Thought for the day: On terrorist entities.

datePosted on 14:49, September 3rd, 2020 by Pablo

Now that he has been convicted and sentenced, including on a charge of committing a terrorist act (to which he admitted guilt), the Christchurch killer has been designated a “terrorist entity” by the government, using provisions of the Terrorism Suppression Act 2002. Designating the killer as a terrorist entity means that his assets can be seized, his (online/other) fans can be prosecuted as terrorist supporters and creating funding platforms for his legal appeals or other reasons are now punishable offenses. No GoFundMe pages for him, it seems, and racists will need to think twice and tread carefully when they sing his praises in any forum (which should make certain NZ rightwing blogs a bit more careful when moderating comments)..

This is a smart move on the government’s part. Although the intent of the 2002 legislation was clearly directed at Islamicists and the various fronts and support networks that aided their armed campaigns, the use of the legislation in its first instance–both in successfully charging the killer with a terrorist offence and in designating him as an “entity” so that others could not easily provide support or encouragement to him or other like-minded people–is a well executed step that in principle demonstrates that the law can be applied in a balanced fashion regardless of the ideological cause being espoused.

But the test of this balance remains to be seen. Imagine if Tame Iti and his ragtag assortment of activist friends had been charged and convicted of terrorist offences because of their Urewera shenanigans (which was the original intention of the Clark government). Would they have been designated as “entities” so that others of similar mind could not legally offer them or their various causes emotional and material support? What about environmental or animal rights militants, who are often labeled as “eco-terrorists” by rightwing politicians and media and the commercial outfits that the activists oppose? What about anti-1080 activists, who have shown a penchant for intimidation and violence? Or the Sea Shepard Society, which Japan has designated as a terrorist group (and pirates) because it has used direct action tactics against whalers in the Southern Ocean and elsewhere?

The old saying “one person’s terrorist is another person’s hero” comes to mind here. The label can be applied to anyone who, under the broad definition of “national security” in New Zealand legislation, causes “harm” to the national economy, social order or reputation regardless of whether they used violence in pursuit of their objectives. Accordingly, the use of the term “terrorist” has been stretched by politicians, media mouthpieces and corporate and/or interest groups to cover a variety of non-murderous people agitating for a wide range of causes.

That is why the use of the term “terrorist” and the designation of terrorist entities must be done under strict guidelines and in the most extreme of circumstances. While international designators are helpful–say, in labelling Daesh as a terrorist entity or NZ expats clearly identified as having participated in its genocidal activities as terrorists–it remains for the Crown to rigorously scrutinise the criteria by which people and groups are placed in such categories. That must be objective, factually-based and proportionate to the harm committed. Above all, it must not be left to the government of the day, less partisan opportunism rear its ugly head in the application of justice.

The Christchurch killer made it easy on the Crown–and on the security agencies that allowed him to slip under the radar when planning and preparing the attacks–when he pleaded guilty to all charges. The sentencing was heavy on drama and pathos but the outcome was foretold and inevitable. The post-sentencing designation of the killer as an entity was an adroit touch. But one wonders if that designation should have come from the court at the time of sentencing rather than from the government after the sentence was handed down.

In any event, the first successful application of terrorism charges and terrorist entity designations is a salutary milestone in NZ jurisprudence and security affairs, but it is not without its potentially negative implications in future circumstances. That should be the guiding (or better said, self-limiting) principle in any future consideration of their use.

16 Responses to “Thought for the day: On terrorist entities.”

  1. Pablo on December 3rd, 2019 at 19:26

    JG:

    I have written previously on how I do not think that “terrorism” should be treated as a particular or distinct criminal offence. Doing so creates a separate and specific category of violent political crimes, which in turn elevates them to a special status that can be used in many ways other than the original intent (of punishing certain types of politically motivated offences). Sedition laws already outline a special category of offences directed at the State, and even if no longer applicable in NZ, the point is that making crimes against the State–even if directed at the unsuspecting public as subjects of that State–actually elevates rather than diminishes the impact of those acts. The introduction to Foucault’s Discipline and Punish spells out the true purpose of such politically-based criminal categorisations.

