prevails in
Indonesia.
Without a doubt, the single most significant development in Southeast
Asia has been the flare-up of the insurgency in the south of Thailand, a
jurisdiction not specifically covered in this book. An escalation of violence
has been met with measures ranging from a declaration of martial law in
early 2004, to the setting up of an Independent Commission for National


31
Pub. L. No. 109“13.
32
By the Prevention of Terrorism (Repeal) Ordinance 2004 (Ordinance 1 of 2004), and
subsequently, the Prevention of Terrorism (Repeal) Act, 2004 (Act 24 of 2004).
33
Ordinance 2 of 2004. 34 Act 29 of 2004.
35
Maulavi Hussain Haji Abraham Umarji v. State of Gujarat (2004) 6 SCC 672 and State of
Tamil Nadu v. R. R. Gopal (2003) 12 SCC 237.
36
˜Cleric Bashir appeals to Indonesian supreme court™, Reuters 21 June 2005, http://www.
alertnet.org/thenews/newsdesk/JAK63311.htm.
POSTSCRIPT: SOME RECENT DEVELOPMENTS 633

Reconciliation.37 The government appears receptive to a proposal by the
Commission that martial law should be lifted in favour of a new security
law. An analysis of the extent to which this possible development might make
a difference must remain the subject of a future work.

It is impossible to do justice in this short postscript to all the recent devel-
opments that have affected global anti-terrorism law and policy, but we hope
that this brief account will provide a sense of the dynamic, complex and
interconnected nature of a subject that will continue to command much
public and scholarly attention for the foreseeable future.

Singapore and Toronto
30 June 2005

37
˜Not yet reconciled™, The Economist 2 June 2005, http://www.economist.com/
displayStory.cfm?Story_id¼4033992.
INDEX




Abu Bakar Ba™asyir 300, 632 Algeria
Abu Hamza 175 anti-terrorism policy 582“3
Abu Sabaya 317 persecution 161“2
Abu Sayyaf 308“9, 310“17, 407 Allan, Trevor R. S. 87, 171
Acts of Indemnity, illegality 6, 65, 91, 94“5, 97, anti-Islamic legislation 9, 299, 561
98“106 anti-terrorism policy
Adams, Gerry 21 Africa 555“80
administrative decision-making Algeria 582“3
delegation 78“9 Arab States 581“608
discretion see discretion ASEAN 400“9
judicial review 79“80 Australia 534“52
aerial bombardment 17, 20 Canada 528“33
Afghanistan democracy 113“14
intimidation 27 East Africa 570“6
Northern Alliance 17 Egypt 591“4
sanctions 370, 382“4 European Union (EU) 425“52
Taliban regime 142 executive expertise 115“16
Africa Hong Kong 9, 368“95
anti-terrorism policy 555“80 India 9, 351“67
anti-terrorism regimes 562“76 Indonesia 295
bombings 559“60 Japan 327“50
domestic politics 559“61 Jordan 596“600
executive power 577“8 Kenya 570“3
external political pressure 560 Malaysia 273“94, 408
human rights 576“7 New Zealand 534“52
legislative background 561“2 Philippines 307“26
self-determination 558 Singapore 273“94
agents of state 25 South Africa 561“2, 563“70
airport security, screening 236“43 Syria 594“6
al Qaeda Tanzania 570“3
attacks of 9/11: 25 Tunisia 603“6
financing 192“3, 196 Uganda 560, 561, 570“3
Philippines 318“19, 415 United Kingdom 216“21, 455“89
threat to Canada 523“4 United States 200“4, 318, 490“510, 631“2
threat to UK 472, 475, 476, 478“9, 481, 627 see also counter-terrorism
threat to USA 491 Arab States
Al-Ghozi, Fathur Roman 301, 307“8 anti-terrorism policy 581“608


