Commentary: War on Terror Is a Strategy to Criminalize Dissent
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. Lawyer
Raf Jespers of the Progressive Lawyers Network, Belgium, made these
arguments during a forum of international lawyers in Davao City last
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
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
9/11 is the beginning of a new era of war on civil
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
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
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
Power lines from the anti-terror policies of U.S. and EU: A
permanent state of terror, a perpetual state of “war on
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
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
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
· 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
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
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
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
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
4. Complete control of the population and extension of the
secret investigation methods of the police force – and security
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
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
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
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.
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
- 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