    Terrorism is no more the use of violence against general (unarmed/unsuspecting/innocent/whatever) populations for ideological, political, sectarian or criminal purposes. It can be used by state, non-state, proxy and private actors. It has a target, subject and object. But if you break it down to its basics, it is just another crime–mass murder, intimidation and/or extortion by violence, deprivation of liberty, etc. All of these offences can be dealt with by criminal law without elevating them to a special category of crimes. But because they involve the State as ultimate subject, they get treated differently, and specially.

    The key to juridically handling such offences is to focus on the crime, not the motivation. Let the evidence speak, then convict and sentence accordingly. Anything else provides a pulpit rather than a judicial platform for all involved.

    That being said, now that the categorization of certain types of (politically motivated ) violence has been codified in law, the best thing to do is to see that it is not used for political, partisan or in gratuitous fashion. Charles Manson was a white supremacist freak who ordered mass murders because he believed in and wanted to provoke “Helter Skelter.” Yet he was judicially dealt with as a psychopathic maniac, not as a terrorist. He then became a matter of criminal folklore and his cause dissipated as a matter of political relevancy. So too must be the fate of the Christchurch killer, but alas, he has a special status in the pantheon of rightwing extremism, one that it in part derived from the special status of the crimes for which he was convicted.

    It is in that context that I support the decision to treat him as both a terrorist and a terrorist entity for the purposes of law (and deterrence).

  2. Jim Rolfe on September 3rd, 2020 at 15:58

    Interesting. I don’t think the legislation defines security, although I’m open to correction. My understanding is that it was too difficult. The national security handbook defines it in terms of a state of being. Well being in effect. I do think that terrorism is best left to ‘violence intended to achieve political change’ or something like that. Otherwise anything can be terroristic, as you point out. Very difficult.

  3. Pablo on September 3rd, 2020 at 16:20

    Thanks Jim:

    It looks like the definition has been tinkered with a bit over the last decade, but you are right, the Act does not define “national security” but instead lists activities that may constitute threats to national security. This is from the DPMC, referencing the Intelligence and Security Act 2017: https://dpmc.govt.nz/our-programmes/national-security-and-intelligence/intelligence-and-security-act-2017/defining-national-security.

    When you look at the “Alternative Approach Adopted” section, you see that there is mention of threats to economic security and NZ’s interests as well as control over natural resources. Basically, it is a broad brush (and admits as much) listing of potential threats because theses evolve and may be unforeseen. The definition of terrorism in the Terrorism Supression Act 2002 is more precise and yet still has some broad-brushed touches to it along the lines mentioned above.

    I would imagine that future governments will be circumspect in their usage of both Acts when it comes to charging people and designating individuals and groups as terrorists and/or terrorist entities. Or at least I hope so.

  4. James Green on September 3rd, 2020 at 17:07

    I would say terrorism is: isolated acts of violence that are politically motivated.

    With violence defined as: actions that are intended to hurt people. So sabotage isn’t terrorism.

    I find the inclusion of the word terrorism in laws to be questionable.

  5. Pablo on September 3rd, 2020 at 19:51

    JG:

    I have written previously on how I do not think that “terrorism” should be treated as a particular or distinct criminal offence. Doing so creates a separate and specific category of violent political crimes, which in turn elevates them to a special status that can be used in many ways other than the original intent (of punishing certain types of politically motivated offences). Sedition laws already outline a special category of offences directed at the State, and even if no longer applicable in NZ, the point is that making crimes against the State–even if directed at the unsuspecting public as subjects of that State–actually elevates rather than diminishes the impact of those acts. The introduction to Foucault’s Discipline and Punish spells out the true purpose of such politically-based criminal categorisations.

