25 September, 2020

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Counterterrorism & The Rule Of Law

By Radhika Coomaraswamy

Dr. Radhika Coomaraswamy

Whenever the topic of counterterrorism is raised my mind goes back to the 2012 film The Gatekeepers, directed by Israeli filmmaker Dror Moheh. The documentary was shortlisted for an academic award. The film interviews six former heads of Shin Bet right up to 2012 just before the film was made. Shin Bet is Israel’s secretive internal security service that is answerable only to the Prime Minister. For most of us living in the third world, Israeli security services and the government are portrayed as a monolith making purposive decisions harmful to the Palestinian people. That is why this is an extraordinary film. It is about counter terrorism in practice, its problems of humanity, it’s dilemmas of fast pace decision-making, the diversity of opinions within and most of all the ethics of operating beyond the rule of law.

There are many works of art that challenge the way one thinks and this is one of them. From my background, one listens mortified as the six heads of this deadly of all institutions talk about “targeted assassinations”, forms of torture, the ticking bomb, having to make decisions as to whether to bomb a whole apartment complex because the Hamas leadership is meeting there – but the main take away is something completely different.

 All these six leaders were strongly critical of where Israel is today. They felt that Israel was strong on tactics but weak in strategy and most importantly strong in counter terrorism but lost the politics and the possibility of working out a long-term solution to the Palestinian problem in the near future. To them counter terrorism must be seen as only a tactic until the politics and social and economic policies to solve a problem kick in. Counterterrorism as a security operation cannot operate alone. It is only a political solution, backed by economic and social measures which is the final resolution. As one of them said, “Israel must learn to live with its Palestinian population”. Political decision-making must come first. 

With the Gatekeepers as a backdrop I would like to say a few words about counterterrorism and the Rule of Law.  Since the time of the Greeks, democracies, and even monarchies have dealt with violent crisis through what is known as  “the state of exception”. This is when the juridical or legal order, especially the aspect that gives rights to citizens, is suspended till the crisis is resolved. This basic state of exception is expected to be for a limited period of time. 

In early democracies, states of exception meant the suspension of the rule of law completely and the Sovereign been given full powers to meet the emergency. Today, under modern international law, there are non-derogable rights and certain processes and procedures have to be followed to protect the citizenry. Habeas Corpus for example is not dispensed with in most democracies except the time period for producing the person in court may be extended. After the crisis has lifted the juridical order is completely restored. But as we know emergencies have a tendency of never going away. 

In the past, fighting terrorism was seen as primarily a police operation within the framework of the Criminal Code and the criminal justice system. 2001 was a turning point where the clause “War on Terror” overtook the discourse. Since then fighting terrorism has been seen as a combined police and military operation. In France the State of Exception has existed for two years and the declaration of Emergency has allowed soldiers to be on the streets of Paris for a long period leading to a great deal of criticism and scrutiny. 

In recent times, the thinking displayed by some of the Shin Beth leaders which can be summarized as “we suspend the rule of law, use overwhelming force if necessary, then return to normal and let the politicians make the decisions” is being replaced by a demand for permanent legislation on counter terrorism. The argumenmt is “we will never be free of acts of terror so let us find a permanent process for all acts of terror from wherever they may emanate”. – I.e. general legislation not tailored to any particular series of events. Some human rights activists support this measure because it allows them a framework to insist on certain non-derogable rights being protected even in times of the greatest emergency. It also sets objective criteria for decision making in certain instances. 

This brings us really to the main ideas that European thinkers like Giogio Agamben have been raising today on these states of exception or counter terrorism laws. The question he says that should concern all of us is “Who decides when someone is a terrorist and who is decided upon?” I was at a workshop in Wilton Park when I was SRSG on Children and armed conflict when a young man from a western military, stated that the civilian combatant principle that asserts that only combatants are legitimate targets in warfare is out of date. 

Terrorists  also make it a point to target civilians. That is their modus operandi. Yet the combatant civilian distinction is the absolute basis of the rule of law in times of conflict. He argued that if a group of terrorists shoot from an apartment building using the complex as a human shield, then there is no problem in bombing the building down. I asked him if some group of terrorists were shooting from the upper floors of the Empire State Building would you bomb it down? I think not; he would advise the use of minimalist force. The question of who decides is crucial.  It will determine the nature, extent and proportionate use of force even in an emergency. Excessive force is used against people you do not identify with, minimalist force against those with whom you do. The need for objective criteria then becomes even more important. 

