[1] United Nations Office for Drug Control and Crime Prevention, "UN Action Against Terrorism", <http://odccp.org/terrorism.html>, at 19/06/02. The definition of terrorism, as adopted and used by the UN Office for Drug Control and Crime Prevention, is "An anxiety-inspiring method of repeated violent action, employed by a (semi-) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby - in contrast to assassination - the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat and violence-based communication processes between terrorist (organisation), (imperilled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on what the intimidation, coercion, or propaganda is primarily sought".
[2] The United Nations Office for Drug Control and Crime Prevention (ODCCP) reports that Arab States such as Libya, Syria and Iran have all campaigned for a definition that excludes acts of "freedom fighters" from the international definition of terrorism, by employing the argument that a justified goal may be pursued by any available means: ibid.
[3] This is maintained by the United States Federal Bureau of Investigation and may be accessed by internet: <http://www.fbi.gov/mostwant/terrorists/fugitives.htm>.
[4] The Observer, 30 September 2001, quote contained within Submissions of the Indonesian Human Rights Committee to the Foreign Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression Bill, TERRO/88, Parliamentary Library, Wellington.
[5] As at 1 September 2002. The UN Conventions on terrorism are (in alphabetical order): Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971 (Australia signed 12 October 1972 and ratified 12 July 1973, New Zealand signed 26 September 1972 and ratified 12 February 1974); Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988 (Australia and New Zealand have both signed and ratified); Convention for the Suppression of Unlawful Seizure of Aircraft 1970 (Australia signed 15 June 1971 and ratified 9 November 1972, New Zealand signed 15 September 1971 and ratified 12 February 1974); Convention on Offences and Certain other Acts Committed on Board Aircraft 1963 (Australia signed 22 June 1970 and ratified 20 September 1970, New Zealand signed 12 February 1974 and ratified 13 May 1974); Convention on the Marking of Plastic Explosives for the Purpose of Identification 1991 (Australia and New Zealand have neither signed, nor ratified); Convention on the Physical Protection of Nuclear Material 1980 (Australia signed 22 February 1984 and ratified 22 September 1987, New Zealand has neither signed, nor ratified); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973 (Australia signed 30 December 1974 and ratified 20 June 1977, New Zealand joined by accession on 6 December 1988); International Convention Against the Taking of Hostages 1979 (Australia joined by accession on 21 May 1990, New Zealand signed 24 December 1980 and ratified 12 November 1985); International Convention for the Suppression of Terrorist Bombing 1997 (Australia and New Zealand have neither signed, nor ratified); International Convention for the Suppression of the Financing of Terrorism 1999 (Australia signed 15 October 2001, but has not yet ratified, New Zealand signed 7 September 2000, but has not yet ratified); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988 (Australia and New Zealand both signed and ratified); and Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation 1988 (Australia joined by accession on 23 October 1990, New Zealand signed 11 April 1989 and ratified 2 August 1999).
[6] As reflected in both the preamble and article 1 of the Charter of the United Nations. The United Nations Security Council has the specific mandate, through article 24 of the Charter, to do so.
[7] The phenomenon of terrorism became an international concern in the 1960s when a series of aircraft hijackings hit the headlines. Additionally, when the 1972 Munich Olympic Games were disrupted by a Palestinian group's attempt to take Israeli athletes hostage, the then Secretary-General of the UN, Kurt Waldheim, asked that the issue be placed on the General Assembly's agenda. In the heated debate that followed, the Assembly assigned the issue to the its Legal Committee, which subsequently proposed the various conventions on terrorism that have been outlined above, n 7.
[8] United Nations General Assembly Resolution 49/60, in which the General Assembly adopted the "Measures to Eliminate International Terrorism", Annex to A/RES/51/210, 9 December 1994.
[9] Ibid, as is evident through its Preamble.
[10] Ibid, paragraph 2.
[11] Ibid, paragraph 1.
[12] Ibid, paragraph 6.
[13] Ibid, paragraph 4.
[14] Established under General Assembly Resolution 51/210 (1996).
[15] Ibid, paragraph 9.
[16] India's Draft Comprehensive Convention on International Terrorism (2000). Due to the lack of unanimity on various issues, and the range of issues involved, the Committee concluded that finalising a comprehensive international treaty on terrorism would depend primarily on agreement on who would be entitled to exclusion from the treaty's scope, and on what grounds. Otherwise, the majority of the 27 articles of the Draft Convention were preliminarily agreed upon at the Committee's last two sessions. See Ad Hoc Committee Established by General Assembly Resolution 51/210, Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210 on a Draft Comprehensive Convention on International Terrorism, A/AC.252/2002/CPR.1 and Add.1, 1 February 2002.