    Terrorism is no more the use of violence against general (unarmed/unsuspecting/innocent/whatever) populations for ideological, political, sectarian or criminal purposes. It can be used by state, non-state, proxy and private actors. It has a target, subject and object. But if you break it down to its basics, it is just another crime–mass murder, intimidation and/or extortion by violence, deprivation of liberty, etc. All of these offences can be dealt with by criminal law without elevating them to a special category of crimes. But because they involve the State as ultimate subject, they get treated differently, and specially.

    The key to juridically handling such offences is to focus on the crime, not the motivation. Let the evidence speak, then convict and sentence accordingly. Anything else provides a pulpit rather than a judicial platform for all involved.

    That being said, now that the categorization of certain types of (politically motivated ) violence has been codified in law, the best thing to do is to see that it is not used for political, partisan or in gratuitous fashion. Charles Manson was a white supremacist freak who ordered mass murders because he believed in and wanted to provoke “Helter Skelter.” Yet he was judicially dealt with as a psychopathic maniac, not as a terrorist. He then became a matter of criminal folklore and his cause dissipated as a matter of political relevancy. So too must be the fate of the Christchurch killer, but alas, he has a special status in the pantheon of rightwing extremism, one that it in part derived from the special status of the crimes for which he was convicted.

    It is in that context that I support the decision to treat him as both a terrorist and a terrorist entity for the purposes of law (and deterrence).

  6. Görkem on September 4th, 2020 at 05:49

    “Terrorism is no more the use of violence against general (unarmed/unsuspecting/innocent/whatever) populations for ideological, political, sectarian or criminal purposes.”

    Does that mean that the Allied bombing of German occupied Europe and Japan during WW2 was terrorism? It was violence against general populations for ideological/political reasons – laudable reasons, but still, defeating Nazism and Imperialism is an ideoogical/political end.

  7. Pablo on September 4th, 2020 at 08:18

    Yes, that is what is known in the dedicated literature as state terrorism during wartime. It has been argued that Hiroshima and Nagasaki were also examples of state terrorism during wartime since neither city was an important military target. Having studied under one of the actual targetters for the strikes on Japan, I believe from his lectures that the issue was a bit more complex because those cities were not the primary targets chosen, and instead were secondary targets chosen after weather prevented strikes on the primary objectives, which did have military significance. But even then, the under-riding objective was more psychological than military–to destroy the morale of the Japanese people to continue to support the fight. That was the object, the subject was the Japanese State and the target was the unfortunate people in both targeted cities.

  8. Görkem on September 4th, 2020 at 18:44

    Yeah I actually chose not to ask about Hiroshima and Nagasaki because they are almost universally agreed to be illegitimate. But the non-nuclear area bombings are rarely labelled as terrorism even though they were much more significant than the nuclear bombs, even within Japan. If we do agree that the allied area bombings were terrorism, does that make Roosevelt and Churchill terrorists?

  9. Görkem on September 4th, 2020 at 18:51

    Also I hate to nitpick but I do not think it is correct Hiroshima and Nagasaki had no military significance – one of the Japanese field armies had its HQ in Hiroshima, and Nagasaki was a major centre of arms production. But you are right the main goal of the bombings was not to destroy military capability directly but to degrade civilian morale.

    But I think that is the lesson that was learned in WW2 – a country’s military capacity is degraded more effectively through attacks on civilians, e.g. terrorism, than through targeting of military infrastruture.