635
INDEX
636

Arab States (cont.) Ministerial Meeting on Transnational Crime
human rights 584“5 (AMMTC) 403“4
legislative themes 585“8 non-discrimination 408
regional context 581“5 regional cooperation 399“424
Suppression of Terrorism Convention root causes 408, 414“18
(1998) 582, 588“91 Russian Federation 405
terrorism defined 587“8, 588“91 Security Community (ASC) 412
Argentina Senior Officials Meeting on Transnational
aftermath of ˜Dirty War™ 614“20 Crime (SOMTC) 404
disappeared ones 613, 614 transnational crime 409
DNA tests 619“20 US foreign relations 399, 407“8, 409“14,
historical background 610“12 422“4
international humanitarian law asylum seekers
617“19 asylum law 158“76
international terrorism 620“3 bail 174
legal tools/illegal practices 621“3 claims 165
missing children 614“16, 619“20 culture of suspicion 158
Monteneros 610“11 destitution 165“6
official complicity 9, 623“4 fairness 5, 152“78, 164“7
pardons 616“17 fast-track procedure 164
res judicata 616 judicial review 154, 167, 177
state terrorism 610“20 legal framework 158“60
states of siege 612“13 national security 159, 169“71, 176, 626“7
unsuccessful investigations 620“1 principle of legality 167“75
Armitage, Richard 337 protection 158
Arroyo, Gloria Macapagal 310, 313, 319, 320, refoulement 159
323, 407 refugee status 160“4
Asia-Pacific Economic Forum 409 rule of law 157, 160, 177“8
Association of Southeast Asian Nations see also immigration law; refugees
(ASEAN) attacks of 9/11
anti-terrorism policy 400“9 al Qaeda justification 25
ASEAN+3 (APT) 404, 423 Canada 511
ASEAN Regional Forum (ARF) 399“400, Commission Report 7, 8, 112, 135, 148
402, 405“7, 412 criminal prosecutions 144
bilateral agreements 406“7, 410 financing 196
capacity-building 409 Germany 144“5
China 404, 405 immediate target 28
conflict avoidance 399“400 intelligence failure 136
cooperation/real politik 422“4 moral meaning 32
cooperation/sovereignty 418“21 responses see post-9/11 responses
counter-terrorism 403“9 symbolic targets 29
Economic Community 419 target audience 29“30
economic progress 409 attainder 87“8
European Union (EU) 405 Australia
financing of terrorism 405“6 anti-terrorism policy 534“52
Free Trade Area (AFTA) 419 communist groups 545“6
India 405 counter-terrorism 538“44
information-sharing 403, 407, 410 historical parallel 545“6
international law 421“2 human rights 536“7
international organizations 413“14 intelligence gathering 541“3
maritime terrorism 402, 403, 406, 409 police questioning 543
INDEX 637

rule of law 535“7 Campbell, Duncan 221
state laws 543“4 Canada
terrorism defined 539 Air India bombing (1985) 512, 514, 518, 630
terrorist organizations 539“40 al Qaeda threat 523“4
Aventajado, Roberto 309 Charter of Rights and Freedoms 514,
aviation security 518, 526, 628“9
air marshals 229“33 criminal law 513“21
arming pilots 233“4 financing of terrorism 517
biometric technology 203, 227, 228, 237“9 forfeiture 189
CAPPS II 201, 207, 210“14, 215, 239, grounds of exclusion 521“2
240“1, 498 immigration law 521“8
cockpit doors 235“6 investigations 518“19
costs 231“2, 235 investigative detention 522“4
European Union (EU) 227, 229“30, 237 judicial review 516“17, 524
explosive detection systems (EDS) 236, 237 lists of terrorists 516“17
harmonization 243“5 non-discrimination 520
Hijacking Convention (1970) 261 preventive detention 517“18
Indonesia 296“7 public safety and security 528“32
liabilities 231, 234 refugee policy 527
machine readable travel documents Royal Canadian Mounted Police (RCMP)
(MRTDs) 228, 238“9 519“20
overview 225“6 rule of law 630
passenger information 237“42 security 524“7
passenger name records (PNRs) 213, 239, security certificates 629“30
241“2 standard of proof 630
post-9/11 responses 226“43 terrorism defined 513
recent developments 225“47 terrorist organizations 115, 184, 186,
risk perception 232, 233 511“12, 516
´
screening 236“43 Carrio, Alejandro D. 609“24
United States 201, 207, 210“14, 226“7 Cassese, Antonio 54“8
watch lists 210, 238, 239 Castro, Fidel 21
aviation terrorism charities 184“5, 193, 196
Lockerbie disaster (1988) 47“8, 49“50 China, ASEAN 404, 405
Russian Federation 147 Clarke, Richard A. 112
colonialism, terrorism 16
Badawi, Abdullah 416, 417 combatants
Banks, William C. 123, 490“510, 609“24, 631 nationalist/separatist movements 25“6
Beck, Ulrich 135 shifting designations 26
Beckman, Robert C. 248“69 communications interception
biometric technology ECHR (1950) 218
aviation security 203, 227, 228, 237“9 India 361
maritime security 253 United Kingdom 217“18
black hole approach 65, 86, 89, 92, 130, 131 United States 200, 216
Blake, Nicholas 167 communist groups
Bonanate, Luigi 31 Australia 545“6
Bowyer Bell, J. 31 Japan 330, 336
Braithwaite, John 147 Malaya 274“7
Brownlie, Ian 38 Philippines 318, 321
Burke, Edmund 19 constitutional law
Burnham, Gracia 309“10, 317 amendment 90“1
Bush, George W. 141“2, 150, 256, 267, 336, 422 India 362“5
INDEX
638

