50 Years Since Killing of the “Catholic Che Guevara”: ELN Guerrilla Father Camilo Torres

camilo-guerrilla

The 15th of February marked the 50th anniversary of the death of the Colombian priest, turned socialist guerrilla fighter, Camilo Torres.  Torres died in his first gun battle as a fighter of the National Liberation Army (ELN) on the 15th of February 1965.  A staunch proponent of liberation theology, Torres filled plazas across Colombia in the years before joining the guerrillas with rousing speeches for workers’ rights and the emancipation of Colombia’s poor.  His views mixed Christian belief with Marxism.  As the Associated Press reports, it is still a mystery where Torres was buried.  Many believe he was buried in an unmarked grave at a military cemetery.  The ELN have demanded a “proper christian burial” for Torres and have suggested this, among other conditions, may lead them to enter peace talks with the government.

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In recent weeks the ELN stepped up military operations and have been the subject of many international news articles.  Previously the ELN was largely overshadowed in international news coverage by the larger Revolutionary Armed Forces of Colombia-People’s Army (FARC-EP). However, now the FARC-EP appear on the verge of signing a peace agreement with the government so the ELN are featuring more heavily in English language news coverage of Colombia.

Why should the anniversary of Camilo Torres’ death be of interest to people in New Zealand?  The ELN has been designated as a terrorist group under the Terrorism Suppression Act since 2010.  If New Zealanders are to make a critical assessment of this law it is important to share information and analysis of the groups the New Zealand government has designated.  This makes following current affairs and learning the history of some long, complex and protracted conflicts absolutely necessary.

FARC, ETA, PKK and Al Shabaab designations renewed

Basque graffiti

Today the terrorist designations of the FARC, ETA, PKK and Al Shabaab were renewed.  As I blogged earlier this week, their designations expired last Thursday.  For a whole week no notice appeared indicating if the Prime Minister would renew the designations or not.  The renewal of the designations was only announced today on the NZ Police Website.  Strangely the designation renewal papers for PKK, FARC and Al Shabaab are dated for the 2nd of February 2016 and the ETA paper is dated 9th of February 2016.  The designations are yet to appear in the NZ Gazette.

The paper making the legal case for renewing ETA’s designation is particularly interesting because the organisation has not committed any acts in the last three years which meet the definition of a “terrorist act” under section 5 of the Terrorism Suppression Act.

Terror listings counterproductive to peace in Colombia

FARC peace hand shake

By Cameron Walker

After more than three years of peace talks, the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) appear to be on the verge of signing a peace agreement to end 50 years of conflict.  Recently the FARC requested the European Union remove the organisation from the EU list of designated terrorist entities.  Colombia’s President, Manuel Santos, publicly called for the US to remove the FARC from the US list of designated foreign terrorist organisations as soon as he signs a peace agreement with the movement.  US officials responded the FARC will only be delisted once it fully disarms and no longer poses a threat to “US interests”.  The FARC is also designated under anti-terrorist legislation in Canada and New Zealand.  In light of President Santos’ request this post will concentrate on the US designation of the FARC.

Terrorist designations make it harder for the FARC to reinvent itself as a civilian political force, connected with political life in both Colombia and internationally.  Under US law it is illegal to provide “material support” to designated Foreign Terrorist Organisations (FTOs).  The overwhelming definition given to the term “material support” by the US Supreme Court in the 2010 case of Holder v Humanitarian Law Project could possibly prevent non-governmental organisations or other humanitarians working with FARC as it makes the transition to laying down arms.  In that case the Humanitarian Law Project, an organisation which promotes non-violent conflict resolution, took a test case asking if it could provide information on non-violent conflict resolution, including petitioning the United Nations and resolving grievances using international law, to the Kurdistan Workers Party (PKK), an organisation listed by the US as a Foreign Terrorist Organisation. The majority of Supreme Court justices held providing such training did constitute material support to a designated terrorist organisation and if it took place could attract criminal sanctions.

This means, while the FARC is still designated, humanitarian organisations supporting current or ex-FARC members learn alternative methods of earning a living, non-violent conflict resolution or using legal remedies instead of the gun to resolve their grievances could potentially face criminal sanctions.  Isolating the FARC from those wishing to assist the movement transform to an unarmed movement is counter-productive to the peace process.  If the FARC is to successfully transition to an unarmed political movement it will need to be able to fully engage with international organisations and make international connections as political organisations of all stripes do.

Ensuring the FARC is able to openly engage with international organisations could also provide some insurance against a repeat of the horrific events which transpired during an earlier attempt at peace during the 1980s.  After President Belisario Betancur opened peace negotiations with the FARC in 1982, the movement supported the establishment of a broad based left wing party called the Patriotic Union (UP).  In the 1986 elections UP was popular with voters at both the national and local body level.  Voters elected four Congressmen, four senators, 275 municipal representatives and 24 provincial deputies from the Party.

In the following five years right wing paramilitaries and criminal gangs, funded by large land owners, unleashed a wave of terror against the UP, killing four Congressmen, two Presidential candidates and more than 2000 grassroots party members.  Many scholars describe this as a “political genocide”.  After the killings the FARC returned to war.