  10. Pablo on September 4th, 2020 at 19:32

    Actually, when the State uses terroristic tactics it is generally labeled as a kinetic operation designed for psychological effect, and there is a broad range of such operations. The same holds true down to the military unit level, but to the sovereign goes the right to adjudicate what is and is not permissible in warfare. The Laws of War (jus in bello) were created precisely for that purpose but are all too often honoured in the breach. So be it conventional fire bombing or city-killing nukes, winners of interstate wars get to decide what constitutes war crimes and, even with codes of conduct in place like the USCMJ they rarely reflect upon their own conduct or that of their troops if the crime rises above individual misconduct. For example, even with credible evidence provided by journalists with regard to the NZSAS in Afghanistan, has any soldier or unit commander in the NZSAS been courtmartialed for war crimes (or anything, for that matter)? Have any Russians been charged with using chemical weapons after being filmed barrel bombing civilian targets with chlorine devices dropped from Hind attack helicopters? Without a superior enforcement capability, when it comes to what constitutes a state or state sponsored terrorist act, the issue becomes a matter of power balances between States, not one of law or ethics.

    Also, less you missed it the first time, I referenced the old saw about one person’s hero/liberator/freedom fighter being another person’s terrorist/villain. Take your pick when it comes to any number of historical figures, but please do not take this as an invitation to continue this (yet again hijacked) discussion.

  11. James Green on September 4th, 2020 at 21:06

    I’m a bit shaky on the finer points of anti-terrorism law so while I question it I don’t really have a solid argument to make. I want to say intent shouldn’t come into it but then I’m reminded of the difference between manslaughter and murder.

    As for the attacks on Japan I recently listened to a four episode podcast on Curtis LeMay, that mainly revolved around those fire-bombings. A thought it was a brilliant piece of media, as I’ve come to expect from Malcolm Gladwell’s Revisionist History.

  12. Görkem on September 5th, 2020 at 00:53

    @Pablo: That is interesting because it means that when the West criticises Iran for supporting terrorism, they are incorrect – Iran is practicing kinetic operations, and as a sovereign state Iran has the right to adjudicate that is permissable for it to sponsor bombings on civilian targets.

    You are right that no NZ soldier or Syrian bomber has yet been convicted, but that doesn’t mean they never will – if we were having this discussion in the late 90s we would be saying that no Serbian militia commander has ever been convicted, but actually it just took a little while. Who knows what view the international legal community will take of the US-led intervention in Afghanistan and/or the Russian intervention in Syria in 10, 20 or even 50 years. “Facts on the ground” don’t necessarily reveal legal or moral reality.

    I am sorry you regard this as a hijacking – I was engaging with your description of terrorism and trying to get a deeper understanding of it. Could you give an example of how I could have done so without hijacking?

  13. Pablo on September 5th, 2020 at 09:27

    At worst, what Iran does is state-sponsored terrorism (when it targets civilians via proxies). Attacks on US, Israeli or other military targets is not, IMO, terrorism. The same is true for the Taliban, as a non-state actor. This is different than the state terror experiments of Latin America and elsewhere where the target, subject and object were internal/domestic (with some warning to foreign actors). Whether the forces involved are regular or irregular in nature, state-sponsored or terrorism in war is directed at foreign adversaries.

    Serbian war criminals were brought to justice in the ICC because of two things: the Serbian State (and its patron Russia) could not prevent their arrest and extradition by ICC signatory states at that time. Now then can, but it is too late for the likes of Milosovitch. The US is not an ICC signatory and rejects its jurisdiction over US citizens, so terrorism committed during war by US forces will be hard to adjudicate outside of the US unless there is a change of heart on the part of future US governments. I doubt very much there will be any USCMJ prosecution of US forces above the individual level for any atrocity committed during or under the cover of foreign military operations.

    It is nice to think that it 10, 20 or 30 years someone will be held to account. But unless you resurrect the dead, that is unlikely. The Israelis were able to hunt down old Nazis in LATAM decades after WW2 but those States were weak in terms of defending against sophisticated covert ops whereas the US will be a tougher nut to crack (short of a targeted assassination, but that would void the whole “bringing to institutional justice” argument and open a can of worms with regard to precedent).

