On 1st July 2002, the international community jubilantly celebrated the implementation of the International Criminal Court (ICC). However, for many experts and human rights associations, the relief of finally witnessing the establishment of the first permanent court of law that would be responsible for judging the perpetrators of the most serious crimes, was tempered by concerns and fear: fear that the ICC might be weakened and undermined even before beginning its work; fear of seeing democratic states, and those of the European Union in particular, fail to uphold their values and observe their international commitments; and lastly, fear of authoritarian states using the post-September situation to continue or even to reinforce their policies of violating the most fundamental rights of their citizens. Whilst fully sharing the horror produced by the terrorist attacks of 11th September, and despite being convinced that the duty of states is to guarantee the security of property and people, human rights defenders are troubled by measures that have been adopted in the name of the fight against terrorism. Certain decisions «entail a terrible regression that greatly exceeds the requirements of the fight against terrorism», according to a statement made in March 2002 by Mr. Sidiki Kaba, president of the IFHR.
He went on to say that «The imperative of respect for universal regulations with regard to the protection of human rights must be ceaselessly pursued. Actually, respect for human dignity is the factor that distinguishes an organised international community from fanatics of all kinds». The source of these misgivings is, in particular, the attitude of the United States government, of certain European countries, and of Arab governments. In its commitment to the fight against terrorism, which has been made the top priority of the official agenda, the American government has firstly established a special regime for the detainees at Guantanamo Bay in Cuba.
There are approximately 680 prisoners in the American base, who are detained in absolute isolation and unaware of the fate that awaits them. Concomitantly, the American government has set up a complex legal mechanism, geared to shielding its citizens from the jurisdiction of the International Criminal Court, whilst they are also running an intensive diplomatic campaign that involves proposing to other governments that they sign bilateral agreements whereby American citizens are specifically excluded from the jurisdiction of the ICC.
Simultaneously, and in a breach of both American and international law, the United States government has undertaken an all-out campaign of arrests of presumed terrorists, both on American soil and abroad. It has also encouraged illegal extraditions, deported foreign American residents to countries where the practice of torture is commonplace.
Who Defines «Terrorism»?
For many Arab regimes, and in particular for those that are engaged in fierce battles against internal opposition, the attacks of 11th September were a genuine godsend. The new American policy has come at a perfect time to legitimise flagrant violations of the rights that these regimes are responsible for upholding, and for them to obtain explicit approval for their repressive policies from western states. In Argel, Tunis and Cairo, for example, the official line is the same: «We have been dealing with terrorism for a long time and the western capitals have scarcely heeded our warnings.
Worse yet, they have provided terrorist movements with bases from which to work by offering asylum to the criminals that are on our lists of wanted suspects». By way of proof of their commitment to combating terrorism, the Arab states add that, well ahead of other states, they are the only ones to have drawn up a regional treaty related to this situation, the Arab Convention for the suppression of terrorism. Initially, this line appears to be entirely reasonable. Opposition groups with Islamic convictions have taken up arms in recent years in Algeria, Egypt, etc. Their actions have given rise to indisputable breaches of the most elementary rights, such as the right to life.
Furthermore, it is the right, and even the duty, of states to ensure and guarantee people’s security. It is still necessary to define precisely what is held to constitute terrorism and to wage the fight against it in accordance with universally accepted regulations. This is far from being the case where the Arab Convention for the suppression of terrorism is concerned, which was adopted in Cairo on 22nd April 1998 by the Council of Ministers of Justice of the League of Arab States, and which came into force on 7th May 1999, despite there not yet being an internationally accepted definition of what is understood to be terrorism. At the very time of writing, a bill for an international convention against terrorism is being discussed in the General Assembly of the United Nations.
Internal Agenda and the Events of 11th September
The Arab Convention defines terrorism as «Any act or threat of violence, whatever its motives or purposes, that occurs in the advancement of an individual or collective criminal agenda and seeking to sew panic among people, causing fear by harming them, or placing their lives, liberty or security in danger, or by seeking to cause damage to the environment or to public or private installations or property, or by occupying or seizing them, or seeking to jeopardize a national resource».
The Arab Convention has established several measures on the basis of this definition, which is vague and imprecise from the point of view of international law. Those measures include the creation of a computerised database on denominated «terrorist groups» in each country that is party to the Convention; the exchange of information between the police forces of the various countries; the surveillance of the movements of these «terrorist groups»; and, lastly, the extradition of anybody adjudged to be involved in «terrorist activity» by the justice system of their country of origin and who has taken refuge in another Arab country.
