In the last decade of the 20th century and the first years of the 21st, terrorism and the illegitimate use of violence have become salient features of global politics. The phenomenon seems if anything to be on the increase; indeed, it was Paul Wolfowitz, then United States deputy secretary of defense, who told a Rand Corporation conference in September 2004 that terrorism might well sustain its momentum for several decades.
Arab and Muslim countries general experience of terrorist attacks, and that of the Gulf Cooperation Council (GCC) states in particular, has been quite remarkable. Because of a series of mindless acts perpetrated by a few Arabs who wave the banner of Islam, people and regimes in the region have had to bear the political, economic and cultural brunt of their insanity both in the region and beyond.
As long ago as 1998-99, I strongly urged people concerned to sway such badly-guided groups from their path. More recent bloodshed the kidnappings and beheadings in Iraq, the siege in Beslan, the numerous bombings in Saudi Arabia indicate that the problem persists. All these actions have achieved is to drive the people and the religion of the perpetrators deeper into a vortex of destruction with no benefits at all. It is time that religious scholars, sociologists, law-makers, economists and government officials deploy concerted efforts to confront this sweeping wave of blind extremism. This is of utmost importance to pre-empt the disfiguring of the history, values and foundations upon which a divine and universal religion such as Islam is built.
The development of agreements and laws in the region indicates some progress in understanding the seriousness of this issue. An agreement on counter-terrorism was first reached by Arab ministers of the interior and of justice in Cairo in April 1998; this was collectively ratified by the six GCC countries Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates (UAE) in May 2004. In 2004, there were two national laws: on 16 February 2004, Qatar promulgated a Counter-terrorism Act (law number 3, 2004 , issued by the Emir of Qatar); on 28 July 2004, a decree-law on the fight against terrorist crimes (decree-law number 1, 2004) was issued by the UAE president. Qatar and the UAE are the only two countries within the GCC alliance to promulgate legislative texts against this crime, which is rather new in the annals of the region.
In this article, I will discuss the background to these laws by considering the international community's efforts to establish an agreed definition of terrorism, the measures embodied in United Nations Security Council Resolution 1373, and the implications of both for the development of counter-terrorism legislation in the dual Qatari and UAE legislations.
Mohamed Al Roken is associate professor of public law at UAE University, Abu Dhabi
Also published by openDemocracy on terrorism and state counter-terror strategies:
Andrew Blick & Stuart Weir, The rules of the game: Britains counter-terrorism strategy (November 2005)
Isabel Hilton, Americas secret prisons: Alvaro Gil-Robles interviewed (November 2005)
Mats Engström, The European unions anti-terror plans: lift the secrecy (November 2005)
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A problem of definition
A scholarly work on terrorism published in 2001 that consisted of three volumes totalling 1,866 pages which traces attempts by the United Nations and other international agencies to reach a clear-cut, comprehensive definition of the phenomenon - found that the search had been unsuccessful. The difficulty can perhaps be ascribed to the fact that "terrorism" carries ideological and political values and connotations much more than it does a clear legal significance. The result is that the term has acquired a veil of ambiguity that has been exploited by those with a vested interest in doing so: this enables it to be used to smear or justify particular acts, or to regard the same acts as abhorrent or defensible, depending on the point of view.
The original Oxford dictionary definition of terror is "government by intimidation". The reference is to a ruling regime that imposes its control over the people by means of spreading and maintaining an atmosphere of terror among the community (for example, during the French revolutionary period). The meaning of the term evolved to connote the use of violence against rather than by the state; the first modern acts that came under this definition unfolded in Ireland in the 1860s and Russia in 1883.
The first juridical attempt to formulate a definition of international terrorism creating a condition of terror in the minds of a group of individuals or sect or amid the general public was made as part of an abortive international pact by the League of Nations in 1934-37. After the second world war and the creation of the United Nations, more attempts were made without acquiring international or comprehensive legal status (although since 1936 twelve conventions and international protocols have been promulgated, covering crimes as diverse as piracy, plane hijackings, kidnappings, and crimes against international officials).