[17] United Nations Security Council Resolution 1368, S/RES/1368, 12 September 2001.
[18] Ibid, paragraph 3.
[19] United Nations Security Council Resolution 1373, S/RES/1373, 28 September 2001. Within paragraph 1 of the Resolution, the Security Council requires members of the United Nations to: (a) Prevent and suppress the financing of terrorist acts; (b) Criminalize the willful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; (c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities; and (d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons.
[20] Richard Rowe, "Key Developments: Year of International Law in Review", a paper presented at the 10th Annual Meeting of the Australian & New Zealand Society of International Law, New Challenges and New States: What Role for International Law?, 15 June 2002, Australian National University, Canberra. Richard Rowe works in the International Organisations and Legal Division of the Australian Department of Foreign Affairs and Trade. He was the Australian representative and Vice-Chairman of the Ad Hoc Committee Established by General Assembly Resolution 51/210 during its Sixth Session, which followed the September 11 attacks.
[21] As a decision made under Chapter VII of the United Nations Charter, compliance with the latter Resolution is mandatory under international law: see Article 25 of the United Nations Charter.
[22] For example: in New Zealand, significant amendments were made to the Terrorism Suppression Bill (Bill 121/1 of the Forty-Sixth Parliament of New Zealand), which had earlier been introduced but lacked provisions dealing with the obligations under Resolution 1373; Australia has introduced a package of legislation, at the centre of which lies the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (for further details of the legislative package, see the web site of Amesty International Australia <http://www.amnesty.org.au/airesources/factsheet-02-06-16.html> at 30 October 2002); Canada passed the Anti-Terrorism Act at the end of 2001; and the United Kingdom adopted the Anti-terrorism, Crime and Security Act 2001.
[23] See Submissions of the Canterbury Council of Civil Liberties to the Foreign Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression Bill, TERRO/45, Parliamentary Library, Wellington.
[24] Arena website, "Canterbury Council of Civil Liberties Responds to Terrorism Bill", Republished (with permission) from the Council's Newsletter (No 1, April 2002), <http://arena.org.nz/tercivlb.htm>.
[25] Media Release, "New Document Reveals what the Government Really Wanted in the Terrorism Suppression Bill", 15 May 2002 <http://arena.org.nz/gateumrj.htm>.
[26] The Terrorism Suppression Bill definition of a "terrorist act" falls into three categories. First, conduct that constitutes an offence under any of the 12 terrorism conventions (clauses 4(1) and 5(1)(b)), e.g., the funding of terrorist organisations. Secondly, any conduct that, during armed conflict, is intended to cause death or serious injury to non-military persons with the aim of compelling a government or organisation to do or abstaining from doing anything (clauses 4(1) and 5(1)(c)), e.g., "human shields". Finally, conduct that is intended to advance an ideological, political, or religious cause AND intended to induce terror in a civilian population; or compel a Government/organisation to do or abstain from doing something AND intended to cause death or serious injury; or a serious risk to the health or safety of a population; or destruction or serious damage to property of significant value or importance: clause 5. Most of the international solidarity groups that have been active in New Zealand in recent years, says David Small, would be outlawed under the latter broad definition - pointing to Philippines Solidarity, Nicaragua Must Survive, Kanak Solidarity, the anti-apartheid movement, East Timor Independence Centre as well as fundraising events for Bougainville, West Papua, Native Americans, Chile, Eritrea, and El Salvador.
[27] Electronic Frontiers Australia Inc. Media Release, "Senate Rejects Email Snooping Law - Victory For Online Privacy", 28 June 2002. See also: Electronic Frontiers Australia Inc. (EFA) Campaign Action Alert, <http://www.efa.org.au/Campaigns/alert200205.html> at 31 May 2002; EFA analysis of the Telecommunications Interception Legislation Amendment Bill and its effect on existing privacy protections <http://www.efa.org.au/Issues/Privacy/tia_bill2002.html>; EFA's On-line Surveillance and Interception Laws page <http://www.efa.org.au/Issues/Privacy/surveillance.html#laws>; and Senate Hansard, <http://www.aph.gov.au/hansard/senate/dailys/ds270602.pdf> at
[27] June 2002.
[28] The ruling was only released in August 2002 with a follow up ruling of the Court: see Associated Press, "U.S. court orders rules on wiretap modified", <http://etaiwannews.com/World/2002/08/24/1030154431.htm> at 24 August 2002.