The quasi-systematic use of torture, the widespread practice of detention in solitary confinement, strict control by the executive power of the legal system and the existence of special courts of law (security courts, military tribunals, and so forth) in several of the region’s countries, which have been under a state of emergency for decades in some cases, mean that the worst must be feared (although there are no precise figures, Syria, Jordan and Sudan are known to have handed opponents over to other Arab states).
Other countries have also hastened to change their legislation. By royal decree, Jordan has passed a law that amends its Penal Code in such a way as to significantly broaden its definition of terrorism, and to define crimes against the state as any act «geared to destroying the political system of the kingdom or to encouraging resistance », and incriminate «anyone involved in an individual or collective act with the objective of altering the economic or social nature of the state or the foundations of society». Furthermore, it is in this context that Morocco finally joined up to the Arab Convention against terrorism, a text that it had apparently been reluctant to sign until that point. However, where most states are concerned it is not necessary to adopt new legislation.
The essential requirement is to obtain the approval of the international community for the supposedly anti-terrorist laws in force in their country. This is what emerges from an examination of the reports delivered to the Security Council by virtue of resolution 1373, adopted on 28th September 2001, which established an Anti-terrorist Committee and required all member states to provide it with a report on the measures currently in force or which they intend to institute for the purpose of combating terrorism.
Algeria’s report, issued to the Security Council on 27th December 2001,1 opens with a reminder that this country has «long suffered the ravages of terrorism, often in the face of the indifference and occasional complaisance on the part of certain sectors of the international community». It perceives the present international team effort as «corroborating its own [Algeria] consistently argued position on the nature of terrorism and its global implications. […] Algeria thus hopes for clearer recognition and support for its own efforts to combat a transnational scourge that targets the country directly». Carefully omitting to mention that the country is still governed by a state-of-emergency decree, the report emphasises the anti-terrorist provisions adopted by governmental decree in September 1992 and April 1993. In May 2003, Morocco’s new law on terrorism was passed by both the country’s chambers of jurisdiction with virtually no debate, less than a fortnight after the criminal attacks in Casablanca.
Faced with members of Parliament who were still suffering from the shock of one of the most horrible crimes in the history of the country, and parliamentary groups affected by an intensive media campaign, the government no longer needed to use the argument that it had put forward prior to 16th May, which consisted of bringing Moroccan law into line with international texts. That argument could not really have been upheld for very long, due to the fact that, as mentioned earlier, no comprehensive international text exists with regard to the fight against terrorism.
Extraditions and Deportations: the Hidden Face of the Anti-terrorist Struggle
On 14th March 2002, the daily newspaper Le Monde reported that Jordann and Egyptian nationals had been arrested in Indonesia at the request of the American authorities, and secretly extradited to their respective countries. Held in solitary confinement, these presumed terrorists were interrogated in the presence of investigators dispatched by Washington. These disgraceful activities show how the authoritarian states of the southern and eastern shores of the Mediterranean conceive the fight against terrorism.
It also gives an idea of the security cooperation that has been established, illegally and in collaboration with democratic states, or with the United States in any case. It is in this way that several citizens from the Middle East have come to be arrested and handed over to their respective countries of origin. This has been done at the express bidding of the American intelligence services, which feel these illegal deportations to be necessary due to the reliability of the state policies of the countries in question, as they are more accustomed to tracking down their own Islamic networks and are in a position to vouch for the confessions obtained. It is thus that Mahmoud Bin Ahmad Assegaf, a Kuwaiti who was claimed to be an Al Qa’eda financier, was arrested in Indonesia and extradited to his country. Likewise, Mohamed Haydar Zammar, a German Syrian, was apprehended in June 2002 in Morocco and handed over to Syria at the request of the CIA, although the German authorities were not informed of his detention until July.
At the same time, several newspapers reported that more than twenty people who had been in Afghanistan were being held in solitary confinement in Syria. The handing over of other suspects, mainly from Indonesia and Pakistan, but also from countries such as Somalia and Azerbaijan, and chiefly to Jordan and Egypt, have been reported by American and Arab newspapers (Christian Science Monitor of 26th July 2002, and Ac-Charq Al Awsat of 1st June, and 22nd, 23rd and 27th July 2002). In two reports on human development in the Arab world, published in 2002 and 2003, the United Nations Development Programme (UNDP) put the deep-lying causes of the underdevelopment of the region’s countries on record. The problems in question consist of gender discrimination, the collapse of the school and educational system and a lack of rights. Unfortunately, there are excessive grounds to fear that the violations of human rights that have been perpetrated as part of the «anti-terrorist» fight will only exacerbate the current situation.