Among many attempts to pin down terrorism to a single meaning one researcher has identified 108 AP Schmid's is notable. It was undertaken as part of a report submitted to the UN in 1992, and proposed a definition of terrorism that would be the counterpart of war crimes committed in times of peace. Britain's Terrorism Act (2000) defines terrorist acts as the use, or the threat of using, any of the acts included in the text of the law in order to pressure the government or terrorise the people or a section of society to achieve political, religious or ideological objectives. More generally accepted is that employed in US federal legal texts, where terrorism is defined as the illegitimate use of violence and force against people or property in order to infuse terror or coerce governments or civilian populations with the purpose of achieving political or social ends.
This definition has three elements:
- the illegal use of force
- the objective of terrorising people by means of an illegitimate act
- the act is conducted for political or social goals.
Despite these efforts, and the critical importance of the topic, a shared international definition of terrorism is still lacking. To arrive at it would be helpful in two fundamental ways: international organisations would have a unified legal reference, and all countries of the world would espouse a unified legal standard that would not serve the exclusive interests of any particular country.
It is well to note in this context that the rules incorporated in the texts of contemporary international law do distinguish between terrorist acts and the right to conduct resistance, armed struggle in pursuit of self-determination. Terrorist acts, of course, are criminal in character. They are condemnable and totally rejected by the international community, while resistance is a legitimate right protected and endorsed by international conventions.
The events of 11 September 2001 provoked a heated debate on these issues. On 28 September 2001, the UN Security Council issued its famous Resolution 1373, which had been proposed by the US and was ratified without amending any of its parts (according to chapter 7 of the UN charter).
The resolution calls for wide-ranging and diverse measures to fight terrorist acts and practices by embracing and implementing all possible legal instruments; demands that all members of the international community (especially states) criminalise the collection of funds for terrorist organisations, refrain from providing any support to those implicated in terrorist acts, exchange information about the movement of suspect individuals and networks, and embrace international pacts and protocols bearing on the global fight against terrorism. As Resolution 1373 rested on chapter 7, it became legally mandatory on all states and international organisations otherwise they would be liable to sanctions if they breached it.
The preamble of this resolution states that terrorism breeds on bigotry and extremism in many parts of the world. But its text seems to overlook other factors that instigate, such as political, economic and social conditions. Likewise, it makes no mention of the right to self-determination and to resist occupation, putting the accent rather on the right to self-defense. It also fails to present a clear definition of international terrorism the problem that has bedevilled so many such efforts.
In order to have UN Resolution 1373 implemented, a specific mechanism was set up via the creation of the Counter-Terrorism Committee (CTC) to which states were called to submit regular reports. The committee asks for clarifications from governments in a bid to ensure that they stick closely to the resolutions stipulations. Additionally, the UN Office on Drugs and Crime (UNODC) assumed a vital role by offering legislative assistance and services to different states so that they could articulate their own national anti-terrorism legislations; from October 2002 to June 2004, the UNODC assisted eighty countries, chiefly by explaining the content of UN Resolution 1373 to legislators, law executives and members of the judiciary ; it also offered direct legal assistance to forty-three countries, helping them design national plans to fight terrorism and review their national legislations as well as offering them advice on devising new anti-terrorist laws.
Qatars and the UAE's anti-terror acts
The 2004 acts of these two states were developed within the framework of the commitment by Abu Dhabi (UAE) and Doha (Qatar) to the international community and as part of the implementation of UN Resolution 1373. The UAE has not witnessed terrorist acts on its national soil, while Qatar has been subjected to a number of relatively minor incidents the most recent being the suicide bomb that demolished the Doha Players theatre on 19 March 2005, which killed a British citizen and injured fifteen other people). In either case, it is clearly important that these states should be able to take precautionary measures against possible terrorist acts.
The texts of the two anti-terrorism acts criminalise a number of acts as manifestations of terrorism among them creating and managing a group with the purpose of committing terrorist acts; providing such groups with funds, weapons or documents; joining or coercing people to join them; seeking assistance of foreign states or groups to conduct terrorist acts; and failing to inform authorities about any plan or project to commit terrorist acts.