constitutional law (cont.) criminal law
Japan 328, 332“3, 338“42, 345“7, 348“50 Canada 513“21
Philippines 315“17 customary law 49“50
rule of law 155“8 dangers 129“30, 137“40
constitutionality financing of terrorism 135, 138
separation of powers 78“81 instrumental/normative limits 136“41
state of emergency 68, 77 Japan 327
Convention for the Suppression of the less restrained alternatives 141“5
Financing of Terrorism (1999) 135, 180, memorial style 132
182“3, 189, 403, 440 miscarriage of justice 130, 139“40, 142
Convention for the Suppression of Unlawful new laws 129, 131“5
Acts Against the Safety of Maritime normative dangers 139
Navigation (SUA) (1988) penalties 134, 137
applicable acts 262 Philippines 324
maritime security 261“6 reactive legislation 131“2
Protocol (proposed) 262“6 restraints 130
ship-boarding 265“6 safeguards 140“1
Council of Europe South Africa 565“8
ECHR see European Convention on Human terrorism offences 3, 38, 129“51
Rights (1950) United Kingdom 459“62
guidelines (2002) 537 criminalization of politics 132
counter-terrorism Cuba 17, 21
´
acts 22“8 Cuellar, Mariano-Florentino 194“5
additional qualities 30“2 cyber-attacks 206“7
application to terrorists 27
ASEAN 403“9 Davis, Kevin E. 179“98, 631
Australia 538“44 de Vries, Gijs 446
broader audience 23“4 death penalty
broader strategy 146“50 ECHR (1950) 463, 466
discourse 13“36 Indonesia 296
fear 23, 32, 33“4 Malaysia 290, 291
financing of terrorism 179“98 United States 134, 442
immigration law 142“4 delegation, administrative decision-making
justification 14“15 78“9
law and policy 1“2, 113“14 democracy
legitimate state responses 2“3 anti-terrorism law and policy 113“14
national security 22“3 liberal states 13“14, 18, 28, 34
over-reaction 327 representative democracy 26
persecution 169 deportation
political nature 24 national security 81“3
post-9/11 see post-9/11 responses 226“43 United Kingdom 463
purposefulness 24 Dershowitz, Alan 138, 535
pyramid approach 148 detention
special interests 27 immigration law 9, 141, 164“5
surveillance technology 199“224 preventive see preventive detention
symbolic targets 29 Dicey, Albert Venn
targets 28“30 Act of Indemnity 65
terrorism distinguished 32“5 administrative law 78“9
United Kingdom 459“79 see also aid from Parliament 93“5
anti-terrorism policy courts 157
crimes against humanity, terrorism 52“8, 137 political expediency 95
INDEX 639

