Fighting Terrorism or Catalyzing Terror? Case-in-point: the Australian Anti-Terrorism Bill 2005

--Ahaliya Dakshana

 

"What looks, smells, and kills like terrorism is terrorism."

Sir Jeremy Greenstock

British Ambassador to the UN

 

‘Terrorism’ is “easier to condemn than define” many have lamented.  Others have pointed to this linguistic indeterminacy as precisely the power of the term, available to be mobilized as a versatile Orwellian weapon against all enemies.  The term’s origins are often traced to the ideological forefather of the current ‘War on Terror’, Edmund Burke, in his diatribes against the Jakoben revolutionaries: “hell hounds let loose on the people”… a reign of “terror”.  Funnily, Burke never used the term against the French aristocracy and their reign bleeding the poor, executing dissidents and vanquishing ‘natives’ from Haiti to Senegal.  Today the term has gained purchase beyond the storming of the Bastilles although it continues to be used with that same unapologetic selectivity – stones thrown at Israeli tanks by Palestinian kids readily earn the term, but applying the same term to the tanks themselves remains controversial (and in some parts of New York, leave alone Hebron, downright suicidal!)  This is not too different from how terrorism was used against the ANC by no more deserving contender for the term than the Apartheid government in South Africa.  In essence, for much of the war years, the PTA in Sri Lanka profiled Tamils as terrorists, but those who tortured Tamils in CID interrogation rooms in Colombo, or aerial bombed schools in the Jaffna were absolved from the term.

 

Yet is selective (mis)use itself an argument to ditch the term and its many uses?  Don’t we need someway to identify those who plan, commit and fund the “peacetime equivalent of a war crime” (that’s the short UN legal definition of terrorism) so that we can deter and fight acts of terror, prosecute those responsible, and protect their victims?

 

This question was revisited in the Sri Lankan diaspora recently with the crackdown on the LTTE/TRO in Australia on the basis of a series of “anti-terrorism” measures pushed through by John Howard.  The 2005 Anti-terrorism bill, the latest and, arguably the most controversial of these measures, was proposed as the post-July 2005 London bombing complement to the legislation that came into place post-9.11; neither bill can be accused of being over zealous regarding civil liberties.  In addition to making provisions for detention without charges, monitoring of lawyer-client conversations, preventive detention and control orders that can prohibit the detained/arrested from informing lawyers/family members of their situation, in camera trials and the like, it also permits organizations like the LTTE and TRO to be banned by executive fiat.   The classification as a banned organization entails criminal offenses for anyone involved with such organizations in varied capacities (including fundraising, advocating, praising or counseling such an organization); this also has a retrospective reach that covers those affiliated with organizations that are now labeled and banned as ‘terrorist’ even if they were not classified as such at the time of involvement.

 

Empowered by these kind of measures, a couple of months back, the Australian police initiated a dragnet operation that went after many supporters of the TRO and the LTTE in the Sri Lankan Tamil diaspora; this may have been the widest ranging international sting against TRO and LTTE supporters in recent years.  It took in a number of people with varying levels of affiliation – from kalai villa organizing suburban doctors who donate their pocket change to the LTTE, to TRO operatives who had been involved in fundraising post-tsunami.  One of the most interesting aspects of the operation was that it foregrounded the fact that ‘terrorism’ was not the province of a gun toting cadre in the Vanni jungle; rather ‘terrorism’ was also enabled by your child’s dentist; your neighbor’s accountant; the engineer who works at the plush downtown office; the “bleeding heart” tsunami fundraiser.  Not surprisingly financial connections were often the key link between these individuals (many Australian citizens now) and the LTTE (sometime money channeled via the TRO, sometimes directly).

 

How should we view these arrests and seizures?  Do they advance human rights within the Tamil community (within Sri Lanka and without)?  Are there other ways to connect the dots between the Australian dentists and the vanni cadre without legitimizing the Orwellian aims of either the Australian or Sri Lankan state?

 

Many observers have argued that the only way to ensure some level of democratic accountability with the LTTE is to address the money chain, i.e. to ensure that the LTTE is more dependent on the local Tamil community in the North and East for support [1] .  Instead, in the current context, a ready stream of funding from the diaspora insulates the LTTE from local accountability.  The current situation is a case in point, where despite local opposition to war international funding allows the LTTE to access arms and escalate the conflict purely on the basis of military considerations.  Local support for peace appears to be irrelevant to these calculations.  If anything, internal tensions in the East and elsewhere has served to make the LTTE more determined to consolidate its position militarily given loss of support within the Tamil community.  Unlike the early days of the militant movement today many new recruits have to be forced to join; many Tamil civilians in the North and East are increasingly reluctant to allow their homes to be used for safe houses and/or to assist in other ways.  In much of the North and East, from barber shops to living rooms, the fond references to ‘our boys’ that were ubiquitous in the early eighties have now been replaced by anxiety ridden references to ‘the leader’ as people looks over their shoulder to see who may be listening (– and this is just in public; in private the dominant discourse is ?o@#$/*!)