Isolating the FARC from receiving even the most inoffensive international support, including training on international human rights law and non-violent conflict resolution methods, increases the likelihood demobilised FARC fighters engaging in civilian politics, without the protection of guns, could be subject to killings by right wing paramilitary groups.

Overseas terrorist listings may even discourage engagement with the Colombian conflict by human rights and international solidarity groups with no direct links with the FARC.   In the months after Holder v Humanitarian Law Project was decided, US authorities stepped up harassment of US human rights activists concerned with US policy regarding the conflict in Colombia.  FBI agents launched an investigation into “material support” for FTOs by human rights and international solidarity groups in the US concerned with the conflicts in Colombia and Palestine.  The homes of activists involved in the National Committee to Free Ricardo Palmera, a senior FARC member imprisoned in the US, and Justice for Colombia were raided.  Over the past 50 years the Colombian authorities have often branded human rights workers, trade unionists, indigenous leaders and figures from the political left as sympathisers of the FARC and subject them to serious human rights abuses, including detention on trumped up charges or even extrajudicial killings.  Foreign terrorist listings have allowed harassment of supporters of progressive causes in Colombia to extend overseas.

The Colombian peace talks provide a clear opportunity to end a horrific five decade long conflict.  The talks in Havana were facilitated by the Cuban and Norwegian governments, both of whom had not designated the FARC as a terrorist organisation. Removing the FARC from designated terrorist lists is one way foreign countries can help contribute to the peace process in Colombia and making the FARC’s transition to a civilian political movement easier.

Did New Zealand forget to renew its terrorist designations?

By Cameron Walker

Under section 35 of the Terrorism Suppression Act 2002 (TSA) terrorist designations last three years before needing to be renewed.  On the 10th of February 2010 John Key used his power under section 22 of the TSA to designate a batch of four “terrorist entities”: Al-Shabaab, FARC, ETA and the PKK.  The designations were renewed again on the 11th of February 2013.  According to the notice made in the New Zealand Gazette when the organisations were renewed in 2013, the designations would expire on the 11th of February 2016, if they were not renewed.

Today is the 16th of February but no notice has been made either in the New Zealand Gazette or the anti-terrorism section of the NZ Police website indicating the designations have been renewed.  Has the New Zealand government willingly let these designations lapse or is it an oversight?

There are convincing reasons for allowing the designations of the FARC, ETA and PKK to lapse.  The FARC (Revolutionary Armed Forces of Colombia) appear to be on the verge of signing a peace agreement with the Colombian government.  Colombian President Manuel Santos has requested the US government delist the organisation from the US list of Foreign Terrorist Organisations once the agreement is signed.  Basque nationalist group ETA, (Euskadi Ta Askatasuna) declared a permanent ceasefire in October 2011 and have not launched any attacks since then.

The Kurdistan Workers Party (PKK) and its Syrian affiliate have been vital to defending Syrian and Iraqi Kurdish communities from ISIS.  Western terrorist listings of the PKK have caused the uncomfortable situation where those wishing to volunteer alongside Kurdish forces against ISIS have faced the threat of prosecution.  A young British Kurdish woman was recently sentenced to 21 months jail for attempting to join PKK forces to fight ISIS.

Since July last year the PKK has conducted many attacks on Turkish police and security forces after the collapse of peace talks with the Turkish government. Yet, many of the Turkish government’s “anti-terrorist” operations could easily be considered a form of state terrorism.  Whole towns have been put under permanent lock down for months; civilians have been shot, shelled and bombed.  Journalists, lawyers and activists have been locked up under trumped up charges of supporting terrorism for simply calling for an end to hostilities and a peaceful settlement of the conflict.  Western terrorist designations of the PKK seem to reinforce the belief of the Turkish authorities they can continue human rights abuses against Kurdish civilians with impunity. Despite this it seems unlikely New Zealand would delist the PKK unless other Western countries also did so.

It also seems highly unlikely the New Zealand government would allow the designation of Al-Shabaab to lapse intentionally.  Over the past three years Al Shabaab has continued horrific attacks on civilians in Somalia and elsewhere in Africa.  Al Shabaab gunmen have launched particularly horrific attacks, akin to the Paris attacks, in Kenya.  They killed 63 people at the Westgate Mall in Nairobi in 2013 and 148 at Garrissa University College in 2015.

Terrorist designation triggers serious criminal offences in the Terrorism Suppression Act.  Once a group is designated it becomes a criminal offence to deal with the property of the groupmake property or financial services available to the grouprecruit members to the group or participate in the group.

Would someone who undertook any of these actions in relation to FARC, ETA, the PKK or Al-Shabaab since the 11th of February have a defence that the organisation was not designated at the time?  Possibly in regards to dealing with property or making property or financial services available to the group.  Part of the mental element of the offences in section 9 and 10 of the TSA is the person knowingly dealt with property or provided financial services or property to a designated terrorist organisation.