Let us take our proposed CTA, any police officer, any officer or member of the armed forces or a coast guard officer can arrest without a warrant just on a complaint. The objective test of reasonable suspicion is gone. The terrible acts of April 21st numbed us for a long time, But last week’s Sunday Observor shows us what this can mean. “Justifications for such arrests include frivolous reasons such as the possession of a certificate in Arabic, having Arabic songs in the Laptop, travelling to Jaffna for a job, and having chlorine that desalinates water in your possession”. Many who possessed swords and freely declared them were also arrested. Practically all of them are languishing in jail. So we must ask the second question, “who are the decided upon?” If you are a member of a threatened minority with little access to power, the arbitrariness of a system of justice can be quite shocking. Again the need for objective criteria and quick procedures to rectify errors of judgment becomes paramount. 

Let me now turn to the issue of nation building. I personally do not like the word nation building. I come from a long ago generation that felt that society should be built bottom up. The former Governor of the Indian Reserve Bank, Mr. Raghuram Rajan in his path breaking book, The Third Pillar states that there are three pillars to sustainable nation building, the state, the market and the community and that the failure of the third pillar, the community, in most of our societies, is the cause and the consequence of our present crisis. 

Building communities then must be a major goal of nation building. Traditional communities in Asia have often been closed and exclusive to its members and hostile to “the other”. The challenge then is to try and create new models of citizenship and community that create solidarity among the different ethnic, religious and class groupings that exist. 

I am involved in a research project interviewing our youth and trying to assess the issues of the future. Even though countless small projects have begun since the end of the thirty year old civil war, the vast majority of the youth interviewed had not been involved in any of these projects and were completely unaware of the concepts, ideas, debates and discourse that are usually associated with creating the trust necessary to live in harmony. Only the involvement of the state, political parties and community leaders in a sustained manner over a period of time can make change happen. 

Instead we see the space of “community” being with the forces of divisiveness and hatred. It is actually a frightening phenomenon that is happening across the world. This is particularly so in a post conflict or post terrorist event scenario. This need not be the case. Examples from around the world show that the post conflict moment, with effective leadership, can become a period of truth telling and healing. South Africa was the pioneer in this field but recent developments in Peru, Tunisia and now New Zealand show that there are innovative ways forward. In Northern Ireland the women took the lead. They created their own political party to mediate among the actors at the peace conference and then were intensively involved in post conflict rebuilding. Unfortunately in Sri Lanka there is so much fear and misinformation around that there are active forces resisting reconciliation mechanisms. 

One of the greatest challenges we face is the social media. For some reason hate and negative feeling are galvanized and spread like wildfire across social media. I am on the Fact Finding mission on Myanmar for the United Nations and we have long and contentious discussions with Facebook. 

Their business model and the business model of other platforms do not understand the social and cultural complexities, especially of Asia. The freedom of speech model they bring to bear instead of understanding the unethical mobilization of hate in our societies actually aggravates the status quo. Myanmar and the Digana riots here are examples of how social media fed and incited violence. Facebook themselves have asked for regulation and they have set up an office for self-regulation in Singapore with Asian staff.  We must work together to have a proper regulatory framework for the operation of social media so that the hate and divisiveness it fosters is curtailed without suppressing legitimate freedom of speech. Again we have to focus on who decides so that valid dissent and diversity of opinion are not curtailed at the altar of security. 

Finally, the array of issues around impunity, lawlessness and justice are also an important component of nation building. Today we speak of transformative justice, where justice mechanisms and activity are relied upon in the context of building a healing process at the national level and in the community. 

Our system of justice like many has its fair share of corruption and laws delays. But my proposition is that our system of justice generally works but there is system wide failure in three instances, when cases involve important politicians, errant members of the clergy or rogue elements of our security forces. Where they are concerned the system either shuts down or delivers peculiar results. Therein lies a tale of where power really lies in our society. 

*A presentation made at the Panel Discussion, “From Counterterrorism to Recovery: – Lessons from International Experience”, Lakshman Kadirgamar Institute

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Latest comments

  • 1
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    Sri Lanka is giving so many contradictory messages. It talks about a Sri lankan and not sinhala people. On the othe rhand hand, They all, particularly politicians talk about ethnic groups, Religions. SO the message is contradictory and looks it is simply for oppressing and suppressing Sinhala every thing.
    I think Srilankan politicians are trained by foreign countries, foreign agents to talk this crap. so, what they talk is to make them happy. Sri lankan political system is to fool the voters, so, cheating voters is nothing.

