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International Terrorism and Human Rights

Published online by Cambridge University Press:  20 January 2014

Sundaresh MENON
Sundaresh MENON*
Affiliation:
Supreme Court of Singapore, Singaporecjoffice@supcourt.gov.sg
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Abstract

Following the attacks of September 11, 2001, a line was crossed in the history of terrorism and political violence—many things we had until then taken for granted were lost. This paper analyzes the relationship between international terrorism and human rights and examines how these two concepts—which some suggest are antithetical—might appropriately be spoken of in the same breath even in the aftermath of those terrible attacks. The overarching thesis is that counter-terror efforts must be approached in a way that endeavours to achieve a positive relation to, and co-existence with, the system of human rights at both international and national levels. In this connection, Singapore's approach to counter-terrorism will be considered, providing food for thought on how far it achieves a balance between security and liberty.

Type
Articles
Information
Asian Journal of International Law , Volume 4 , Issue 1 , January 2014 , pp. 1 - 33
Copyright
Copyright © Asian Journal of International Law 2014 

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Footnotes

*

Chief Justice, Supreme Court of Singapore. This paper is adapted from the Harish Chandra Memorial International Lecture that I delivered in New Delhi on 18 April 2013. The views and ideas contained here are personal. They are informed by my career in the law, which included a stint as the Attorney-General. I am deeply grateful to my colleague, Mr Justin Yeo, Assistant Registrar of the Supreme Court, for his considerable assistance in the research and preparation of this paper and for his very valuable contributions to the ideas contained here.

References

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62. Ibid.

63. “Profile: Mohammad Ajmal Amir Qasab” BBC News (21 November 2012), online: BBC 〈http://www.bbc.co.uk/news/world-south-asia-12369352〉.

64. See the EU Council Framework Decision of 13 June 2002 on combating terrorism, online: 〈http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32002F0475&model=guichett〉. See also Marks, supra note 14 at 86.

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82. UN Charter, Preamble, online: 〈http://www.un.org/en/documents/charter/preamble.shtml〉.

83. Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), Preamble.

84. United Nations Office of the High Commissioner for Human Rights, “Basic Facts about the Universal Periodic Review”, online: OHCHR 〈http://www.ohchr.org/EN/HRBodies/UPR/PAGES/BasicFacts.aspx〉.

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100. In this context, it is observed that there is a certain institutional bias within the UN system that appears to favour ever more legislation as the only appropriate means by which international human rights law can be implemented at the domestic level. We must, however, consider that there is a distinction to be made between implementation (e.g. adopting a new piece of legislation) and compliance (e.g. substantively complying with the underlying obligation).

101. Alain PELLET, “Seventeenth Report on Reservations to Treaties”, Sixty-third Session of the International Law Commission, Geneva (26 April to 3 June 2011, 4 July to 12 August 2011), online: 〈http://untreaty.un.org/ilc/documentation/english/a_cn4_647.pdf〉 [Seventeenth Report on Reservations to Treaties].

102. Ibid., at 32.

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104. Ibid., at 1.

105. Ibid.

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108. Ibid., at 207.

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118. Ibid.

119. Ibid., at 7.

120. Ibid.

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127. Ibid. (emphasis in original).

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129. Ibid.

130. Ibid., at 209.

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141. Ibid., at 216 (Discussion of Rowe and Davis v. United Kingdom (2000) 30 European Human Rights Report 1).

142. Fenwick and Phillipson, supra note 56 at 482Google Scholar.

143. Marks, supra note 14 at 92Google Scholar.

144. Ibid.

145. Hicks, supra note 113 at 216Google Scholar.

146. This observation is made by prominent Egyptian human rights activist Saad Eddin Ibrahim in 2003: see Hicks, supra note 113 at 219Google Scholar, citing the remarks by Professor Saad Eddin Ibrahim at the “Human Rights Defenders on the Frontlines of Freedom” Conference (11−12 November 2003).

147. O'Connell, supra note 72 at 357Google Scholar.

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149. SCHARF, Michael, “Defining Terrorism as the Peacetime Equivalent of War Crimes: Problems and Prospects” (2004) 36 Case Journal of International Law 359 at 372Google Scholar.

150. Ibid., at 372.

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152. Scharf, supra note 149 at 371Google Scholar.

153. Ibid., at 373.

154. Ibid.

155. Marks, supra note 14 at 119Google Scholar.

156. Although in his inaugural address on 20 January 2009, he stated “Our nation is at war, against a far-reaching network of violence and hatred”.