[29] Justice Department spokeswoman Barbara Comstock said the Court incorrectly interpreted the Patriot Act, and that the effect of that incorrect interpretation was to limit the kind of coordination that the Government saw as being very important to counter-terrorism. The Patriot Act, passed late in 2001, changed the surveillance law to permit its use when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose," of such an investigation. Critics at the time said they feared government might use the change as a loophole to employ espionage wiretaps in common criminal investigations.
[30] See, for example, Submissions of the Privacy Commission to the Foreign Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression Bill, TERRO/44W, Parliamentary Library, Wellington.
[31] CBC News Online, "What does the anti-terrorism bill propose to do?", <http://cbc.ca/news/indepth/us_strikingback/backgrounders/canada_antiterrorlaw.html> at 1 November 2001.
[32] Darrin Farrant, "Anti-terrorist or anti-democratic?", <http://arena.org.nz/teroz.htm> at 2 May 2002.
[33] Ibid.
[34] The allegations have been the subject of investigation by a Special Representative of the United Nations, Hina Jilani, who conducted a six-day visit to Guatemala that ended on 1 June 2002.
[35] See The Guardian "Calls Mount for return of Camp X-Ray Britons" (Sarah Left reporting), 25 February 2002, and "Rumsfeld attacked over Cuba prisoners" (Richard Norton-Taylor reporting), 25 February 2002. See also Barrett, Justice R.I. "Current Issues: Camp X-Ray" (2002) Vol 76 Australian Law Journal 408.
[36] The White House Office of the Press Secretary, "Fact Sheet: White House on Status of Detainees at Guantanamo: Says treatment consistent with principles of Geneva Convention, 7 February 2002. United States Policy on the status of detainees in Guantanamo, Cuba is set out within the latter document as follows: "The United States is treating and will continue to treat all of the individuals detained at Guantanamo humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949; the President has determined that the Geneva Convention applies to the Taliban detainees, but not to the al-Qaida detainees; al-Qaida is not a state party to the Geneva Convention (as a foreign terrorist group, its members are not entitled to prisoner of war status); although the US has never recognised the Taliban as the legitimate Afghan government, Afghanistan is a party to the Convention, and the President has determined that the Taliban are covered by the Convention; under the terms of the Geneva Convention, however, the Taliban detainees do not qualify as POWs; even though the detainees are not entitled to POW privileges, they will be provided many POW privileges as a matter of policy".
[37] CBC News Online, "Muslims, Arabs denounce Canada's anti-terror bill", <http://cbc.ca/cgi-bin/templates/view.cgi?/news/2001/11/06/terror_bill011116> at 16 November 2001.
[38] See Public Submissions to the Foreign Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression Bill, 2002, Parliamentary Library.
[39] Razvi, Justice R.A. (High Court of Sindh, Pakistan), "Can Terrorism be Countered Effectively without Compromising Human Rights?", a paper presented at the International Bar Association Human Rights Institute Conference Access to Justice and Fundamental Rights, Lahore, Pakistan, 30 - 31 March 1998.
[40] Shah, N.H., (former Chief Justice of Pakistan), "Can Terrorism be Countered Effectively without Compromising Human Rights?", a paper presented at the International Bar Association Human Rights Institute Conference Access to Justice and Fundamental Rights, Lahore, Pakistan, 30 - 31 March 1998.
[41] Associated Press, "Top U.N. human rights official worries China using 'war on terrorism' to crush dissent", Beijing, <http://famulus.msnbc.com/FamulusIntl/ap08-20-013345.asp?reg=PACRIM at 20 August 2002.
[42] The Christchurch Press, "Teenager denied passport on terrorism fear", 26 August 2002, p.B1.
[43] Address of the UN Secretary General to the General Assembly, 18 November 1999.
[44] Above n 41, p.11.
[45] A point made by Treasa Dunworth in her address "New Zealand's Legislative Responses to September 11", a paper presented at the 10th Annual Meeting of the Australian & New Zealand Society of International Law, New Challenges and New States: What Role for International Law?, 16 June 2002, Australian National University, Canberra.
[46] As recognised within the preamble of the International Covenant on Civil and Political Rights: see discussion below.
[47] An example made in the New Zealand Department of Justice report, A Bill of Rights for New Zealand - A White Paper, Government Printer, Wellington, 1985, 71.
[48] More specifically the right to life (as reflected in article 6 of the United Nations Convention on the Rights of the Child, CRC); and the requirement to give effect to the best interests of the child (article 3 of the CRC).
