COUNTRY STUDIES: THE HUMAN RIGHTS IMPACT OF COUNTER-TERRORISM MEASURES IN TEN COUNTRIES
This chapter looks at human rights concerns raised by counter-terrorism measures in China, Egypt, Georgia, India, Indonesia, Russia, Spain, United Kingdom, United States, and Uzbekistan. Particularly troubling, and common, have been the pretextual use of counter-terrorism laws as new weapons against old political foes, systematic violation of terrorist suspects’ due process rights, and tightening of controls on refugees and migrants. The cases detailed below include far-reaching restriction of civil liberties, crackdowns against internal political movements, misuse of immigration laws to circumvent criminal law protections otherwise available to suspects, pervasive secrecy, allegations of torture, and at times indiscriminate detention of non-nationals.
China
Since the September 11 attacks, China has sought to blur the distinctions between terrorism and calls for independence by the ethnic Uighur community in the Xinjiang-Uighur Autonomous Region (XUAR) in order to enlist international cooperation for its own campaign, begun years earlier, to eliminate “separatism.” Chinese authorities have used the global counter-terrorism effort as a justification for deepening crackdown in Xinjiang.
Before September 11, official reports made no distinction between Uighur demands expressed peacefully and acts of separatist violence. All were labeled separatist and treated simply as criminal cases. After September 11, the government re-categorized separatist acts involving the use of force as “international terrorism,” reserving the term “separatism” for peaceful activities such as expressions of
cultural identity, religion, literature, association, or rites of passage. But at every opportunity the two terms are linked.
Egypt
Egypt has a long history of using anti-terrorism decrees and emergency rule to suppress peaceful dissidents, as well as to punish opponents advocating or using violence. But repressive measures have intensified since the September 11 attacks.
Since September 11, 2001, Egypt has arrested hundreds of suspected government opponents, many for alleged membership in the Muslim Brotherhood, a banned but non-violent group, and possession of “suspicious” literature. Many of those arrested, including professors, medical doctors, and other professionals, have been referred to military courts or to emergency and regular state security courts whose procedures do not meet international fair trial standards.
In January and February 2003, state security forces used emergency law provisions to detain without charge or trial persons involved in peaceful demonstrations opposing military intervention in Iraq and in support for the Palestinian uprising against Israeli military occupation.
The U.N. Human Rights Committee, the treaty body responsible for overseeing implementation by States Parties of the International Covenant on Civil and Political Rights, examined Egypt’s most recent periodic report on November 28, 2002. The Committee expressed alarm at the jurisdiction of military courts and state security courts in cases of civilians accused of terrorism, and “the very broad and general definition of terrorism given in Act No. 97 of 1992.”
Georgia
U.S.-supported anti-terror measures in Georgia have focused on the Pankisi Gorge and on Georgia’s Chechen population. In implementing these measures the government has committed serious human rights violations, which it refuses to address. President Eduard Shevardnadze indicated the government’s attitude toward observing human rights in its counter-terrorism campaign on October 5, 2002, one day after Georgia had extradited five Chechens to Russia without due process, when he said:
“International human rights commitments might become pale in comparison with the importance of the anti-terrorist campaign. 19”
On March 22, 2002 the National Security Ministry detained two Georgian ethnic Chechen activists who worked with refugees in the Gorge, Islam Saidaev and Zurab Khangoshvili, on suspicion of association with al-Qaeda, apparently based only on the fact that they were the only Georgian citizens to make the pilgrimage to Mecca in 2002. That information was provided in a U.S. Embassy letter to the Ministry of National Security. 21 The ministry secured their pre-trial detention for three months by falsifying the date of their arrest to avoid their compulsory release under criminal procedural deadlines. They were released in June, but the investigation continued.
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19 Those extradited had been arrested in August. The Procuracy General extradited them without recourse to a court appeal, which is provided for in Georgia’s criminal procedure code.
20 Russia has repeatedly demanded the forcible return of Chechen refugees and threatened to conduct its own military operations in the Pankisi Gorge.