    I repeat: there are several types of terrorism that have the commonality of being employed to create pervasive fear and dread in order to bend the subject’s will to the demands/desires/objectives of the perpetrator. State, state-sponsored and terrorism committed during war are the most common form of terrorism but are shielded by sovereignty and the fact that the international community does not have a superseding enforcement capability (a Leviathan, if you will) that uniformly and equitably prosecutes terroristic crimes no matter who the perpetrators are.

    And, given the current state of affairs in this transitional global moment where international rule and norm violations are on the increase and the resort to hard power now eclipses the use of soft, smart or sharp power in interstate (mostly Great Power) relations, the situation regarding both the use of terroristic tactics and lack of effective justice mechanisms to address them will likely get worse before it gets (if ever) better.

  14. Geoff Fischer on September 7th, 2020 at 12:41

    I presume the real reason for designating Tarrant a terrorist entity when he is already sentenced to life without parole is to justify depriving him of anything except the necessities of life – food, water and basic clothing. In particular it provides grounds for denying access to books, journals, pen and paper, computers, communication devices and such like.
    We all know that Tarrant is a murderer and a terrorist. Any “message” the designation was designed to send is surely superfluous.

  15. Pablo on September 7th, 2020 at 14:48

    Hello Geoff,

    It has been a while in between drinks, as they say. In this instance I think that intent of the designation was to deter and prosecute others who may want to champion his cause in one way or another, and not simply to punish him beyond what is “normal.” I understand that he is allowed limited supervised TV viewing–apparently old sitcoms or some such–and no communication implements of any sort. He is allowed to communicate with his family, apparently, also under strictly supervised conditions.

    As I said in the post, the thinking behind the terrorist entity designation was about jihadist support networks but the irony is that is first used on a white supremacist. Also, as I pointed out to Al Jazeera in an interview, it is wrong to say that he is the first person to get life without parole in NZ. In the late 1880s two Maori activists were given such sentences. It is interesting that, because Tarrant is Australian, to date no Pakeha New Zealander has been given such a sentence. It is almost as if notions of “otherness” are at play here, as well as the fact that the crimes in question are seen as being against the State as well as or instead of individuals (for Tarrant, that being the reason for one count of terrorism, and for the Maori activists that being their challenge to the Sovereign). Thus, if we take a long view, certain types of “political” crimes get the toughest justice so long as they are committed by people other than those from the so-called “mainstream.”

  16. Görkem on September 8th, 2020 at 13:06

    Well I think there are two things. It is possible for an act to be widely understand to be illegal even if we acknowledge that the perpetrator will never be brought to justice. This is not just about international law – it is pretty fundamental to legal theory that if I kill someone but am able to evade arrest, what I did is still illegal. This principle extends to international law, and the fact that I evade law through sovereign state power isn’t really relevant.

    I will say, though, that taking legal action does not require bringing back the dead – a state can be held to account even if individuals are not. We need look no further than New Zealand for a very good example of this. While we do not usually describe the actions of the New Zealand government towards Maori in the 19th century as terrorism, largely because the term seems anachronistic, they very often meet the definition you have established here (organised political violence against civilians in order to achieve political means). Of course even if we do accept this as terrorism it is a very different quality of terrorism to the kind practiced by Iran in the 90s or the US and UK during the 40s, but still, it does show that legal action against state terror doesn’t rely on individuals still being alive.

    So I think they are separate, but related questions – what is viewed as terrorism, vs what is actually successfully brought to court (whether in an international or national forum) as terrorism. It is possible for something to be widely viewed as terrorism even if the impossibility of apprehending its perpetrators is acknowledged. If Russia had been able to prevent Milosovic (sorry to correct your spelling) from being taken to court, he would still widely be viewed as a terrorist.

    So while the likelihood of American political or miltiary leaders actually being tried for terrorism is very small even in 30 years, their being very widely viewed as terrorists is much more likely, although obviously not certain. Again, this would only be a repetition of the evolution of the views on the Hiroshima bombings between 1945 and the 1970s.

Leave a Reply

Name: (required)
Email: (required) (will not be published)
Website:
Comment: