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Terror, law and human rights in the Arab Gulf states

Mohamed Al Roken
9 April 2006

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

  • the scope of "terrorist" crimes is wide, containing acts that sometimes can be regarded as political opposition or the practice of public freedoms such as criticizing the government as a vent for the expression of opinion. This has led a Kurdish politician, Mahmoud Othman, a member of the Iraqi national assembly, to say that the formulation of the act of terrorism in Iraq could be applied to all opponents of the government
  • the role of the state with regard to freedom of opinion and of expression is twofold: a "positive" one through which the three branches of government protect and maintain these freedoms, and a "negative" one through which they refrain from taking actions that constrain or restrict freedom. Counter-terrorism legislation in the Gulf states stipulate harsh constraints on the freedom of expression in such a way that many people fear to express their opinions, to analyse terrorist acts, or to talk about the goals of the laws in order to avoid being entrapped in the legal mesh
  • the legal articles mentioned above contain many vague, imprecise and nebulous phrases regarding terrorism, which concerns the Geneva-based International Commission of Jurists (ICJ). In a 10 May 2005 statement to the United Nations committee against torture – regarding the Bahraini draft law in particular – the ICJ said the vagueness could run contrary to the cornerstone principle of criminal law: nullum crimen, nulla poena sine lege (no crime and no penalty except in accordance with a previous legal provision).
  • (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.)

  • the counter-terrorism laws in the Gulf states have given government agencies broad authority to tackle terrorist crimes and thus form a threat to basic freedoms. The Qatari law and the Bahraini draft law allow wiretapping and monitoring of individual communications for a renewable period of ninety days. This makes many individuals hesitant to freely express their opinions, even if they have no connection to terrorism, because they fear of being liable to trial under the criminalizing provisions of the laws. Also, the possibility of recording of conversations, which is a violation of the right to privacy, has broadened in scope to include not only what goes on in public places, but also conversations and discussions in private locations. This state of affairs may threaten another basic freedom – the freedom of assembly.
  • these laws do not consider innocent intention a reason to hinder punishment. If an individual merely broadcasts or says something, this is not considered a terrorist crime if it cannot be proved that the speech or writing was made with criminal intention – that is, to terrorise peaceful people. In light of the existing articles, the law may go as far as accusing anyone who expresses an opinion or writes a commentary about terrorist acts of promoting such acts, and the burden of proving innocence and good intentions will fall on the accused individual.
  • the Gulf legislation has not addressed the special "criminal intention" in the act of promoting terrorist activities. The promoters of audio or written media materials are not supposed to know that what they are promoting is a criminal terrorist act. Rather, the burden of proving their knowledge of the criminality of their alleged behaviour falls on the public prosecution. Also, the motive for committing the crime – that is, what drives someone to promote media materials or to verbally express terrorist views – must be proven. If the purpose of a promotion of opinions or expression is to spread terror among people or recruit them in a specific terrorist organisation, the person concerned will be convicted and punished. The burden of proving this special purpose again lies with the prosecution.
  • This Article was published, in slightly different form, in the Security & Terrorism Research Bulletin (Gulf Research Center, Dubai, UAE, February 2006)

  • The same principles apply to the crime of possession. The wordings of Article 8 of the UAE act and Article 12 in the Bahrain draft law attest to the fact that the mere possession of publications or records is a crime, whether the owner knows the nature of what he possesses or not. The two laws have not specified the existence of criminal intent on the part of the owner, and thus contradict the general principles.
  • As an example, one of the unusual rules is Article 20 of the UAE law; it punishes with a period not exceeding ten years in prison any person who instigates a terrorist crime, under the condition that the instigation did not have consequences. Instigation usually takes the form of speech, such as an opinion promoted publicly. What is remarkable here is that the instigator in this case might receive a double punishment in comparison to the actual perpetrator, who is in a better position legally. The person who commits the crime of promoting a terrorist act is punished in compliance with Article 8 for a period of imprisonment not exceeding five years. The instigator, on the other hand, is punished in compliance with Article 20 and gets a double imprisonment if the instigation does not have consequences. The imprisonment increases in cases where there are consequences.
  • 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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