The Qatari Counter-terrorism Act (February 2004) was discussed with the Shura (consultative council), which in some way represents the people, although its mission is consultative rather than representative. The case of the UAE (July 2004) is different; there the draft bill was decided on in April 2004 by the technical committee for legislation in the ministry for legislative affairs. At the time, the UAE national council the appointed body that represents the UAE people from a constitutional perspective was in session. The act was later submitted to the legislative committee at the ministerial council and was not debated at the national council, which concluded its session on 14 July 2004. The act was issued as a decree-law by the UAE's president two weeks after the completion of the national councils session during the legislative recess.
Both the Qatari and the UAE counter-terrorism acts attempt to posit definitions of crimes and terrorist acts. The Qatari act considers that any criminal acts (excluding misdemeanors) which figure in the code of penalties or any other law are terrorist crimes if the purpose of perpetrating the acts is terrorist. Any act is liable to be characterised as having a terrorist objective if the use of force or violence is to cripple the constitution, disrupt public order, or undermine public security. The UAE act regards as terrorist acts any acts deemed to be part of an individual or collective criminal project that seeks to spread terror among people or terrorise people in an attempt to disrupt public order, undermine public security, expose people to danger or wreak destruction on the environment.
The two definitions are close to the definition included in the text of the Arab Counter-terrorism Pact. They are also not far from the stipulations of article 86 of the Egyptian Penal Law. It is notable, however, that the UAE act makes no reference to the terms "force" and "violence" in its definition of terrorism, unlike the definition espoused by the FBI. As such, terrorist acts could be peaceful, and not necessarily violent.
This is an expansion of the concept that extends beyond the definition embedded in clause two of the Arab Counter-terrorism Pact. Yet, the UAE act is distinct in the sense that it does not include the term "threat" as is the case with the Qatari act, nor does it include the term "initiating" which figures in the text of the Arab pact. In fact, the threat to use violence might invite a wider interpretation that would cover acts of political opposition.
It is worth pointing out also that these two acts do not include another defining determinant of terrorist crimes as adopted by other countries, particularly the United States and United Kingdom: achieving a political or social objective. Superimposing this attribute would in turn expand the concept of terrorist act or crime further. Moreover, the UAE act holds the abstention from acting as a terrorist crime, which neither the Arab pact nor the FBI definition mention.
The upside of the two acts lies in the fact that both stipulate the attempt of perpetrators to carry out acts of terrorist by applying ordinary law and neither act calls for the creation of extraordinary or special tribunals, such as state security courts or terrorist tribunals or military courts.
The UAE act grants defendants the right to express grievances before the specialised court about decisions made by the public prosecutor, although this guarantee remains restricted to freezing funds or provisional seizure of property. It would have been commendable if the right to grievance were extended to include other measures such as provisional detention (detention pending investigation) of defendants, particularly since the law in both the UAE and Qatar does permit public prosecutors to place defendants under detention for a maximum period of six months, which is a much longer period than the one determined by the penal law against common crimes which can fetch twenty-one days of renewable provisional detention on an order from the specialised court. The provisional detention period is also much longer than the one stipulated by the proposed new British counter-terrorism measures, which has set the maximum period of provisional detention at twenty-eight days.
Stripping individuals of their freedom, even if they are under suspicion, for long periods under the terms of provisional detention exceeds the period defined by penalty codes. The Arab pact, too, includes a specific dispensation for provisional detention, stating that it should not go beyond sixty days from the time of arrest (clause 26/1). Both Amnesty International and the UN Committee for Human Rights have expressed reservations about the length of provisional detention as stipulated by the Arab pact and as practiced by some countries. Amnesty International and the UN Committee for Human Rights regard provisional detention as arbitrary detention that contravenes the International Convention on Civil and Political Rights (1976).
The rules of law
Within a comparative perspective, the UAE act seems to have expanded in greater detail on crimes and penalties than its Qatari counterpart. As a matter of fact, the UAE act includes forty-five detailed articles that cover a long roster of crimes not covered by the Qatari act, which consists of just twenty-three articles.