  • 4
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    A very well written article. The writer makes very good points, and gives an insightful perspective to this problem. It should make any reasonable person realize that social media has played a devastating part in these terror attacks against innocent people, whether in Myanmar or Sri Lanka, and that fake news, false propaganda, and lies, are spread as a tool, to provoke, and set the majority group against the more helpless minority. The minority live in fear at time like this, and mobs seem well organized to go on their rampage, to burn, loot, attack, and even kill. It is unfortunate that as if on cue, these arsonists and killers surface, to cause tremendous fear, and destruction, that affects the economy of the entire country.
    The answer to terrorism, is not counter terrorism, nor is it mob violence by the majority.

  • 1
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    Counter Terrorism that Ranil talks about is for International weapon manufacturers who need business.

  • 6
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    Shameless, attention seeking Radhika Coomaraswarmy,
    “Counter-terrorism is terrorism’s best friend” wroteJoseba Julaika in the book – Terrorism the self-fulfilling Prophesy. Please educate yourself and stop peddling Bullshit.

    Instead of sitting on panels with US embassy staff and their Rand Corporation military-business intelligence-contractors who have been weaponizing religion in Asia and helping them to craft the fake narrative about IS, to delude the people of Sri Lanka about who cause the Easter Carnage you should open your small eyes and brain.
    Rathika you known full well that US Special Operations Forces (SOF), and their Saudi friends that own and operate ISIS and the IS narrative, staged the Easter crime in Sri Lanka to get the SOFA and MCC compact signed, and pass the ANTI- TERRORISM BILL drafted in Washington to ban protests in Lanka, and turn Lanka into a colony of the USA.
    Are you still in love with US puppet Bond Ranil?
    The next time you sit with the US ambassador please ask her to GET OUT of Sri Lanka, stop weaponizing religions and remove all Special Operations Forces (SOF)

  • 1
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    Radika, you made my day.

  • 3
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    “One of the greatest challenges we face is the social media. For some reason hate and negative feeling are galvanized and spread like wildfire across social media.”
    True to a certain extent, but we should remember that the worst political/ racist massacres like in 1958, 1983, 1989 etc happened not just without social media but with a tightly controlled State media. At the time the BBC and Time mag were considered subversive.
    One big problem is the increasingly racist leanings of the “Buddhist” clergy. I was nodding off at a fairly innocuous Pirith ceremony the other day, until the priest started ranting about “those who don’t want to act like SriLankans should leave the country”. I am sure this happens all over, and these ignorant priests have a terrible influence especially on uncritical young minds.

    • 3
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      Dear Old codger, Ours is a society that wants shortcuts for everything. We are in a society that does not look beyond their noses.
      .
      The Clergy – Politician combo is poisonous.
      .
      People like Radhika Coomaraswamy will never experience the true picture until they taste what you and I are fed on a daily basis!

  • 7
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    One thing common among the Colombo 7 elite is the continuous pontification about ” well they do this in the west “, so we should. May I remind you we not in Europe but closer in every aspect to tribal Africa and it’s south Asian offshoots. Just as SL will never be Europe . You will never pass in high society of Paris. London or new York inspite of you acedemic qualifications. My advice for you. Pakiyasothi sarvanamutti and that nerd jehan is to first learn some sinhala and take a road trip to places like anuradhapura. Yapahuwa, matale., Avisavella and tissamaharamaya and meet the natives.

  • 1
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    The contributions like Radhika’s should have started a discussion on reformation on the security sector, judiciary and so on. Anyone talks about the state is attacked, denigrated, belittled in the form of character assassination. If this cannot be stooped by these organised hecklers, the democratic community will not be able to argue in a public platform like CT. Radhika is a world-class intellect and should continue to enlighten us more.

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    Ms. Radhika,
    Please do not try to teach about counter trerrorism to Sri Lanka as we can teach about it to the whole world as e fought ad totally annihilated most dreaded terrorist organisation called LTTE where whole world thought that they were invincible.

    Answer to counter terrorism is totall annihilation ruthlessly and the whole world can learn from Sri Lanka.

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