spirit of legality 93“8 bilateral/multilateral cooperation 431,
state of emergency 6, 65“6, 83, 91“2, 155 439“40
supremacy of law, discretionary power capability/legitimacy 449“51
155“6 common foreign and security policy (CFSP)
discretion 426, 427, 428, 431, 434, 439, 448
judicial decision-making 74 conflicting positions 431
rule of law 79 Copenhagen Declaration (2002) 439
special legislation 93“5 Council of Ministers 428, 437
Donohue, Laura K. 13“36, 130 Counter-terrorism Co-ordinator 446“7, 450
Dower, John 339 data protection 212“13, 441“2
Dworkin, Ronald 75“7, 78, 140 Declaration of La Gomera (1995) 430
Dyzenhaus, David 65“89, 91“2, 99“100, 106, double criminality 432, 435
118, 121, 122, 130, 469 Eurojust 429“30, 436, 437“8, 441, 445
European Arrest Warrant 432, 435, 442, 443,
East Africa 448, 449
anti-terrorism policy 570“6 European Commission 429
prevention 570“3 European Criminal Record 445, 447
trial 573“6 European Police College (CEPOL) 429, 438
East Timor 42 Europol 426, 429, 437, 441, 445, 449
Echelon system 221“2 evaluation mechanism 438“9
Egypt, anti-terrorism policy 591“4 external measures 439“43
England, rule of law 66 extradition 432, 433, 435, 442
European Convention on Human Rights financing of terrorism 434“5, 440
(1950) Framework Decision (2002) 433“4, 443
Art.2 (life) 456 fundamental rights 434
Art.3 (degrading treatment) 162, 165“6, 463, future prospects 451“2
466, 467, 477 improved implementation 444“5
Art.5 (detention) 133, 143, 159, 164“5, 172, internal measures 432“9
457, 464, 625 joint investigations 436, 442, 443
Art.6 (fair trial) 165, 470, 471“2 judicial cooperation 429“30, 436, 437“8
Art.8 (privacy) 165 legal bases 425“8
Art.10 (expression) 174, 461 legislative measures 432“7
Art.11 (association) 461 Madrid attacks (2004) 425, 443“7
Art.14 (non-discrimination) 172, 477“8, 626 Mutual Assistance in Criminal Matters
Art.15 (proportionality test) 172, 459, 464, Convention (2000) 436, 443
467, 473, 475, 478, 481, 625 national capabilities 430“1
communications interception 218 new measures 445“6
derogations 133, 143, 159, 172, 457, 459, 464, new structures 438“9
473“6, 625“7 passenger name records (PNRs) 242, 441“2
fundamental rights 166“7 passports 227
Protocol 6 (death penalty) 463, 466 see also penalties 433“4
human rights Police Chiefs Task Force (PCTF) 429,
European Union (EU) 437, 450
Action Plan (2001) 432, 443, 444, 447 political bases 430“1
Action Plan (2004) 444, 448 post-9/11 responses 431“43
anti-terrorism policy 425“52 refugees 161“3
Article 36 Committee (CATS) 428, 432 Regulation 2580 (2001) 434
ASEAN 405 risk perception 430
assessment 447 specific measures 439
aviation security 227, 229“30, 237 structural bases 428“30, 437“8
bases for action 425“31 structural/operational measures 437“9
INDEX
640