157. WILSON, Scott and KAMEN, Al, “‘Global War on Terror’ is Given New Name” Washington Post (25 March 2009)Google Scholar, online: Washington Post 〈http://www.washingtonpost.com/wp-dyn/content/article/2009/03/24/AR2009032402818.html〉.

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159. BARNES, Julian, “Pentagon Lawyer Looks Post-Terror” The Wall Street Journal (30 November 2012)Google Scholar, online: WSJ 〈http://online.wsj.com/article/SB10001424127887324205404578151181874456280.html〉.

160. “Department of Justice White Paper” NBC News (4 February 2013), online: NBC News 〈http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf〉.

161. White Paper on JI Arrests, online: 〈http://www.mha.gov.sg/publication_details.aspx?pageid=35&cid=354〉 at 13.

162. “Foreign Hit Men (not Singapore Terrorists) Picked To Pull Trigger” The New Paper (20 January 2002) (Singapore tipped off the Philippines about Mike @ Al Ghozi); “Singapore Ready to Help Prove Terror Links” The Straits Times (23 February 2002) (Singapore prepared to facilitate direct investigations by Indonesian counterparts to confirm links existed between two Indonesian suspects and JI because the Indonesians denied such links); Singapore Parliamentary Debates, 2 March 2006, p. 10, online: 〈http://sprs.parl.gov.sg/search/topic.jsp?currentTopicID=00071382-ZZ&currentPubID=00075191〉 (2 March 2006 report) and 〈http://sprs.parl.gov.sg/search/report.jsp?currentPubID=00004760-WA〉 (21 April 2008 report); 21 April 2008, p. 36 (Information sharing with Australia, the Philippines, and Thailand); and “Going After Mike and Sammy” The Straits Times (16 April 2008) (mentioned that “Mike” (Al-Ghozi) and “Sammy” (Mohd Mansour Jabarah) were preparing to stage suicide attacks against several embassies in Singapore using truck bombs and that ISD identified them and shared findings with foreign intelligences leading to Jabarah's arrest in Oman and Al-Ghozi's arrest in the Philippines in early 2002).

163. Speech by Prime Minister Lee Hsien Loong at the International Conference on Terrorist Rehabilitation and Community Resilience, online: 〈http://www.pmo.gov.sg/content/pmosite/mediacentre/speechesninterviews/primeminister/2013/March/speech_by_prime_ministerleehsienloongattheinternationalconferenc.html〉 at para. 25 [Speech by PM Lee 2013]. See also White Paper on JI Arrests, supra note 161 at 9 and 17.

164. Deputy Prime Minister Teo's Parliamentary Speech on the Internal Security Act (19 October 2011) [DPM Teo's Parliamentary Speech 2011]; and “ISA is Needed Now More Than Ever” The Straits Times (20 October 2011).

165. DPM Teo's Parliamentary Speech 2011, supra note 164.

166. Ibid.

167. Internal Security Act, s.74(3).

168. Ibid., ss.74(4) and 74(5).

169. Ibid., s.74(5).

170. Ibid., s.74(4).

171. “Ministry of Home Affairs Press Statement on ISA” (16 September 2011), online: 〈http://www.mha.gov.sg/news_details.aspx?nid=MjA4NQ%3D%3D-Dmf5juIlzOA%3D〉.

172. Internal Security Act, s.8(1)(b).

173. Ibid., s.8(1)(b)(v).

174. Ibid., s.8(2).

175. Ibid., s.8(1)(a).

176. Ibid., ss.8(1)(a) and 8(2).

177. Ibid., s.8(2).

178. Speech by Deputy Prime Minister, Coordinating Minister for National Security, and Minister for Home Affairs, Mr Teo Chee Hean, “Working Together to Keep Singapore Safe and Secure” (Ministry of Home Affairs Committee of Supply Debate 2013), online: 〈http://www.mha.gov.sg/news_details.aspx?nid=Mjc4Mg%3D%3D-CJPkCAKXpRc%3D〉; at para. 31 [DPM Teo's Parliamentary Speech 2013].

179. Ibid., at para. 31. See the Press Releases detailing the release of JI Detainees on the Ministry of Home Affairs website, online: 〈http://www.mha.gov.sg〉. See also e.g. “Two Senior JI Members Detained under ISA” AsiaOne News (11 October 2012), online: AsiaOne News 〈http://www.asiaone.com/News/Latest%2BNews/Singapore/Story/A1Story20121011-377048.html〉.

