By Atty. RAF JESPERS*
Progressive Lawyers Network, Belgium
Presented during the 3rd Congress
of the International Association of People's Lawyers
Davao City, Philippines
14 October 2006
The attacks in New York, London and Madrid were the signal for
the U.S. and Europe to curtail without scruples, the fundamental
rights of its citizens. Under the banner of “the war on
terror,” they have taken measures which up to a certain
point, can be compared to the fascization of Europe in the 1930’s
under Hitler and Mussolini. The war on terror starts long before
9/11; but after 9/11 it became accelerated and did not stop just
at today. A new historical period of repression was started.
Terrorism has to be combated; innocent citizens have
to be protected
The traditional judicial definition of terrorism is the use of
organized violence against civilians.
There is no question that a state should arm itself against terror
deeds like those from Al-Qaeda. These blind extreme right and
fascist terror actions do not deserve our understanding. The victims
of these actions are the innocent persons in the streets of New
York, London, Madrid and Mumbai. So too are the Iraqi people,
who are victims of the unlawful occupation in Iraq by the U.S.
and Great Britain. This state terrorism also does not deserve
any understanding. These two forms of terrorism are each other’s
breeding grounds. Without Al Qaeda, Bush would have had a more
difficult time invading Iraq and taking drastic measures against
fundamental rights such as in the Patriot Act. The invasion of
Iraq and the terror of the United States against the people became
the pretext for all sorts of fundamentalists to meddle in the
Iraqi quagmire.
9/11 is the beginning of a new era of war on civil liberties
The U.S. is in the world arena without doubt the engine and leading
power for the so-called anti-terrorism measures. All violators
of human rights are justified with their argument that they are
necessary in the fight against terror. Imperialist states and
their allies have in the course of history developed and brought
to perfection their state system to break the resistance of the
peoples against injustice and oppression.
The measures taken in the past five years mean a historical modification
in the field of expansion of the apparatus to impose or preserve
worldwide the power of the U.S.-imperium. That imperium has been
threatened indeed by the rise of the developing countries: Brazil,
Russia, India and China. By 2040, those countries will have left
the old industrial countries (U.S., Japan, Europe) economically
behind them.
We must be aware that the “measures against terror”
mean a new era of repression.
After the second world war there was an enormous extension worldwide
of fundamental rights as a result of the victory against fascism
in Europe and Japan and under the influence of the rise of socialism
and anti-olonialism of which peoples and citizens could enjoy.
There was the establishment of the United Nations Organization
which in its charter established the principle of the prohibition
on war. It only allows very exceptionally (if in response to aggression
or with the approval of the UN itself) a state to conduct war.
With the war in Iraq, the U.S. and the United Kingdom have violated
theses principles.
In 1949, the conventions of Geneva (four conventions and two
protocols) fixed strict rules on the treatment of soldiers, prisoners
of war and civilians in armed conflicts. In the war in Iraq and
during the aggression war in Israel of July-August 2006 against
Lebanon, these conventions were heavily violated. In 1966, within
the framework of the UNO the very important treaties on the civil
and political rights and on the economic, social and cultural
rights were adopted. In 1950, the important treaty for protection
of human rights and fundamental freedoms had already been adopted
in Europe.
These progressive achievements of international law stand today
strongly under pressure and are ignored worldwide. As progressive
lawyers we must defend these fundamental rights obstinately: “fight
for these rights, for respect for these rights, for the concrete
application of it, for the extension of these rights.”
With this main point in focus, it will be clear that the “war
on terror” requires a particular responsibility on the shoulders
of progressive lawyers.
Power lines from the anti-terror policies of U.S. and
EU:
A permanent state of terror, a perpetual state of “war on
terror”
1. Extrajudicial killings, torture, secret prisons, secret
flights of prisoners.
The Philippines is the most terrible example of the strategy
to combat social and political oppression by the killings of their
activists (757 killed, 184 missing since Arroyo came into power
in 2001).
The secret prisons of the U.S. in countries like Egypt, Romania
and Poland and the secret flights with war-prisoners were reasons
for worldwide protests.
2. Exceptional “anti-terror” legislation
Before 11th of September there were in certain countries such
as Spain, the United Kingdom and Turkey special anti-terrorism
laws. Especially the Turkish law meant far-reaching restrictions
on the right to promote political change. This law came about
under the influence of the military dictatorship in Turkey. It
is thus not astonishing that in Turkey from the seventies on,
there was a record of number political prisoners.
What we see after 9/11 is that this type of fascist legislation,
which is normal to dictatorships, is introduced in almost all
countries. You can see it in the U.S. with the Patriot Act I and
II. In Europe, it is implemented by the application of a special
resolution of the European Union and in the Philippines with the
current law proposal.