21 Human Rights Watch interviews with attorneys for both the defendants, Tbilisi, April 2002.
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India
India’s response to perceived threats of terrorism intensified in the wake of an attack by militants on the national parliament in December 2001. On March 26, 2002, the long debated Prevention of Terrorism Act (POTA) was enacted. Like its predecessor, the much misused and now lapsed Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985 (amended 1987), POTA has already been used by the Indian government to target minorities and political opponents.
POTA creates an overly broad definition of terrorism, while expanding the state’s investigative and procedural powers. Suspects can be detained for up to three months without charge, and up to three months more with the permission of a special judge. Its close resemblance to TADA foreshadowed a return to widespread and systematic curtailment of civil liberties. Under TADA, tens of thousands of politically motivated detentions, acts of torture, and other human rights violations were committed against
Muslims, Sikhs, Dalits (so-called untouchables), trade union activists, and political opponents in the late 1980s and early 1990s. In the face of mounting opposition to the act, India’s government acknowledged these abuses and consequently let TADA lapse in 1995.
Indian and international human rights groups, journalists, opposition parties, and minority rights groups have unequivocally condemned POTA. Numerous political parties have alleged the misuse of POTA against political opponents in states such as Uttar Pradesh and Jammu and Kashmir. Since it was first introduced, the government has added some safeguards to protect due process rights but POTA’s critics stress that the safeguards do not go far enough and that existing laws are sufficient to deal with the
threat of terrorism. India’s own National Human Rights Commission has stated that “existing laws are sufficient to deal with any eventuality, including terrorism, and there is no need for a draconian POTA.” India has a plethora of security laws, some pre-dating independence. Many lack adequate procedural safeguards and have been similarly abused.
Since its passage, POTA has been used against political opponents, religious minorities, Dalits, tribals and even children. In February 2003 alone, over three hundred people were arrested under the act.
On July 11, 2002, in the state of Tamil Nadu, Vaiko, a leader of the political party Marumalarchi Dravida Munetra Kazhakam (MDMK), was arrested and charged under POTA for making remarks in support of the banned terrorist group, the Liberation Tigers of Tamil Eelam (LTTE). Only two weeks after Vaiko's arrest, P. Nedumaran, a leader of the Tamil Nationalist Movement, was also arrested under POTA for making pro-LTTE remarks at a conference on April 13.
In Kashmir, the Jammu and Kashmir Liberation Front (JKLF) chairman, Yasin Malik, was held under POTA the very day of its enactment, March 26, on charges of receiving smuggled money from a Pakistan-based separatist group. Malik was released on bail for medical reasons, but was immediately rearrested under a Jammu and Kashmir preventive detention law, the Public Safety Act (PSA), for antinational activity. Acknowledging the extent of its misuse, the newly-elected government of the state of Jammu and Kashmir announced in October 2002 that POTA would no longer be used in the state.
An independent member of the legislative assembly in Uttar Pradesh and political opponent of the state’s chief minister was charged under POTA in January 2003, along with his seventy-year-old father. Both were arrested in November 2002 under the National Security Act.
On February 19, 2003 in Jharkhand state almost 200 people were arrested under POTA, among them a twelve-year-old boy and an eighty-one-year-old man. According to the government, the accused are being held for supporting Naxalites. According to press reports most of those arrested were farmers, students, or daily wage earners. When asked how a Naxalite was identified, a senior police official told reporters, “Anyone caught with a copy of the Communist Manifesto or Mao’s Red Book becomes a suspicious character. We then watch him and often find clinching evidence.” Following widespread criticism against the charges, Deputy Prime Minister Advani directed the state to review the cases. As a result, officials decided to drop the POTA charges against eighty-three of the detainees. Rights groups have charged that POTA is being used indiscriminately against ordinary citizens in the state, including young children. In January 2003, for example, a thirteen-year-old boy was arrested because his father was suspected of involvement with the insurgent Maoist Communist Centre group. The charges were later withdrawn. At this writing, a total of ten children, mostly students, had been arrested under POTA in Jharkhand state.