180. See the press releases detailing the release of JI detainees on the Ministry of Home Affairs website, online: 〈http://www.mha.gov.sg〉.

181. DPM Teo's Parliamentary Speech 2011, supra note 164, and “ISA Is Needed Now More Than Ever” The Straits Times (20 October 2011), and “DPM Teo: Terrorism Act Lacks Pre-emptive Powers of ISA” The Straits Times (20 October 2011).

182. DPM Teo's Parliamentary Speech 2011, supra note 164; and “ISA Is Needed Now More Than Ever” The Straits Times (20 October 2011).

183. This point was made by Associate Professor Bilveer Singh of the S. Rajaratnam School of International Studies. See “Government's Statement on the Internal Security Act” The Straits Times (17 September 2011).

184. Michael HOR, “Singapore's Anti-terrorism Laws: Reality and Rhetoric” in Ramraj et al., supra note 56, 271 at 272.

185. It should, however, be noted that the basic instruments of international human rights law do establish certain essential substantive and procedural standards relevant to the issue. First, there must be freedom from arbitrary arrest or detention, and the requirement that arrest, detention, and other deprivations of liberty must be for lawful grounds and according to established legal procedures. Second, anyone arrested or detained has a right to information about the grounds of his arrest or detention, a right to independent proceedings to determine the lawfulness of the detention, and freedom from torture or any other form of cruel, inhuman, or degrading treatment or punishment. See John MCLOUGHLIN et al., “Security Detention, Terrorism and the Prevention Imperative” (2009) 40 Case Journal of International Law 463 at 477Google Scholar.

186. ZEDNER, Lucia, “Seeking Security by Eroding Rights: The Side-Stepping of Due Process” in Goold and Lazarus, supra note 5, 257 at 264Google Scholar.

187. Art. 151(2) of the Singapore Constitution; and Internal Security Act, ss.14, 15, 16.

188. Internal Security Act, s.14.

189. Ibid., s.12(1).

190. Ibid., s.13(1).

191. Ibid., ss.9(a), 9(b) and 11.

192. Ibid., s.11(2)(a).

193. Ibid., s.11(2)(b).

194. Art. 9(3) of the Singapore Constitution; and Rule 4(1) of the Internal Security (Detained Persons Advisory Board) Rules.

195. Art. 151(4) of the Singapore Constitution; and Internal Security Act, s.13A of the ISA. See “ISA Is Needed Now More Than Ever” The Straits Times (20 October 2011), and “DPM Teo: Terrorism Act Lacks Pre-emptive Powers of ISA” The Straits Times (20 October 2011).

196. “ISA Is Needed Now More Than Ever” The Straits Times (20 October 2011).

197. This is a reference to the Internal Security (Detained Persons) Rules.

198. Ibid., Rule 81.

199. Ibid., Rule 53.

200. Ibid., Rules 23 and 31. A Superintendent shall ensure that a detainee who has complaints is allowed to make them.

201. Ibid., Rule 24.

202. Ibid., Rule 80.

203. Ibid., Rule 83.

204. Ibid., Rule 86.

205. This is alluded to in Rule 88 of the Internal Security (Detained Persons) Rules, which provides for the Minister to declare any place to be a place for the “rehabilitation of detained persons”.

206. See, for instance, Speech by PM Lee 2013, supra note 163 at para. 2.

207. HUSSAIN, Zakir, “Get Them Back on Track” The Straits Times (7 January 2012)Google Scholar.

208. Speech by PM Lee 2013, supra note 163 at paras. 2−11. See also DPM Teo's Parliamentary Speech 2013, supra note 178 at para. 13. This was also referred to in passing in “Malay-Muslim Community Sets Up Inter-Agency Aftercare Group To Help Families of JI Detainees” in Lianhe Zaobao (14 November 2007) (translated).

209. Speech by PM Lee 2013, supra note 163 at para. 2.

210. See the publication commemorating the tenth anniversary of the RRG, Saat A Rahman (ed.), Winning Hearts and Minds, Promoting Harmony: A Decade of Providing Care and Support (Singapore, 2013) at 151 [RRG]; the publication was also reported on by the Straits Times on 7 April 2013 (see REKHI, Shefali, “The Hidden Journey of a Singapore JI Detainee” The Straits Times (7 April 2013Google Scholar)).