European Union (EU) (cont.) pre-existing law 193
terrorism defined 433 prohibitions 181“7
third countries 440 reporting obligations 191
Treaty of Amsterdam (1999) 425, 426, scope of legislation 180“93
427, 448 substitution 196
Treaty of Maastricht (1992) 425“7 terrorist activity defined 182
TREVI cooperation 425, 428, 430 third parties 135, 138, 139
US foreign relations 440“3 United Kingdom 184
executive power wire transfer 192, 197
expertise 115“16 forfeiture
extraordinary circumstances, extra-legal asset seizure 556“7
measures 118 Canada 189
judicial deference 153, 160, 167, 173, 176 Hong Kong 378“80
national security 114“18 India 360
trust 116“18 legal rights 187
extradition South Africa 568
European Union (EU) 432, 433, 435, 442 types of property 189
international law 557 United Kingdom 189
Uganda 578 United States 189, 190 see also property
deprivation
fear France
counter-terrorism 23, 32, 33“4 asylum seekers 161“2
terrorism 23 Burke™s condemnation 19
Fenwick, Helen 191, 455“89, 627 head of state immunity 50“1
Fenwick, Mark 327“50 Reign of Terror 16
financing of terrorism Friedrich, Carl 106
1267 Committee 180, 183 fundamental rights
activities covered 181“6 ECHR (1950) 166“7
alternative remittance systems 192“3, 197 European Union (EU) 434 see also human
ASEAN 405“6 rights
Canada 517
Convention (1999) 135, 180, 182“3, 189, Garland, David 132, 133
403, 440 Germany
counter-terrorism 179“98 asylum seekers 161, 162“3
criminal law 135, 138 attacks of 9/11 144“5
definition 181“2, 182“3 global anti-terrorism, interplay of structures
deprivation of property 187“90 3“5
economic activity 138, 185 Global Aviation Security Action Group
European Union (EU) 434“5, 440 (GASAG) 228, 230, 237
Financial Action Task Force (FATF) 180, Goh Chok Tong 411, 417“18
191, 192, 372 government
hawala 192“3, 197 ˜honourable men™ 117
Hong Kong 372 trust 116“18
human rights 185 Green, L. C. 52“3
implementation/enforcement 194“5 Gross, Oren 66“7, 67“70, 78, 80, 81, 83,
Japan 327, 335 118, 130
legislative objectives 181 Guevara, (Ernesto) Che 31
lists of terrorists 7, 138“9, 183“4
measures, potential effectiveness 196“7 habeas corpus
mental elements 186“7 Malaysia 287
monitoring provisions 191“3 Singapore 282, 285
INDEX 641

United Kingdom 457 legal services 185
United States 85, 142, 148, 495“6, 497 national security 4, 81
Haddon, William 146 post-9/11 responses 421“2
Hague Convention (1970) 45“7 United States 421“2
Harding, Christopher 587 Huntington, Samuel 75
Hart, Herbert Lionel Adolphus 74
Harvey, Colin 152“78, 626, 627 Ignatieff, Michael 148
Hitler, Adolf 70“1, 72 immigration law
Hobbes, Thomas 77 asylum see asylum seekers
Hong Kong Canada 521“8
anti-terrorism policy 9, 368“95 counter-terrorism 142“4
Article 23 episode 384“8 detention 9, 141, 164“5
consultation 392“4 Special Immigration Appeals Commission
external imposition/internal need 391“2 (SIAC) 81“3, 121, 159, 170“1, 172,
financing of terrorism 372 173“5, 468“76
forfeiture 378“80 standard of proof 5, 142
implementation strategy 390“4 United Kingdom 143, 627
Law Reform Commission (HKLRC) 392“3 India
legislation summarized 376“82 anti-terrorism policy 9, 351“67
lists of terrorists 370 ASEAN 405
mens rea 375, 380“1, 390 bodily samples 360, 363“4
policy and practice 393“4 communications interception 361
post-9/11 responses 371“84, 389“90 confessions 361
pre-9/11 regime 368“70 constitutional law 362“5
security laws 368“90 forfeiture 360
terrorism offences 375“6, 380“1 institutional responses 355“9
terrorist acts 376“8, 390 Jammu and Kashmir 351, 352, 353, 355, 357
terrorist recruitment 375“6 judicial response 362“5
UN (Anti-Terrorism Measures) Ordinance Law Commission of India 358“9
(UNATMO) 373“82 legal responses 352“5
UN Sanctions (Afghanistan) (Amendment) legislation in practice 365“6
Regulations (UNSAAR) 382“4 legislation summarized 359“62
UN Sanctions Ordinance (UNSO) 369“70, legislative repeal 366“7
371“2, 393“4 National Democratic Alliance (NDA) 359
Hor, Michael 273“94 National Human Rights Commission
hostage taking (NHRC) 354, 355“8
Philippines 308“11 Prevention of Terrorism Act (2002) 359“67,
Russian Federation 147 632
Howard, John 534, 537 preventive detention 352
human rights terrorism defined 354“5
Africa 576“7 witnesses 361, 364
anti-terrorism policy 322“4, 421“2 Indonesia
Arab States 584“5 anti-terrorism policy 295
Australia 536“7 ASEAN security 412, 413
ECHR see European Convention on Human attempts 136
Rights (1950) aviation security 296“7
financing of terrorism 185 Bali bombings (2002) 134, 136, 295, 303“4,
Human Rights Act (1998) 7, 158, 175 534“5, 632
humanitarian protection 160 human rights 5, 134, 300“3
India 354, 355“8 Islam 416, 417
Indonesia 5, 134, 300“3 judicial review 303“4
INDEX
642