The nature of this legislation means that a type of common political
offense is inserted in most penal laws whereas previously in most
of the penal laws only very specific political offenses had been
formerly registered, like for example collaboration with a foreign
enemy, insult of a Head of State, etc.
This kind of legislation implies that the political fight which
normally must be realized with political resources (debate, elections,
mass demonstrations, parliament, bills…) and that takes
place in the field of the executive and legislative powers, from
now on will also be conducted by the courts. This is a very dangerous
evolution because it makes an indictable offense of political
opposition and because it criminalizes politically other options
and actions.
The nature of all this legislation is that it is meant to maintain
the existing capitalist order in each country and that it blocks
the social action for social and political improvement. This is
also said in an explicit way in all those laws.
All these laws against terror introduce a broadly defined prohibition:
- To modify the existing political, economic and social order
of the country, in other words it is considered terrorism to
stand up for another form of society than the one where private
property of production resources and of the capital dominates;
- To force the governments and international institutions with
radical resources not to take certain decisions or to force
them to take certain decisions they do not want to take;
- “To scare the population”: which is meant to
cover organizing broad social action, and instilling fear for
example about general strikes
These laws therefore mix political actions with crime: In other
words they make a criminal action out of a political action and
strip it of its political character (depoliticize political activities).
They stigmatized a wide range of legitimate political activity
as “terrorism”. This law created “terrorist
suspects” by redefining terrorism in broader ways, blurring
any distinction between anti-government protest and organized
violence against civilians, by placing entire communities under
suspicion of associating with such “terrorism” by
waging psychological warfare through disinformation and mass media
scares about “Al Qaeda cells”.
All these laws impose very heavy sentences, going in certain
countries to the death penalty. They lead to a massive increase
of political prisoners like in Turkey.
All these laws not only punish individuals for what they do,
but introduce also the so-called association-indictable offense.
This means that the mere membership in an organization that is
considered terrorist, even the legal contribution to that organization
without even being member, or the solidarity with such an organization
also will be considered “terrorist”.
The idea of terrorism is extended to several forms of social
fight and protest. Dissident political and trade union opinions
become criminalized. An environment movement such as Greenpeace
or animal rights activist is even prosecuted as terrorist in some
countries.
These exceptional laws also lead to exceptional procedures in
court, to special anti- terrorism courts, to courts established
behind closed doors and lose in this way the public’s access,
to strategies that avoid the normal guarantees in trials (e.g.
secret proof, especially selected lawyers, prohibition among other
things for lawyers to make certain information known to client
or press), to special system and long periods of “incommunicado”
of the suspect (e.g., proposed Philippine law: 15-day detention
before appearance in front of a judge) something that opens the
door for the application of torture during interrogations.
On 19 September 2001, barely 8 days after 9/11, the EU came up
with a framework decision against terrorism and a framework decision
for a European warrant of arrest. Because of the framework decision
against terrorism, all EU countries were obligated to draw up
anti-terror legislation in their own penal codes. This happened
in 2004. This new legislation means a historical intervention
in criminal legislation: for the first time in history, a very
broadly defined and general political crime is added to the penal
code, with heavy punishment and with punishment for mere membership
(also when the person has done nothing wrong).
The definition of a terrorist crime is clearly a political crime.
What is defined as a terrorist purpose: disclosing or destroying
the political, constitutional, economic or social basic structures,
forcing a government to abstain from an action; and inflicting
grave fear on the population of a country.
These are pre-eminently political intentions.
Anyone, like the European dockworkers who want to compel the
European Commission to withdraw its directive to liberalize the
hiring of dockworkers, falls under this definition. Those who
carry out anti-globalization activities against capitalism and
who want another society, also fall under this category. So, this
goes much further than combating Al Qaeda, and makes clear that
Al Qaeda, in fact is a pretext to go after anyone who opposes
in a radical way.
3. Administrative repression replaces more and more repression
by means of the criminal law. Lists of “terrorists”.
There is a tendency to politically repress more and more by means
of the administrative process. The administration, the executive
power and the government act in name of the courts. A number of
guarantees, recognized in criminal law: right to due process,
right to objection, right by a lawyer, right to examination of
the file and the evidence disappear in that way. These administrative
measures are based on unverifiable information of security services.
It is already this way in the United Kingdom with the so-called
control orders. By means of these control orders the government
can take very far-reaching measures (administrative detention,
house judgment, prohibition for communication with third parties,
only lawyers indicated by the state can act in the purely administrative
procedure…) without the necessity to prove a violation on
penal law.