[49] See article 18(1) of the International Covenant on Civil and Political Rights; and section 13 of the New Zealand Bill of Rights Act 1990.
[50] Which is implemented into New Zealand's domestic law through the New Zealand Bill of Rights Act 1990.
[51] Similarly, article 1 of the Canadian Charter of Rights and Freedoms, upon which New Zealand's section 5 NZBORA is based, provides that "[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
[52] Article 4(1) contains the substance of the exception, stating that "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin."
[53] Article 4(2) qualifies the ability to derogate by stating that "No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision" - those articles relating to the right to life (article 6), freedom from torture or to cruel, inhuman or degrading treatment or punishment (article 7), the prohibition of slavery and servitude (article 8(1) and (2)), freedom from imprisonment for failure to fulfil a contract, freedom from retrospective penalties (article 15), the right to be recognised as a person before the law (article 16) and freedom of thought, conscience and religion (article 18).
[54] Article 4(3) of the Covenant.
[55] General Comments are intended to be used by States party as a tool for interpretation and implementation of rights commented upon.
[56] Derogation of Rights (Art. 4), CCPR General Comment 5 (31/07/81).
[57] The term "state of emergency", rather than "public emergency" is that adopted by the Human Rights Committee within its General Comment 5 (ibid, paragraph 2). It does not, however, reflect the actual wording or article 4(1), which refers to "public emergency" only. This is an important distinction, since (in the author's view) the latter phrase has a wider meaning than "state of emergency". Ultimately, it should be noted that General Comments of the Human Rights Committee are made by the Committee for the purpose of assisting interpretation and application of ICCPR provisions and are without legal standing. While they certainly might indicate the way in which the Committee might address a complaint presented to it, General Comments do not function as a binding interpretation or direction. The making of General Comments is not even, in fact, set out within the ICCPR or its optional protocols as part of the Human Rights Committee's functions.
[58] Prohibited by article 7 of the ICCPR, this being non-derogable because of the limitation contained within article 4(2).
[59] Above n 57, paragraph 3.
[60] See Commission on Human Rights Resolution 1999/27, "Human Rights and Terrorism", E/CN.4/RES/1999/27, paragraph 9, which states that the Commission "Urges all relevant human rights mechanisms and procedures, as appropriate, to address the consequences of the acts, methods and practices of terrorist groups".
[61] J Evans, Statutory Interpretation. Problems of communication ( Auckland, Oxford University Press, 1989), p2.
[62] [1981] 1 NZLR 222 at 229.
[63] United Nations General Assembly Resolution 50/6 "Declaration on the Occasion of the Fiftieth Anniversary of the United Nations", A/RES/50/6, 24 October 1995.
[64] Ibid, paragraph 1(4).
[65] United Nations General Assembly Resolution 54/164 "Human Rights and Terrorism", A/RES/54/164, 24 February 2000. See also the recent resolution of the United Nations Economic and Social Council's Commission on Human Rights, "Human Rights and Terrorism", E/CN.4/RES/2001/37, 23 April 2001.
[66] As adopted at the World Conference on Human Rights of 1993 through the Vienna Declaration and Programme of Action of 25 June 1993.
[67] See the preamble, which reads (in part): "Seriously concerned about the gross violations of human rights perpetrated by terrorist groups, Profoundly deploring the increasing number of innocent persons, including women, children and the elderly, killed, massacred and maimed by terrorists in indiscriminate and random acts of violence and terror, which cannot be justified under any circumstances"
[68] Paragraph 2.
[69] Ibid, paragraph 3.
[70] Above n 66. The Resolution itself contained nine operative paragraphs, through which the General Assembly (inter alia) called upon States to take all necessary and effective measures to prevent, combat and eliminate terrorism in all its forms and manifestations, wherever and by whomever committed (paragraph 4).
[71] Currently being 189, although Switzerland has now formally applied to become a member of the United Nations - its application is expected to be considered by the United Nations General Assembly in September 2002. Assuming that it does become the 190th State member of the organisation, this will mean that all States, other than the Vatican, will be represented within the United Nations.
[72] [1983] 41 OR (2d) 113, 124.
[73] MOT v Noort; Police v Curran [1992] 3 NZLR 260, 271 and 283.
[74] [1994] 1 NZLR 48. Note that the position regarding the standard of proof is not as clear in Canada: see KIS Films Inc v Vancouver (1992) CRR (2d) 98, at pp 113-114.
[75] Ibid, 61.