Indonesia
Since the September 11 attacks, Indonesia has been seen as a frontline in the international campaign against terrorism due to ongoing political and sectarian violence and alleged links between local Islamist movements and international terrorist networks. After the October 12, 2002 Bali bomb attack, President Megawati, under intense U.S. pressure, issued two executive decrees to address terrorism. The Indonesian parliament is now considering similar anti-terror legislation. The decrees and draft legislation threaten to seriously curb fundamental rights, invoking broad definitions of terrorism that could be used to target political opponents. Critics argue that existing Indonesian criminal laws are sufficient to address the country’s security needs.
The U.S. has pressured the Indonesian government to arrest key terrorist suspects and label the radical Islamic group Jemaah Islamiyah a terrorist organization under Indonesian law. Jemaah Islamiyah has been accused of sponsoring the Bali attack and of planning to carve out an Islamic state in Southeast Asia through violent means. On October 23, 2002, the U.S. State Department designated Jemaah Islamiyah a foreign terrorist organization. Shortly afterwards the U.N. Security Council Sanctions
Committee included Jemaah Islamiyah on its consolidated list of individuals and entities, the assets of which member states are required to freeze in accordance with Security Council resolutions.
The Bush administration has renewed links with Indonesia's military (TNI) as part of its counterterrorist strategy for Indonesia, arguing that the only way to support democracy and human rights and fight terrorism in Indonesia is to work with the military. The U.S. IMET (International Military Education and Training) program to Indonesia had been cut after the TNI-orchestrated 1999 violence in East Timor. Resumption was conditioned on demonstrable reform of the military and a willingness to tackle impunity, but in its efforts to secure a bulwark against terrorism in Southeast Asia the Bush administration has agreed to resume the program without the necessary reforms. On a visit to Jakarta in 2002, U.S. Secretary of State Colin Powell announced a new $50 million program to assist the security forces in the campaign against terrorism. The U.S. Congress approved legislation giving Indonesia’s police force $16 million, including $12 million to set up a special anti-terrorism unit. Restrictions on lethal arms and arms supplies, both commercially and U.S. government-funded, remained in place.
Russia – Chechnya
Since it launched a military operation in Chechnya in 1999, Russia’s leaders have described the armed conflict there as a counter-terrorism operation and have attempted to fend off international scrutiny of Russian forces’ abusive conduct by invoking the imperative of fighting terrorism. This pattern has become more pronounced since the September 11 attacks, as Russia sought to convince the international community that its operation in Chechnya was its contribution to the international campaign against terrorism. The current armed conflict in Chechnya is Russia’s second in ten years.
Following bombings in Moscow attributed to Chechen separatists, in September 1999 Russian forces began aerial bombing and ground operations in Chechnya. Several thousand civilians died before Russian forces established control over most of the republic’s territory in March 2000. Russian officials constantly used the language of counter-terrorism to describe the conflict; in some forums they argued that this meant that humanitarian law was irrelevant.27 The terrorist label was attached not only to Shamil Basaev, a Chechen field commander responsible for a mass hostage-taking of civilians during the first Chechen war, and Khattab, a field commander with alleged links to al-Qaeda, but to all Chechen forces.
After September 11, Russia went to great lengths to link the war in Chechnya to the global campaign against terrorism. On September 12, 2001, Russian President Vladimir Putin declared that America and Russia had a “common foe” because “Bin Laden's people are connected with the events currently taking place in our Chechnya,” 28 and on September 24 said that the events in Chechnya “could not be considered outside the context of counter-terrorism,” glossing over the political aspects of the conflict.29
World leaders, until then critical of Russia’s conduct in Chechnya, did little to challenge these claims. Two weeks after the attacks in the United States, German Chancellor Gerhard Schroder said, during a meeting with President Putin, “As regards Chechnya, there will be and must be a more differentiated evaluation in world opinion.” On the same occasion, Prime Minister Silvio Berlusconi of Italy said, “We'll probably have to judge things differently than we have done until now regarding Chechnya. But it does not mean forgetting about various rights such as human, civil and political rights.”