The most far-reaching example is of course the U.S. prison of
Guantanamo. One single command of the president of the U.S. and
of the government of this country mean that about 400 prisoners
are stuck in this prison, some for already five years, without
any form of due process, of (being detained) without charge.
That this is the real strategy behind the EU anti-terror policy
is confirmed by the so-called list of terrorist organizations
and individuals. This list has been drawn up by the EU without
any defense by the concerned and without any right to defend himself.
As a consequence, anyone on the list is deprived of all financial
means to undertake political actions, and that the branding with
the label “terrorist” scares anyone who wants to be
in solidarity with the person or organization.
The criminalizing effect therefore not only on Al Qaeda is evident
because there are also liberation movements which for decades
have been struggling against tyranny, oppression or occupation.
Movements like the NPA (New Peoples’ Army) in the Philippines,
(and the chief political consultant of the panel of the National
Democratic Front of the Philippines in peace talks with the Government
of the Republic of the Philippines, Professor Jose Maria Sison)
and the PFLP (Popular Front for the Liberation of Palestine) or
the Iranian Mujaheddin are on the list. The struggles of these
organizations are legitimate under international law, but this
right to (armed) resistance is now downgraded by the EU to a criminal
act.
4. Complete control of the population and extension of
the secret investigation methods of the police force – and
security services.
In every country of the world, large-scale measures which allow
the checking of the activities of the population are taken.
This happens by massive registering of data (data which by means
of the internet, mail movement, telephone, databank – swift
scandal-…are obtained). The U.S. obliges other countries
to pass on details about all kinds of personal information (e.g.
eating habits…) of plane passengers to the U.S. These massive
fact files are digitally verified by means of code words. Thus,
enormous analyses and lists are made about individuals and organizations,
of which majority does nothing else but in a legitimate manner
practice their civil liberties. These analyses are used to criminalize
social protest. In that way the big brother society has become
a fact.
This is done by giving to the judicial service and police force,
but now also more and more to the information – and security
services (of state, of the army) the possibility to use particular
control methods without judicial or parliamentary control: infiltration,
letter, telephone – and mail tap, observation, use of monitoring
equipment, house seeking without democratic control and without
opportunity of the touched person to resist.
There is a worldwide tendency to use these data collected by
secret services, collected within the framework of the security
policy of a state, also in criminal law. This breaks through the
borders of the criminal law seeing that data from security investigations
are not intended for criminal prosecution.
5. From Terrorism to Extremism and Radicalism
The “war against terror” is a conscious strategy
of the EU and the United States against every resistance directed
at neo-liberal capitalism. This is further made evident from the
fact that since 2004, in one breath, “extremism and radicalism”
are put in the same category with terrorism. Naturally, the excessive
profits of the multinationals in, for example, the bank or petroleum
sector, are not meant here. The struggle against extremism is
being peddled as a struggle against the fundamentalist and radical
tendencies in the Muslim world and especially among Muslim migrants
in Europe.
But this flag does not cover the entire cargo. Under extremism
is envisioned all individuals and organizations who in one way
or another question the existing society, even environmental activists
like Greenpeace. A striking example of this is the secret list
of the police service in Antwerp (a port city in Belgium with
420.000 residents) which was exposed in 2005. In the list of “terrorist
and extremist” organizations of the city were more than
200 names of persons and organizations, 99 percent of whom undertake
legal and open social and political activities. These were migrant
organizations, printing presses, humanitarian organizations, protectors
of animal rights, and progressive lawyers. In this way, under
the cover of the fight against terrorism, the most flagrant violations
of the basic rights become “normal” practice.
The existence of such a list means that persons and organizations
will be followed, their privacy violated, their right to free
organization and freedom of speech curtailed. In this way, the
understanding of terrorism is expanded to all forms of protest
and resistance in the political, trade union and social fields.
6. Restrictions on fundamental rights
I’ll give you one very concrete and recent example that
indicates how far fundamental rights are damaged. At the end of
September 2006 the American Senate approved the “Military
Commissions Act”. Military interrogators can now use unorthodox
interrogation techniques to enforce suspects of terror to make
“confessions”, such as keeping suspects awake, keeping
them upright in stressful positions, exposing them to heat, water
and cold. Torture, forbidden by international treaties, becomes
in that way legalized. These barbaric methods mean the end of
the rule of law. Universal citizens rights which must protect
us against possible arbitrariness of the state, the army and the
police force are lost. The same “Military Commissions Act”
presents further military commissions for all persons qualified
by the president of the U.S. as “Unlawful Enemy Combatant”.