 

Guerilla movements from Vietnam to Nicragua to South Africa have relied on networks of local support to inflict important defeats on enemies empowered by large military budgets.  Arguably, this was also the case with the defeat of the IPKF and the Sri Lankan army in many battles over the past two decades.   However, and this became the more important factor as time went on, the LTTE also had the added weapon of funding – initially from the Indian state, perhaps some from the drugs/arms trade, but also, critically, from the diaspora in places like Connecticut, Toronto, London and Melbourne.  Thus, if this funding route is choked off, it will undoubtedly be a significant consideration for the LTTE in calculating if it has the military strength (financial resources, popular support etc.) to abandon the peace talks process to wage an unpopular war.  This then is the dilemma: should one mobilize the international anti-terrorism push to crack down on doctors in Connecticut and Melbourne writing checks from their suburban palaces to assist the LTTE recruit children in Batticaloa?

 

Any notion of accountability worth its guns would see responsibility for child recruitment, political assassinations and the like as multi-layered – those responsible are not only the LTTE cadre recruiting children at gunpoint, but also the commanders that gave the cadre orders and the international funders who paid for those guns.  Moreover, if anti-terrorism legislation in countries like Australia are the means by which those international funders can be held responsible for their actions, then why not?

 

Civil liberties concerns would suggest that there are many reasons why not.  We have already outlined some of the more draconian provisions of the Australian bill.  From Australia to Sri Lankan, anti-terrorism legislation results in empowering the state’s ability to wield terror, crush dissent and persecute minorities.  Moreover, post-9.11, the discourse of terrorism has been mobilized in ways that cannot be separated from a global geo politics dynamic.  The invasion of Afghanistan and Iraq in the name of fighting terrorism are signposts of today’s imperial zeitgeist. 

 

One modest solution that I would like to advance is to leave aside the special mechanisms of ‘anti-terrorism’ legislation and return to the realm of criminal law – in most legal systems, the fact that criminal sanctions infringe on fundamental freedoms means that this is an area of law that has developed the very highest due process protections for alleged defendants.  Thus we can draw on criminal law traditions to ensure that we pursue accountability, but without infringing on basic due process norms.  But this presumes a well functioning system for the administration of justice; However, in the North and East of Sri Lanka accessing the rule of law is impossible even for a low stakes issue such as an LTTE cadre running a red light; pursuing something like child recruitment in the courts would be like Alice appealing to the Queen of Hearts for justice in Wonderland.  Moreover, recognizing that acts of terror such as child recruitment are not ordinary crimes, we would need to modify the conventional criminal justice methodologies to address command responsibility and, indeed, the multiple layers of accountability that we referred to above.  This includes the interstate nature of collaboration and collusion that make such crimes possible -  to allow us to bring prosecutions in Melbourne even if the Queen of Hearts makes it impossible in Sri Lanka.

 

This is not a model of accountability that is entirely novel; in fact, complex multi-state crimes such as drug trafficking have long required precisely this kind of international investigation and prosecution efforts.  Moreover, in recognition of its transnational implications there have also been a plethora of international treaties that have provided for some measure of universal jurisdiction for crimes such as the narcotics trade.  This inter-state reach addresses not only the Alice in wonderland like quality of LTTE justice, but also the draconian statist nature of the anti-terrorism legislation within Sri Lanka.   Thus when the state is the culprit it may also open the door to state officials being prosecuted in third party locales even if the local prosecutor does not have the requisite political will/political independence to take on acts of terror by the state.

 

Over the last decade, advances in international human rights law and humanitarian law have led precisely in the direction of advances in international criminal law.  For some this culminated in the International Criminal Court (ICC) but for many the ICC mechanisms still remain out of reach.  This includes our particular case because Sri Lanka has not ratified the ICC.   In that context we may want to revert to the model of complex international crimes rather than go the route of anti-terrorism mechanisms.  The civil liberties compromises of the latter make it an easier route for prosecutors; however, faustian bargains with the discourses and practices of ‘anti-terrorism’ may only cause terror in the name of suppressing it.

 

 

 

Ahaliya Dakshana is an independent writer and activist.