211. For an example of an ex-detainee sharing his experience during detention and his interaction with his assigned officer, see Rekhi, supra note 210Google Scholar, detailing the experience of an ex-detainee Abu Harith. Abu Harith shared that “What kept me going was the constant support I received—from the doctors and psychologists, and members of the community who volunteered their time to counsel me.” See also

SIM, Susan, “Captured Terrorists as Intelligence Sources and Counterradicalization Leverage” in A. DUYAN, ed., Analyzing Different Dimensions and New Threats in Defence Against Terrorism (Amsterdam: IOS Press BV, 2012) 65 at 76Google Scholar.

212. See Report of the Qatar International Academy for Security Studies (QIASS), “Countering Violent Extremism Risk Reduction Project” (2010), online: 〈http://soufangroup.com/wp-content/uploads/2013/12/QIASS-CVE-FINAL-Report-112410-copy.pdf〉.

213. Sim, supra note 211 at 76Google Scholar. See also

Hussain, supra note 207Google Scholar.

214. Rekhi, supra note 210Google Scholar. See also

Sim, supra note 211 at 76Google Scholar.

215. Hussain, supra note 207Google Scholar.

216. Hassan, Muhammad HANIFF bin and PEREIRE, Kenneth George, “An Ideological Response to Combating Terrorism—The Singapore Perspective” (2006) 17 The Small Wars and Insurgencies 458 at 463Google Scholar, where it is noted that: “The immediate family members were also offered psychological and emotional support by trained counsellors who visited them regularly to assess their condition and offer assistance.”

217. An Aftercare Group (ACG), a network of Muslim organizations which ISD facilitated the establishment of in 2002 (comprising Taman Bacaan, the Association of Muslim Professionals, Mendaki, Khadijah Mosque, and En-Naeem Mosque), provide financial and social support to the families. They provide a range of financial (subsidies, bursaries, school pocket money, etc) and other support (tuition, text books), and family care services like counselling, to help the families. The ISD aftercare officer will link up detainees’ families with the ACG to obtain the necessary help, including watching over and mentoring children who have developed problems. See also “Malay-Muslim Community Sets Up Inter-Agency Aftercare Group To Help Families of JI Detainees” Lianhe Zaobao (14 November 2007) (translated).

218. Hussain, supra note 207Google Scholar. The author states: “The Straits Times understands that detainees and those on Restriction Orders are encouraged to pursue further education and training, whether in detention or post-release.”

219. Rules 85(1), 85(2), 85(3), and 85(4) of the Internal Security (Detained Persons Advisory Board) Rules.

220. Ibid.

221. Ibid., Rule 85.

222. Li-Ann, THIO, “‘Pragmatism and Realism Do Not Mean Abdication’: A Critical and Empirical Inquiry into Singapore's Engagement with International Human Rights Law” (2004) 8 Singapore Year Book of International Law 41 at 69Google Scholar.The White Paper titled “The Jemaah Islamiyah Arrests and the Threat of Terrorism” is publicly available at the website of the Ministry of Home Affairs, online: 〈http://www.mha.gov.sg/get_blob.aspx?file_id=252_complete.pdf〉.

223. Thio, supra note 222 at 69Google Scholar.

224. See the Press Release dated 7 March 2013, detailing the further detention and releases under the ISA, on the Ministry of Home Affairs website, online: 〈http://www.mha.gov.sg〉.

225. See the “Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba”, online: 〈http://www.dni.gov/files/documents/March%202013%20GTMO%20Reengagement%20Release.pdf〉. It should be noted that these figures may be compared with the figures provided by the New America Foundation, a US-based non-profit, non-partisan public policy institute, which cites lower figures of about four percent and 4.7 percent for the confirmed and suspected recidivists respectively, online: 〈http://newamerica.net/sites/newamerica.net/files/profiles/attachments/GTMO_Appendix_5-7-2013.pdf〉.

226. See, for instance, RRG, supra note 210. See also the recent news report, MOKHTAR, Maryam, “Religious Rehab Group's Work Praised” The Straits Times (26 June 2013)Google Scholar, which reports on the Deputy Prime Minister's praise for the RRG and its efficacy in fighting the terror threat.

227. “Government's Statement on the Internal Security Act” The Straits Times (17 September 2011).

228. Joint Task Force Guantánamo is the American military force based at Guantánamo Bay.

229. Timeline Theatre Company, “Guantánamo: Honor Bound to Defend Freedom”, online: 〈http://www.timelinetheatre.com/guantanamo/〉.

230. Lazarus and Goold, supra note 103 at 22Google Scholar.

231. Ibid., at 8.

232. Kent ROACH et al., “Introduction” in Ramraj et al., supra note 56 at 1.

233. Lazarus and Goold, supra note 103 at 8Google Scholar. See also ibid.