These military commissions are composed only of military judges,
the suspects are only defended by military lawyers or by civil
lawyers that must be screened and must acquire a special admission,
they work with secret information and proves which cannot be communicated
by the lawyer to its costumer, a large number of the indictable
offenses can be sanctioned with the death penalty. Also fundamental
Right of the Habeas Corpus (that nobody can be deprived of freedom
without a command of a judge and without right of objection at
a judge) is simply abolished. It is clear that this legislation
means the end of the rule of law.
Kellogg Brown & Root, a subsidiary of Cheney’s (U.S.
vice president) Halliburton, is constructing a huge facility at
an undisclosed location to hold tens of thousands of undesirables.
The “war on terror” of the EU infringes on other
fields. The framework decision on the European extradition order
has a consequence that within the EU, extradition also of those
politically suspected or convicted happens almost automatically.
A country used to be able to refuse the extradition of the person
in question if he was a citizen of the country, if he was a political
refugee, if it was a political crime, or if there was threat that
the person would be persecuted because of his religion, nationality
or political beliefs. All of these fundamental guarantees, which
were achievements in international law in the 19th century, are,
with one blow, abolished.
Another phenomenon is that the exception laws like the anti-terror
laws lead to exceptional procedures and to strategies to avoid
guarantees of due process. In this way the classic principles
of criminal law are eroded. More and more, there is work on secret
documents which the defense has no right to see. Special judges,
special solicitors and even appointed lawyers (so that the free
choice of a lawyer disappears are being implemented.
A shift has been established from the repression through criminal
law to the repression via administrative law, where even less
guarantees exist for the defense than in criminal law. A typical,
but very terrible example is the “control orders”
in the UK. With one control order, a person can be subjected for
months to all sorts of control regulations (for example, house
arrest, forbidden to exchange letters, telephone and visits from
friends) can happen through a decision of the minister of internal
affairs on the basis of a secret dossier without any judicial
review.
This example illustrates a more general tendency in the EU: the
increasingly bigger hold of the executive authority (to the detriment
of the legislative and judicial authority power). The executive
authority, (EU Council of Ministers, EU commission, national governments,
police, info and security services, solicitors) determine more
and more which laws will be passed (they dictate these to the
parliaments of the different EU countries and to the European
Parliament) and they decide more and more practice of the repression.
The control orders but also the EU list of the so-called terrorists
are the most typical examples of this. It is very important that
in most of the EU countries, during the last few years, laws have
been made allowing the police, secret and info services of the
country entrance to use extraordinary investigation methods. These
extraordinary investigation methods (tapping, infiltration, surveillance)
are almost without judicial controls and so broad that every individual
that is under suspicion to have the intention to commit a crime,
can be the subject of this.
7. What is still in the Pipeline?
The G8 wants to sharpen the repression in two areas.
First, they want the anti-terror laws in all the countries to
be even more broad so that the “apology” (the justification)
of a terrorist act, will be punishable. This is a very dangerous
tendency because this can lead to suppression of press freedom.
Which journalist will now dare give news about, for example, liberation
movement in the Third World if he himself will risk being accused
of being a terrorist?
Secondly, they want that the information that security services
collect by using secret investigation procedures can be used in
criminal cases. The problem here is that this secret information,
even during the court hearing, in large measure, must remain secret,
which, naturally, leads to the giving of secret criminal dossiers
and to special judges and specified lawyers who must guarantee
this secrecy.
Increasing Resistance
There is worldwide a growing resistance against this “war
on terror” which has degenerated into war against fundamental
rights and especially to the criminalizing of every political
and social movement that dares to questions the exploitation of
capital with the scandalous profits and enrichment of a fraction
of the population.
Jo Stevens, Chairperson of the Orde van Vlaamse Balies, (Order
of Flemish Associations in Belgium), and which represents more
than 8,000 lawyers in Belgium, expressed it in his New Year speech
as follows: “Because a gentleman in America has declared
the war on terror, we have become lawyers in the time of war.
The rights and freedom that Europe through the centuries centimeter
by centimeter has fought for are now being reversed. The fundamentalists
of prevention and repression threaten our rule of law more than
the religious fundamentalists.”
This standpoint I can adopt wholeheartedly. It is also a call
to the progressive lawyers, together with the broad social and
trade union movement to defend the fundamental rights, especially
the right to social improvement.
Program
- Stop extra-judicial killings, independent investigation of
the killings, punishment of the responsible persons;
- Campaign for the repeal of the exceptional anti-terrorist
laws;
- Oppose any measures which could criminalize mere association
with a political organization, or which involve detention without
charge, or restrictions on freedom of speech, association or
publication;
- Defend the democratic freedom of dissent and to resist oppression,
nationally and internationally; respect for the right to oppose
tyranny and state-oppression.