[76] [1984] 2 SCR 66.
[77] Ibid, 87.
[78] [1988] 2 SCR 712.
[79] Ibid, 774.
[80] See, for example, Submissions by Human Rights Commission to the Foreign Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression Bill, TERRO/132, Parliamentary Library.
[81] (1978) 58 ILR 491, 524-527.
[82] 1 NZBORR 429.
[83] [1983] 5 EHRR 347.
[84] R v Thomsen (1988) 63 CR (3d) 1, 10. Regulations were also held to be satisfactory by the SCC in R v Therens [1985] 1 SCR 613. Application of the Sunday Times test can be seen in Re "Penthouse (US)" Vol 19 No 5 and others, above n 83, where the Indecent Publications Tribunal of New Zealand held that policies based on statutory criteria satisfy the test. The European Court in Silver v UK, above n 84, found that while the Prison Act and Prison Rules met the criterion of adequate accessibility, unpublished orders and instructions did not.
[85] [1992] 3 NZLR 260, 272 and 283.
[86] [1985] 1 SCR 613.
[87] Above n 85, 283 (per Richardson J).
[88] [1984] 45 OR (2d) 80.
[89] See, for example, Submissions by the Canterbury Council for Civil Liberties to the Foreign Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression Bill, TERRO/45, Parliamentary Library.
[90] [1994] 1 NZLR 48 - the Full Court being a two-member High Court of the Criminal Division, in this case Eichelbaum CJ and Greig J.
[91] (1986) 26 DLR (4th) 200.
[92] That decision was later affirmed and followed by the Supreme Court of Canada in Irwin Toy Ltd v Quebec (Attorney-General) (1989) 58 DLR (4th) 577 and Re A Reference re Public Service Employee Relations Act [1987] 1 SCR 313, 373-374. The latter case was referred to with approval by the NZCA in MOT v Noort; Police v Curran, above n 86, 283. Cases have, however, moved away from requiring limitations to impair rights "as little as possible" (requirement (2) of the proportionality test) to a more flexible test of "as little as reasonably possible".
[93] Above n 91, 60-61. This was subsequently cited with approval in Duff v Communicado Ltd [1996] 2 NZLR 89. Note that in MOT v Noort; Police v Curran, above n 86, (which pre-dates the latter case law) Richardson J said at p.283: "It is worth emphasising too that in principle an abridging inquiry under s 5 will properly involve consideration of all economic, administrative and social implications. In the end it is a matter of weighing (1) the significance in the particular case of the values underlying the Bill of Rights; (2) the importance in the public interest of the intrusion on the particular right protected by the Bill of Rights; (3) the limit sought to be placed on the application of the Bill provision in the particular case; and (4) the effectiveness of the intrusion in protecting the interests put forward to justify those limits."
[94] The Foreign Affairs, Defence and Trade Select Committee presented its final report to Parliament on March 2002. Due to the early elections of July 2002, however, Parliament closed early and has not yet had an opportunity to consider the Bill further.
[95] Action Research and Education Network of Aotearoa (ARENA): <http://www.arena.org.nz/canbil.htm>. Arena is a network of individuals and organisations which holds itself out as being committed to resist globalisation in all its forms. "Arena" stands for an alternative development model based on self-determination, social justice, genuine people-centred development and environmental sustainability: see Arena home page <http://www.arena.org.nz>.
[96] See above discussion within Part IV(B) of this article. See, in particular United Nations General Assembly Resolutions 50/6 (above n 64) and 54/164 (above n 66); the Vienna Declaration and Programme of Action (above n 67); and United Nations Commission on Human Rights Resolution 1999/27 (above n 66).
[97] Above n 86, 274.
[98] [1978] 1 FC 233, 235-236. This was quoted with approval by Lamer CJ in Genereux v R 1 SCR 259, 292.
[99] Above n 91, 60-61. This was subsequently cited with approval in Duff v Communicado Ltd [1996] 2 NZLR 89. Note that in MOT v Noort; Police v Curran, above n 86, (which pre-dates the latter case law) Richardson J said at p.283: "It is worth emphasising too that in principle an abridging inquiry under s 5 will properly involve consideration of all economic, administrative and social implications. In the end it is a matter of weighing (1) the significance in the particular case of the values underlying the Bill of Rights; (2) the importance in the public interest of the intrusion on the particular right protected by the Bill of Rights; (3) the limit sought to be placed on the application of the Bill provision in the particular case; and (4) the effectiveness of the intrusion in protecting the interests put forward to justify those limits."