While Russia has described its actions in Chechnya as a tightly focused counter-terrorism operation, it has produced vast civilian casualties. The first phase of the conflict involved the bombing and shelling of dozens of towns and villages to dislodge Chechen fighters. Research by Human Rights
Watch and other organizations showed the shelling and aerial bombardment by Russian forces to be highly indiscriminate and disproportionate, causing about 3,000 civilian casualties. Between December 1999 and February 2000, Russian forces committed massacres after taking control of three villages, killing at least 130 people. During this period they also rounded up thousands of people, mostly males whom they called “potential terrorists,” took them to detention centers, and tortured them to compel confessions or testimony.
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27 Russian diplomats objected to references to international humanitarian law for the Chechnya conflict during the
56th and 57th sessions of the U.N. Commission on Human Rights. Resolutions adopted at both sessions of the UNCHR recognized the applicability of international humanitarian law to the conflict. See, Commission on Human
Rights, “Situation in the Republic of Chechnya of the Russian Federation, E/CN.4/2000/L32,12 April 2000, and
Commission on Human Rights, “Situation in the Republic of Chechnya of the Russian Federation,”
28 Susan B. Glasser and Peter Baker, “Putin, Bush Weigh New Unity Against A 'Common Foe,’” Washington Post,
September 13, 2001, p. A25.
29 “Vremya” (Russian Public Television news program), September 24, 2001.
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Spain
In the aftermath of September 11, Spain applied its existing strict counter-terrorism regime to the investigation, apprehension, and detention of suspected al-Qaeda operatives. The climate created by the international campaign against terrorism provided the Spanish authorities with a further pretext to crackdown on Basque separatists and supporters of the pro-independence movement. Spanish authorities were also quick to issue public statements equating stricter controls on immigration with the war against terrorism, contributing to a climate of fear and suspicion toward migrants, asylum seekers, and refugees.
In November 2002, the United Nations Committee against Torture (CAT) expressed serious concern about incommunicado detention under Spain’s criminal laws. A suspect can be held incommunicado for up to five days, without access to an attorney, family notification, services such as access to health care, or contact with the outside world. The CAT concluded that incommunicado detention under these circumstances can facilitate acts of torture and ill-treatment. In Spain, most suspected terrorist detainees are held incommunicado for at least the first forty-eight hours in custody.
United Kingdom
Arbitrary Detention
In December 2001, the Anti-Terrorism, Crime and Security Act (ATCSA) went into force. The ATCSA provides for the indefinite detention without charge or trial of non-U.K. nationals who are suspected of terrorism-related activity and cannot be returned to their country of origin or to another country. The Secretary of State for Home Affairs must certify a detainee as a suspected terrorist or a national security risk. The evidence used to make such a determination is secret and the suspect is prohibited from gaining access to it. A detainee can lodge an appeal with the Special Immigration Appeals Commission (SIAC), but only on a point of law. Although a detainee can be represented by a court-appointed “special advocate,” he or she has no right to legal counsel. A detainee’s advocate cannot reveal to the detainee or discuss the evidence upon which the original certification was issued, undermining a detainee’s ability to mount an adequate defense. Certification can be withdrawn by the Home Secretary or by the SIAC, although the U.K. courts have ruled that the executive should be given wide discretion in certifications based on national security interests. An October 2002 Court of Appeal ruling held that the indefinite detention of aliens on grounds of national security is a power expressly reserved to the state in time of war or similar public emergency.
In February 2002, the European Committee for the Prevention of Torture (ECPT) made an ad hoc visit to the U.K. to monitor detentions under the ATCSA. The committee expressed concern about lack of access to counsel; the use of secret evidence; lack of exercise and out-of-cell time; delayed access to healthcare, in particular to psychological support and psychiatric treatment; translation and interpretation problems; and lack of adequate contact with the outside world.
The U.K. police have arrested over 300 people under anti-terrorism legislation since September 11. Approximately forty persons have been charged, most with immigration-related offenses. Three persons have been convicted for membership of a banned organization, including a Sikh youth group, but none to date for membership or association in a banned Islamic group or organization. Defense lawyers have alleged that the police have targeted particular racial, ethnic, or religious communities in random sweeps, with little hard evidence of terrorist activity.