Indonesia (cont.) International Labour Organization (ILO),
Kopassus 303 identity documents 252“3
Kuningan bombing (2004) 304“5 international law
retroactive legislation 134, 136 agreements 556
terrorism offences 134, 136“7, 296 conflict 578
US foreign relations 401, 408 cooperation 557
weapons of mass destruction (WMD) 297 extradition 557
information technology history 43“7
automated data analysis 208 incompleteness 47“50, 50“1
critical infrastructure 206“7 maritime terrorism 266
data mining/harvesting 203, 204, parallel custom 47
208, 498 political controversy 38“43
Electronic Frontier Foundation (EFF) 207 proving a customary law regime 49“50
knowledge discovery 208 terrorism 37“63, 556“8
surveillance see surveillance technology terrorism defined 557“8
information-sharing treaty law and custom 37“8
ASEAN states 403, 407, 410 International Law Association (ILA),
post-9/11 responses 207“14 Committee on Terrorism 52“3
insurgent groups, sponsorship 17, 20 International Law Commission, Rome Statute
International Air Transport Association (draft) 59
(IATA) International Maritime Organization (IMO)
flight crews 234 Automatic Identification System
Global Aviation Security Action Group (AIS) 251
(GASAG) 228, 230, 237 Continuous Synopsis Record 251
harmonization 228“9, 243“5 Identification Number 251
Simplified Passenger Travel (SPT) 238, 240 International Ship and Port Facility Security
international armed conflict 321 (ISPS) Code 250“1
International Civil Aviation Organization International Ship Security (ISS) Certificate
(ICAO), see aviation security 250, 251
International Conference on Terrorism Legal Committee 262“3
(1987) 18 maritime security enhancement 249“50
International Court of Justice Port Facility Security Plan 251
Lockerbie case 48, 49“50 Port State Control 251
Nicaragua case 39, 49“50, 55 port/ship security 249“52
international crimes Ship Security Alert System 250
customary law 49“50 Ship Security Plan 250
Philippines 324“5 SOLAS Convention (1974) 249
International Criminal Court (ICC), statute see International Military Tribunal (Nuremberg),
Rome Statute Charter 53
International Criminal Tribunal Rwanda Iraq
(ICTR), Statute 56, 58 reconstruction 347“8
International Criminal Tribunal Yugoslavia US occupation 415, 422
(ICTY) war (2003) 141, 142, 501“2
Statute 55, 58 Irish Republican Army (IRA) 21, 32, 131, 139,
Tadic case 55 456, 474
International Customs Organization (ICO) Islam
255 anti-Islamic legislation 9, 299, 561
international humanitarian law, Argentina Indonesia 416, 417
617“19 Malaysia 417
international humanitarian law (IHL), terrorist moderate theology 415“16
organizations 312, 321“2 radicalism 414“18
INDEX 643

religious curricula 416“17 Canada 516“17, 524
Singapore 417“18 Indonesia 303“4
Southeast Asia 410“11, 414“18 limits of law 124“6
United Kingdom 456 national security 119“20
objections 119“20
Janjalani, Abduragak Abubakar 311“12, 317, prerogative 80
318, 319 unique role 120“1
Japan judiciary
anti-terrorism policy 327“50 hierarchy 82
Anti-Terrorism Special Measures Law normative constraints 6“7
(ATSML) (2001) 336“8, 344“6 jus cogens, state-sponsored terrorism 49
Ashida amendment 342 Juwana, Hikmahanto 295
Aum Shinrikyo 330, 332
banned organizations 331 Kadish, Sanford 104
Code of Criminal Procedure 327, 333 Kenya
communist groups 330, 336 anti-terrorism policy 570“3
constitutional law 328, 332“3, 338“42, burden of proof 575
345“7, 348“50 external political pressure 560
Criminal Code 327, 331 forfeiture 576
defence 340“3 penalties 576
external political pressure (gaiatsu) 333 terrorism defined 573“4
financing of terrorism 327, 335 Khalifa, Muhammad Jamal 318
Gulf War (1990“91) 343 Koizumi, Junichiro 328, 336, 337
international relations 9
Iraqi reconstruction 347“8 Lador-Lederer, J. J. 52“3
Molotov cocktails 330 law of the sea
Peace and Security of Japan Law (SASJL) interdiction principles 256“9
(1999) 343“4 right of innocent passage 258“9
Peacekeeping Operations Law (PKO) (1992) right of transit passage 259
343“4 UNCLOS (1982) 252, 257, 258, 259, 261
political violence 329“30 League of Nations 43“4
post-9/11 responses 327“50 legal order
Potsdam Declaration (1945) 339 core/penumbra 74“5, 76
pre-emptive action 347 dialogic approaches 176, 178
Public Security Commission (PSC) 331“2 experimentation 80
Public Security Investigation Agency (PSIA) indeterminacy 74
331“2 stability/flexibility 90“106 see also rule of law
Red Army Faction 329 legal positivism 74, 75“7, 78
religion 330, 334 liberal legal order 73, 75
sarin attack (1995) 330, 332 Liberia 260
Self-Defence Forces (SDF) 328, 333, 335“48 Libya 47“8
Subversive Activities Prevention Law (SAPL) Lim, C. L. 37“63
(1952) 327, 330“3, 343 lists of terrorists
Jemaah Islamiyah (JI) 273, 300, 301, 318“19, Canada 516“17
408, 418 executive compilation 4
Jordan, anti-terrorism policy 596“600 financing of terrorism 7, 138“9, 183“4
judicial decision-making, discretion 74 Hong Kong 370
judicial review Locke, John
administrative decision-making 79“80 extra-legal/constitutional 97
anti-terrorism policy 118“26 prerogative 69, 91, 95“8
asylum seekers 154, 167, 177 Lockerbie disaster (1988) 47“8, 49“50
INDEX
644

McGuinness, Martin 21 national courts
Madrid attacks (2004) incompleteness of international law 50“1
EU responses 425, 443“7 international terrorism 50“1
solidarity 444 timorous 51
Malaya national security
admissibility 275“7 asylum seekers 159, 169“71, 176, 626“7
communist insurrection 274“7 counter-terrorism 22“3
Emergency Regulations 274“7 deportation 81“3
Malaysia emergencies see state of emergency
anti-terrorism policy 273“94, 408 executive power 114“18
death penalty 290, 291 judicial review 119“20
habeas corpus 287 Malaysia 5
Islam 417 security considerations 123
law and terror 273“94 sensitive information 119, 120, 122
national security 5 Singapore 5
political parties 415“16 nationalist/separatist movements
preventive detention 277“88 combatant status 25“6
states of emergency 288“93 national liberation movements 41“3, 44
US foreign relations 401, 402, 411 political violence 3
Mani, V. S. 39“40 New Zealand
maritime terrorism anti-terrorism policy 534“52
Achille Lauro 131 Bill of Rights (1990) 535“6, 629
bilateral ship-boarding agreements 260“1 post-9/11 responses 547“51
container traffic 254“5 preventive detention 629“30
flags of convenience 265 terrorism defined 548“9
IMO see International Maritime terrorist organizations 549
Organization Nicaragua, Contras 17, 20, 39
international law 266 non-combatants
international responses 248“69 redefinition 25
Malacca Straits 402, 403, 406, 411 terrorism 24“6
port/ship security 249“55 victims 26
post-9/11 responses 248“9 non-discrimination
Proliferation Security Initiative (PSI) 255“60 ASEAN states 408
proposed new offences 263“5 Canada 520
Security Council Resolutions 267“8 ECHR (1950) 172, 477“8
SUA Convention (1988) 261“6 Northern Ireland, special powers 456
suspect vessels at sea 255“66
United States 248
Oliverio, Annamarie 13“36
¨
Monar, Jorg 425“52
Osama bin Laden 30, 31, 32, 318, 319, 370, 371,
monitoring provisions
383, 415, 435
financing of terrorism 191“3
identity checks 191“2
objectives 191 Pakistan
reporting obligations 191 anti-terrorism policy 9
Montreal Convention (1971) 47“8, 49 persecution 163“4
moral equivalence 34 Palestine Liberation Organization (PLO) 20“1,
moral meaning 31“2 131
Mozambique 17 Palestinians
Murad, Abdul Hakkim 318 Muslim sympathies 410“11, 584
Musharraf, Pervez 418 state-sponsored terrorism 40
Myanmar, dictatorship 401, 402 Panama 260“1
INDEX 645

Parliament Japan 327“50
Acts of Indemnity 6, 65, 91, 94“5, 97, 98“106 maritime terrorism 248“9
sovereignty 93 New Zealand 547“51
spirit of legality 93“5 United States 207“14, 226“43, 248“9, 421“2,
passports 490“510
European Union (EU) 227 Powell, C. H. 555“80, 630
United Kingdom 158 prerogative power
United States 203 judicial review 80
´
Peron, Juan 610“11 legally uncontrolled 79
Pettit, Philip 113 legislative/judicial colonization 80
Philippines public acquiescence 97
Abu Sayyaf 308“9, 310“11, 311“17, 407 public good 69, 95“7
al Qaeda 318“19, 415 theory 95“8
anti-terrorism policy 307“26 preventive detention
arrest warrants 322 Canada 517“18
˜Balikatan 02-1™ 313“17 India 352
bilateral agreements 313“17 Malaysia 277“88
communist groups 318, 321 New Zealand 629“30
constitutional law 315“17 Singapore 121, 277“88
criminal law 324 subjective satisfaction 279, 281, 282
hostage taking 308“11 United Kingdom 119, 455, 456, 463“79,
institutional capacity 9 625“8
international crimes 324“5 United States 7, 84“6, 115, 119, 123, 123“4
International Peace Mission 310“11 privacy
Lamitan siege (2002) 310“11 European Convention on Human Rights
legislative initiatives 320“6 (1950) 165
maritime security 253 surveillance technology 199“224
Mindanao 308, 312, 319, 320 privatization 133, 135
Moro Islamic Liberation Front (MILF) 311, Proliferation Security Initiative (PSI) 255“60
317, 318, 319, 320, 321 property deprivation
Moro National Liberation Front (MNLF) confiscation see forfeiture
311, 312 financing of terrorism 187“90
Mutual Defense Treaty (1951) 313, 318 freezing 187
New Peoples Army (NPA) 318, 321 objectives 187“8
official complicity 9, 308“11, 312 procedure 190
ransoms 308, 309 seizure 187
search and seizure 322 types of property 188“9
terrorism 308“11 public good 69
US foreign relations 313“15, 318, 407 public order 174“5
Visiting Forces Agreement (VFA) 313“15,
318 Qaddafi, Muammar 50, 173
Phillipson, Gavin 191, 455“89, 627
Picard, Robert G. 28 Ramraj, Victor V. 107“26, 588
political/religious motives, terrorism defined 3 Rappoport, David 21
Pollock, Frederick 99 ratification
post-9/11 responses Acts of Indemnity 6, 65, 91, 94“5, 97, 98“106
aviation security 226“43 ex post 97, 98“106, 118
European Union (EU) 431“43 Raz, Joseph 155
Hong Kong 371“84, 389“90 refugees
human rights 421“2 anxious scrutiny test 162, 167, 173
information-sharing 207“14 Dublin Convention (1990) 161
INDEX
646

refugees (cont.) meaning 155“6
European Union (EU) 161“3 political rhetoric 156
exclusion clauses 159, 168“9 stability 90
particular social groups 163“4 state of emergency 72, 73“4, 75, 83“9
reasonable disagreement 162 tribunals 81“3, 121
Refugee Convention (1951) 159, 160, unlegalisable 84, 87
161“2, 163 value-based 155“6 see also legal order
safe third country rule 162“3 Russian Federation
serious non-political crimes 169 ASEAN 405
status determination 160“4 aviation terrorism 147
surrogate protection 163 hostage taking 147
well-founded fear of persecution 160“1
see also asylum seekers Saddam Hussein 491
regional organizations Sayyaf, Abdul Rasul 319
ASEAN see Association of Southeast Asian Schmid, A. P. 52

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