The global emergence of what are termed "terrorist crimes" has led countries around the world to begin to confront the new phenomenon. As they go about protecting their people, however, governments also have an obligation to ensure that the additional legal measures they take comply with ordinary penal law as well as international human-rights law. Achieving that balance isn't always easy.
Some nations have produced anti-terrorism legislation defining the actions associated with such crimes – which affect both the internal and external security of the state – and stipulating severe punishments. These punishments, justified by the exceptional nature of the crimes, give state agencies much broader authority with which to deal with them.
The Arab Gulf states are no exception. The most significant of the region's efforts to combat terrorist crime through legislation are: Act 3 of 2004 in Qatar (issued on 16 February 2004, comprising twenty-three articles), Act 1 in the United Arab Emirates (28 July 2004, forty-five articles), and Act 13 of 2005 in Iraq (7 November 2005, six articles). In March 2006, the government of Bahrain submitted a draft law, comprising thirty-four articles, to parliament. It remains unpassed, however, having met with protest and rejection by legislators and a large number of civil-society organisations.
Mohamed Al Roken is associate professor of public law at UAE University, Abu Dhabi, and an editorial board member of the Gulf Research Center
Also by Mohamed Al Roken on openDemocracy:
"The Arab Gulf states: fighting terror lawfully" (December 2006)
Law and freedom
By stipulating counter-terrorism legislation, or proposing and effectively applying such legislation, the four states must aim to protect individuals – citizens and expatriates under their jurisdiction – against terrorist acts. This is the obvious obligation of any state. But in compliance with the United Nations Human Rights Commission, states enacting procedures to combat terrorism must also ensure that those measures meet their obligations under international law, "in particular, international human rights, refugee and humanitarian law".
In general, counter-terrorism laws run into criticism for failing to find this required balance between the security of society and the preservation of individual rights and freedoms. Freedom of opinion is one of the basic rights guaranteed by international and regional covenants and is included in the constitutions of the Gulf states. Both Article 19 of the International Declaration of Human Rights and the International Covenant on Civil and Political Rights state that each human being has the right to his or her opinion and to the expression of this opinion without constraint or intervention. The same principle can be found in Article 10 of the European Convention on Human Rights (1950), Article 9 of the African Charter on Human and People's Rights (1981), Article 13 of the American Convention on Human Rights (1969) and Article 32 of the Arab Charter on Human Rights (1984).
That said, violent groups which terrorise people and threaten the security of nations attempt to promote their goals and methods in order to polarise society as well as to recruit new members. As states see themselves confronted with these threats, they have a duty to defeat them – by stipulating the legal grounds which will provide their governments with the power and authority to deal with them.
Article 8 of the UAE's 2004 act stipulates imprisonment for a period not exceeding five years for promoting verbally, in writing or by any other means (such as symbols, images or drawings) any of the "terrorist" acts or purposes cited in the legislation. The punishment targets the original perpetrator, the one who actually promotes these acts.
The decree also extends the punishment to accomplices, by criminalising the promotion of terrorist acts through the possession of circulated material, publications or cassette recordings, provided that they are intended for transmission or to inform others. And those who possess printing or recording facilities used (even temporarily) to publish, record or broadcast any material related to or instigating terrorist acts are subject to the same penalty as the original perpetrator.
In Qatar, counter-terrorism law has not specifically addressed the question of expression of opinion relating to terrorist acts; hence, the state considers expressing opinion, even when it addresses "terrorist" acts, to be a normal crime, not a special "terrorism" crime. However, Qatar's Article 19 allows the prosecutors to monitor communications and record what goes on in both public and private locations if it benefits the investigation of terrorist crimes. This provision is limited to a period of ninety days at most, though, and can only be extended by the judiciary.
Article 10 of Bahrain's draft law criminalises exploitation of religion, the dissemination of provocative propaganda, promoting extremist ideas, raising placards, spreading drawings and other means of stirring sedition. Article 12 aims to punish anyone who promotes terrorist crimes by any means and who possesses circuited material and publications that promote these crimes, or who possesses facilities for printing or recording that are used temporarily to record or broadcast terrorist acts. Furthermore, Article 29 gives prosecutors the authority to wiretap and monitor not only electronic communications, but messages, printed matter, packages and the recording of what goes on in public and private places.
The Iraqi law does not deal precisely with the question of promoting and possessing materials and recordings pertinent to terrorist acts, but it criminalises "instigating violence". This, however, is outlawed without a specific definition of the meaning of "instigation". Article 3 states that this could include a group of acts amounting to crimes against state security, among them the attempt to undermine the ability of the security forces in whatever form (beyond the freedom of expression).
Terror and rights
Passing these laws has had an impact on the local and international level, especially regarding their effects on the general issue of public freedom, and specifically affecting the right to opinion and expression. The most important observations and criticisms of the legal articles regulating this issue can be summarised as follows:
- in their totality, the laws have not given a clear definition of the term "terrorism". The term is originally a foreign word that is derived from a western environment to describe particular acts. The meaning in the Arabic language does not tally with the description of the actual circumstances intended to be criminalised. This contradicts the principle of precision of the penal act, which has as its ultimate goal sécurité juridique, or legal safety: to protect the individual against negative effects of inconsistencies or complexities in the law. Therefore, there is a need for the enacting of specific rules through which the actual safety of the individual is achieved
(Examples of these elastic and vague expressions with regard to terrorism include the following: "sympathising", "sensational propaganda", "extreme ideas", "causing damage to national unity or social peace" and "sectarian sedition". This kind of vagueness has undoubtedly formed a serious threat to the freedom of opinion and expression.)
This Article was published, in slightly different form, in the Security & Terrorism Research Bulletin (Gulf Research Center, Dubai, UAE, February 2006)
These critical observations make it clear that continual monitoring and analysis of counter-terrorism laws passed or proposed by the Gulf states is a matter of fundamental importance.
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