Dialogue: Our double standard law misses the legal terrorists

The definition of terrorism incorporated in a proposed new law is too broad to be countenanced by any democratic society, writes PETER WILLS*.

The Terrorism (Bombing and Financing) Bill is a piece of United Nations window dressing that does not challenge New Zealand's problems with international terrorism.

The bill's apparently laudable goals are defeated by built-in provisions that allow Government agencies such as France's DGSE to continue planting bombs where they see fit, hoping they can get away with it.

The bill spreads an unnecessarily wide net over the actions of individuals and organisations, but it leaves any agency authorised by law to carry on practising terrorism, as the DGSE did in Auckland in 1985.

The Prime Minister is given the discretionary power to designate an organisation as a terrorist entity if she has good cause to suspect, or believes on reasonable grounds, that it has carried out one or more terrorist acts. The organisation can appeal against the designation in the High Court.

But the public cannot go to the High Court and ask to have the DGSE designated of a terrorist organisation on the basis of the evidence. It would be far too embarrassing to have a spade called a spade in a court of law. We have learned how to twist the language of our moral code to cover acts of arbitrary violence when we are promised advantage if we turn a blind eye.

Before Helen Clark finally designates any organisation of a terrorist entity, the bill requires her to consult the Minister of Foreign Affairs and Trade, not the Minister of Justice or the Minister of Police.

The main considerations in designating an organisation a terrorist entity, closing off its funding and freezing its assets, are to do with relationships with other Governments and international trade. Justice and public safety are secondary.

The scale of hypocrisy in the bill is astronomical. It gives an admirable definition of terrorism in terms of the attempt to intimidate a population or Government through the use of violence or threat, in any country anywhere, but then it excludes any act that is authorised by law.

Tell that to the parents of the five El-Astal children - Sultan, Muhammad, Anis, Amer and Akram - who were blown up on their way to school from the Khan Yunes refugee camp on November 22. The booby-trap bomb that killed them was set the night before under authorisation of the Israeli Defence Ministry.

We all clearly recognise the retaliatory machine-gunning of Israeli citizens a few days later as a horrific act of terrorism, but not the killing of the Palestinian children.

Our laws cannot set up double standards. That is the most basic principle of justice. The laws of France, Israel or New Zealand cannot confer on our Governments the right to practise terrorism, any more than Islamic law can confer such a right on the al Qaeda network.

The definition of terrorism in the bill is too broad for any democratic society. Terrorism incorporates serious interference or disruption to infrastructure facilities, as well as serious damage or disruption to a national economy. What we accept as normal business seems to have these outcomes sometimes.

But people are not terrorists just because they do something that has one of these results. Trying to compel an international organisation to advance its favourite cause also fits the bill.

I would like to see the Business Roundtable made accountable for the way in which it applies pressure on our Government to advance its aims, but we should not try to achieve accountability by having Roundtable members lumped together with al Qaeda.

Of course it was not the new right that the authors of the bill had in mind when they wrote these definitions of terrorist outcomes. It was the possibility of bundling the old left together with terrorists that looked attractive.

So peaceful protest and absence from the workplace are given exemption, even if they significantly harm the infrastructure or economy of any country. Beyond that there is a fine line between protest and industrial dispute and what qualifies as terrorism. Soon we will have a law that makes people like me barely distinguishable from Osama bin Laden.

After that we come to the troubling exemption of armed conflict. The bill says we should not call something terrorism if the rules of international law applicable to the relevant armed conflict allow the act to be performed, irrespective of how many innocent bystanders might be killed.

The bill is designed to maintain into the foreseeable future the enduring freedom of powerful nations to use armed conflict as an instrument of foreign policy, even when the use of terror is involved.

Causing death in the pursuit of ideological, political or religious causes is central to the definition of terror. The pursuit of such causes is the root of most armed conflict, but once conflict is in progress, terrorism is defined as intentionally attacking people not taking part in the hostilities.

The beauty of this for military commanders is that they can hold a population in terror, knowingly and unnecessarily kill civilians at random, then visit New Zealand as war heroes. The only words they need to know are the now-familiar euphemism "collateral damage".

The bill forbids the collection of money intending that, or being reckless as to whether, they be used for terrorist purposes. The same test should apply to the commission of acts of terrorism, even during armed conflict.

We should define as a terrorist act any harm to innocent bystanders that arises not only from intent but also from recklessness, carelessness or simple disregard for the life of civilians. Calculated collateral damage should be outlawed.

The ideal terrorist act is one in which all of the damage is collateral. No particular or personal damage is specifically intended, just general destruction. From that extreme, there is a broad spectrum of acts with decreasing degrees of collateral damage all the way down to clean warfare between opposing forces on an open battlefield, with no civilians directly affected.

At various stages in between we allow our friends to kill unsuspecting, uninvolved civilians, but if our enemies do the same things, we say they are terrorists.

We usually make the division between friends and enemies down the lines of some crude ethnic separation, as in the case of our differentiation between Afghan tribes. The tribes of the Northern Alliance are good and those of the Taleban are evil.

President George W. Bush has made an absolute demand that other nations support America in its campaign against the Taleban or face his nation's wrath.

He stands as the final arbiter of what constitutes terrorism, and the laws of other nations are supposed to conform, regardless of any facts concerning the modus operandi of his own legally authorised CIA.

We should not have a bar of it. We should define terrorism in terms of its outcomes and make all terrorist acts illegal irrespective of the perpetrator. There should be no exemptions when innocent bystanders are needlessly killed in the pursuit of some grand cause.

* Peter Wills is an associate professor in Auckland University's physics department.