Both acts, however, refer to the death penalty and its expanded application. The Qatari act mentions the death penalty on five separate occasions while the UAE act refers to it on twelve occasions. It is indisputable that terrorist acts represent a formidable danger for the security of societies, the safety of human beings and the prosperity of their lives; all this provides enough reason to seek the best deterrents against the perpetrators of such acts by upholding the most severe sanctions in compatibility with the dangers embodied in these acts. Still, insisting on the necessity for deterrence might be at times questionable.
The prevailing trend in modern international law tilts rather towards banning the death penalty and restricting the number of crimes punishable by death. Mentioning the death penalty repetitively within the body of the legislative text certainly gives a negative impression that could have been avoided by simply promulgating a single legal text that would refer to the death penalty as the sentence to be meted out to any perpetrator of crimes resulting in the death of another person, which only goes hand in glove with Islamic sharia [jurisprudence]. If such a text was adopted, the multiple references to the death penalty would have been reduced in the UAE act to just seven.
Furthermore, dwelling so often on passing the death sentence, even if it were optional, for acts that do not result in the death of persons does not go along with the dominant trends in modern law-making. This is one of the pitfalls in which the UAE and Qatari acts slip into; the death penalty is impossible to review once it is executed as a penalty against crimes such as using weapons in committing terrorist crimes, establishing or managing a terrorist group or organisation, the threat to use non-conventional weapons, and using conventional explosives.
The UAE act stands out from its Qatari counterpart in criminalising the verbal or written promotion of terrorist acts or the possession or acquisition of publications or recorded material for the sake of committing a terrorist act on condition that the material is set ready for distribution or for other people to read or watch or listen to. The text, however, includes words favouring terrorist acts, which, unlike other terms such as possession or acquisition or promotion, are much less regulated legally within the field of criminological research.
On a similar note, both the UAE and Qatari acts criminalise the funding of terrorist acts, whether via transporting or offering or depositing or hiding funds or simulating their nature on condition that the accused has a foreknowledge of the terrorist intention or using funds to finance terrorist crimes. This is a laudable approach, as it contributes to drying up the money and material sources utilised to fund these most inhuman acts. However, I could not but pause at clause 13 of the UAE Counter-terrorism Act, which stipulates that any funding of terrorist acts falls within the criminal domain whether the act is perpetrated within or outside the country and whether the act itself is actually perpetrated or not.
The Qatari act, for its part, does not state any similar dispensation. The funding of terrorist acts within the country is certainly to be rejected and ought to be criminalised and sanctioned, but applying the same approach to the acts of a committee outside the country is rather questionable. As mentioned early on in this study, terrorism is an issue that causes much discord throughout the world.
The US administration has drawn up a long list of groups it describes as terrorist and thus funding these groups would be considered a criminal act. The European Union, for its part, has a list of its own whose details look much different from Washingtons. For instance, Hamas, Hizbullah, the Popular Front for the Liberation of Palestine (PFLP) and some Kashmiri liberation movements are categorised as terrorist groups, whereas the Arab and Muslim states and people do not look upon them as terrorist movements.
The question that could properly be raised in relation to Clause 13 of the UAE act, especially in view of the fact that no national list exists to classify terrorist groups and no similar and internationally accepted list exists, is: does providing funds for these movements through donations or zakat [almsgiving] or charity come under the rubric of funding terrorism that would be punishable by national laws? Is supporting NGOs and charities in regions where these movements operate likely to be considered as funding terrorism? I do believe that the obvious and convincing answer for Arabs and Muslims is a big, bold and decisive "no".
Last but not least, the UAE and Qatari acts offer a suitable exit for those who have been implicated or misguided into terrorist activities or acts. Both acts provide for an exemption from punishment for any member belonging to terrorist organisations who take the initiative to report on them before a terrorist action is committed. Both acts provide for commutation of the punishment for any individual who reports to the authorities after the crime is committed in the event the culprit cooperates with the authorities during the investigation in such a way as to lead the authorities to apprehend the perpetrators of this any similar crime.