However, for the offences of recruiting or participating members of a group it is less clear.  Under section 12 someone commits an offence if they recruit another person to an organisation knowing that organisation is either a designated terrorist entity or is an organisation which carries out or participates in the carrying out of one or more terrorist acts.  Similar wording is used for the section 13 offence of participating in a group.  The crime of terrorist financing simply refers to groups who carry out one or more terrorist acts and does not refer directly to designated terrorist entities.  As I have argued elsewhere, the definition of ‘terrorist act’ in section 5 is so wide it could cover many actions committed by these four groups.  However, in the case of ETA, the organisation has not committed a ‘terrorist act’ since the ceasefire of 2011.

A successful prosecution under some of the offences may not require the terrorist designation list be kept up to date.  However, the government should at least provide certainty as to which organisations are on or off the designated list.  This information needs to be publicly accessible too so people may tailor their behaviour accordingly.  The late British judge Lord Bingham noted in his fantastic book The Rule of Law: “law must be accessible and so far as possible intelligible, clear and predictable”.  By failing to provide a clear notice as to whether the FARC, PKK, Al-Shabaab and ETA are designated or not the New Zealand government is failing on every one of these counts.

“Which major party would better handle a domestic terror threat?”

Last week I answered a phone survey from a major polling company on current New Zealand political issues.  Among a host of questions on the NZ troop deployment to Iraq, the interviewer asked “which major Party would better handle a domestic terrorist threat in New Zealand?”.

If there ever was a proper domestic terror threat in New Zealand (not another Urewera raid style beat up) I am highly concerned a government led by either major party would support using the Terrorism Suppression Act in response, instead of New Zealand’s tried and tested criminal law.

In 2007 the then Solicitor General, Dr David Collins, described the Terrorism Suppression Act as “unnecessarily complex, incoherent and almost impossible to apply in domestic circumstances…”.

The provisions of the Act are very wide and open to interpretation.  For example even the boundaries of basic definitions such as a ‘terrorist act’ are very unclear.  A court would have to draw limits on what the definition could cover.  Any prosecution under the Act would be a test case where the outcome is unclear.

In contrast the Crimes Act, which includes murder, assault, kidnapping and nearly other offence imaginable, including attempted offences, has a long history and reliable case law behind it.  It would be much easier to prosecute an offence under the Crimes Act than the Terrorism Suppression Act.

Prosecuting would be terrorists under the Crimes Act also has an added psychological effect.  The Terrorism Suppression Act specifies it is for offences motivated by an ‘ideological, political or religious cause’.  In many countries those committing crime for a recognised religious or political cause are given a higher status in the public mind than ordinary common criminals.

A prosecution under the Crimes Act would signify New Zealand considers those wanting to commit acts of violence against the public for political or religious reasons are no different than ordinary criminals and should be viewed accordingly.

National have been enthusiastic users of the Act.  Since 2010 John Key has used his power to designate 19 groups not on the UN list of Al-Qaeda and Taliban entities as terrorist entities.  In 2013 Judith Collins as Justice Minister stopped a planned review of the Act by the Law Commission.

The Terrorism Suppression Act was introduced by the then Labour government in 2002.  In recent years some senior Labour MPs, including Annette King, have occasionally expressed misgivings about the Act through Twitter and other mediums.   However, Labour still voted for National’s Countering Terrorist Fighters legislation at the end of last year which relied heavily on the confusing definition of a terrorist act in section 5 of the Terrorism Suppression Act.

To the poll interviewer’s question I answered “neither” but was made to pick either National or Labour.  I reluctantly chose Labour because at least some MPs have expressed misgivings about the Terrorism Suppression Act and Labour did not designate any legitimate national liberation groups as terrorists like National have.  However, neither major party has a great record on this issue.

Introducing the New Zealand Terror Law Blog

This blog will critically examine New Zealand’s anti-terrorist law – in particular the Terrorism Suppression Act 2002.

Anti-terrorist law arouses significant public interest in New Zealand during the infrequent times it is discussed in the media or Parliament.  For example in December last year 600 submissions were received on the Countering Terrorist Fighters Legislation Bill, despite the fact the government only allowed a 48 hour window for submissions to be prepared and submitted.

Likewise the attempted use of the Terrorism Suppression Act by the Police in 2007 during Operation 8 received blanket media coverage and was the subject of great controversy and debate.

However, in between big media controversies smaller additions to New Zealand’s anti-terrorist law and policy often go unnoticed and unexamined.

Media commentators and Parliamentarians sometimes get details wrong when suddenly expected to provide commentary during the rare times media focus on anti-terrorist law – leading to more confusion.

Since 2010, the Prime Minister used his power under the Terrorism Suppression Act 19 times to designate groups as terrorist entities who are not on the UN list of Al-Qaeda and Taliban related entities.  These designations received little or no critical commentary.

The New Zealand Terror Law Blog hopes to provide a source of information and commentary on issues of New Zealand anti-terrorist law.

The use and misuse of anti-terrorism law in other jurisdictions similar to New Zealand, such as Australia, Canada, the UK, US and European Union will also be covered so New Zealand law is put in its proper global context.