Seven United Kingdom nationals, detained in Guantánamo Bay under the supervision of the U.S. military, have also been subject to indefinite detention without charge or trial and denied access to legal counsel (see section on the United States). While U.K. authorities have interrogated these detainees, they have failed to press the U.S. adequately to ensure that they fully enjoy their rights. A November 2002 ruling by the U.K. Court of Appeals described one U.K. national’s detention at Guantánamo as “objectionable.”
United States
Many of the measures adopted by the U.S. government after the September 11 attacks violated fundamental provisions of international human rights and humanitarian law. These included the arbitrary and secret detention of non-citizens, secret deportation hearings for persons suspected of connections to terrorism, the authorization of military commissions to try non-citizen terrorists, a failure to abide by the Geneva Conventions in the treatment of detainees held in US military custody in Cuba and elsewhere, and the military detention without charge or access to counsel of U.S. citizens designated as “enemy combatants.”
Non-Citizen “Special Interest” Detainees Held on Immigration Charges
Some twelve hundred non-citizens, mostly from the Middle East or South Asia, some of whom were legal permanent residents, were detained in connection with the investigation of the September 11 attacks, although the government has never disclosed the exact number. At least 752 were held on immigration charges; the others were held on criminal charges or as material witnesses. Four have been indicted for terrorism-related crimes. Although the detainees were of interest to the Department of Justice because of possible links to terrorism, they were held under immigration laws, which enabled the Department of Justice to circumvent the greater safeguards in the criminal law—including the requirement of probable cause for arrest, the right to a court- appointed attorney and the right to be brought before a judge within forty-eight hours of arrest.
The U.S. Department of Justice has maintained in secrecy the names of “special interest” detainees held on immigration charges, their place of incarceration, and the names of their attorneys, and has closed their deportation proceedings to the public, arguing that this was necessary to protect national security interests. A federal appeals court accepted this argument on October 8, 2002. Human Rights Watch has documented the mistreatment of non-citizens detained in the September 11 investigation, including: custodial interrogations without access to counsel, prolonged detention without charge, executive decisions overriding judicial orders to release detainees on bond during immigration proceedings, and unnecessarily restrictive conditions--including solitary confinement--under which some “special interest” detainees were held.
Guantánamo Bay Detainees
Since September 11, the United States has transferred about 650 men captured in connection with the Afghan war or who are suspected of links to al-Qaeda to the U.S. military base at Guantánamo Bay, Cuba. U.S. officials apparently chose the site both for security purposes as well as because they believed that U.S. courts would refuse to exercise jurisdiction over it – a belief that has been borne out in court cases. The detainees were originally held in makeshift open-air facilities with chain-link walls until moved to a newly constructed facility on April 28, 2002. According to press reports, the detainees spend twenty-four hours a day in small single -person cells, except for two fifteen minute periods of solitary exercise a week, as well as interrogation sessions. About eighty of the prisoners were held in special high security cells with steel walls that prevented them from communicating with other prisoners.
Uzbekistan
Since September 11, the government of Uzbekistan has used the global campaign against terrorism to justify its own abusive five-year campaign to eliminate independent Islam. Western governments, particularly the United States, have been less critical of the Uzbek government’s human rights record in view of the country’s strategic importance to international counter-terrorist efforts.
Since 1998, the Uzbek government has imprisoned thousands of independent Muslims whom it claims are religious “extremists.” These are individuals who practice their religion beyond the tight restrictions imposed by the government, by participating in private prayer groups, following imams out of favor with the state, joining religious organizations banned by the state, and distributing literature not sanctioned by the state.
Victims of the arrest campaign face charges of “anti-state activity” or “attempted subversion of the constitutional order,” with sentences of up to twenty years in prison.
Another victim of the arrest campaign was human rights defender, Yuldash Rasulov. Police arrested Rasulov, of the Human Rights Society of Uzbekistan, on May 24, 2002, charging him with “religious extremism.” On May 27, police claimed that Rasulov had recruited young men for “terrorist training camps abroad,”31
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31 Remarks made by Ilia Piagi, of the Department for the Fight Against Organized Crime, Corruption and Terrorism
of the Ministry of Internal Affairs of Uzbekistan, to Human Rights Watch and others gathered at the Ministry of
Internal Affairs to protest Rasulov’s arrest, Tashkent, May 27, 2002.