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International Terrorism and Human Rights

  • Sundaresh MENON (a1)

Abstract

Following the attacks of September 11, 2001, a line was crossed in the history of terrorism and political violence—many things we had until then taken for granted were lost. This paper analyzes the relationship between international terrorism and human rights and examines how these two concepts—which some suggest are antithetical—might appropriately be spoken of in the same breath even in the aftermath of those terrible attacks. The overarching thesis is that counter-terror efforts must be approached in a way that endeavours to achieve a positive relation to, and co-existence with, the system of human rights at both international and national levels. In this connection, Singapore's approach to counter-terrorism will be considered, providing food for thought on how far it achieves a balance between security and liberty.

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Chief Justice, Supreme Court of Singapore. This paper is adapted from the Harish Chandra Memorial International Lecture that I delivered in New Delhi on 18 April 2013. The views and ideas contained here are personal. They are informed by my career in the law, which included a stint as the Attorney-General. I am deeply grateful to my colleague, Mr Justin Yeo, Assistant Registrar of the Supreme Court, for his considerable assistance in the research and preparation of this paper and for his very valuable contributions to the ideas contained here.

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1. See “George W Bush: Declaration of War on Terrorism”, online: 〈http://www.britannica.com/presidents/article-9398253〉. See also “Transcript of President Bush's Address to a Joint Session of Congress on Thursday night, September 20, 2001” CNN (21 September 2001), online: CNN 〈http://edition.cnn.com/2001/US/09/20/gen.bush.transcript/〉.

2. Walter W. MOORE Jr., Wise Sayings: For Your Thoughtful Consideration (Bloomington, IN: AuthorHouse, 2011) at 23. Also cited in

CARLSON, John, “Winning Souls and Minds: The Military's Religion Problem and the Global War on Terror” (2008) 7 Journal of Military Ethics 85.

3. White Paper, “The Jemaah Islamiyah Arrests and the Threat of Terrorism”, online: 〈http://www.mha.gov.sg/get_blob.aspx?file_id=252_complete.pdf〉 [White Paper on JI Arrests].

4. CARAFANO, James Jay et al., “Fifty Terror Plots Foiled Since 9/11: The Homegrown Threat and the Long War on Terrorism” The Heritage Foundation (25 April 2012), online: 〈http://www.heritage.org/research/reports/2012/04/fifty-terror-plots-foiled-since-9-11-the-homegrown-threat-and-the-long-war-on-terrorism〉.

5. William BANKS, “The United States a Decade After 9/11” in Benjamin J. GOOLD and Liora LAZARUS, eds., Security and Human Rights (Oxford: Hart Publishing, 2007), 449 at 449.

6. MOKHTAR, Maryam, “Religious Rehab Group's Work Praised” The Straits Times (26 June 2013).

7. HOFFMAN, Bruce, Inside Terrorism (New York: Columbia University Press, 2006) at 1.

8. Ibid.

9. GANOR, Boaz, “Terrorism: No Prohibition Without Definition” The Institute for Counter-Terrorism (7 October 2001), online: ICT 〈http://212.150.54.123/articles/articledet.cfm?articleid=393〉, cited in

SCHMID, Alex, “Terrorism—The Definitional Problem” (2004) 36 Case Journal of International Law 375 at 375.

10. “Beirut wants ‘Terrorism’ Defined”, Aljazeera (13 January 2004), cited in Schmid, supra note 9 at 375.

11. Schmid, supra note 9 at 375.

12. Katja L.H. SAMUEL and Nigel D. WHITE, “Introduction” in Katja L.H. SAMUEL and Nigel D WHITE, eds., Counter-Terrorism and International Law (Farnham: Ashgate Publishing Limited, 2012), xi at xii.

13. SAUL, Ben, Defining Terrorism in International Law (Oxford: Oxford University Press, 2006) at 1.

14. It has been observed that the draft Comprehensive Convention on International Terrorism has been laboured over since 1996, stymied by the inability to agree on a definition of terrorism: see MARKS, Stephen, “Branding the ‘War on Terrorism’: Is there a ‘New Paradigm’ of International Law?” (2006) 14 Michigan State Journal of International Law 71 at 77, citing the Report of the Ad Hoc Committee established by General Assembly Resolution 51/210 of 17 December 1996. Ninth session (28 March−1 April 2005), UN doc. A/60/37, Annex I, paras. 16−23.

15. Kofi ANNAN, In Larger Freedom: Towards Development, Freedom and Human Rights for All at para. 91, cited in

Marks, supra note 14 at 79.

16. Marks, supra note 14 at 79.

17. General Assembly Resolution 60/1 (24 October 2005), 2005 World Summit Outcome, at para. 81. See also ROBERTS, Adam, “Countering Terrorism: A Historical Perspective” in Samuel and White, supra note 12, 3 at 8. It should also be noted that in Security Council Resolution 1566 (2004), a partial definition of terrorism was pushed forward, i.e. “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act”.

18. United Nations, “United Nations Action to Counter Terrorism”, online, UN: 〈http://www.un.org/en/terrorism/strategy-counter-terrorism.shtml〉.

19. See ibid., the resolution states: “Reaffirming further Member States’ determination to make every effort to reach an agreement on and conclude a comprehensive convention on international terrorism, including by resolving the outstanding issues related to the legal definition and scope of the acts covered by the convention, so that it can serve as an effective instrument to counter terrorism” (emphasis in original).

20. Measures to Eliminate International Terrorism, UN Doc. A/RES/67/99 (2012), online: 〈http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/67/99〉.

21. This was an observation made by the Subcommittee on Terrorism of the United States House of Representatives Permanent Select Committee on Intelligence. See Schmid, supra note 9 at 377, citing several news articles.

22. See, for instance, Saul, supra note 13. There are also many authors who have dedicated chapters to the issue of defining terrorism alone: see, for instance,

Hoffman, supra note 7, Chapter 1. Articles written regarding the problems of defining terrorism include:

Schmid, supra note 9, and

Roberts, supra note 17.

23. WHITBECK, John V., “‘Terrorism’: The Word Itself is Dangerous” International Herald Tribune (18 February 2004), cited in

Schmid, supra note 9 at 397.

24. Schmid, supra note 9 at 402.

25. Ibid., at 395.

26. Ibid., at 397.

27. FREEMAN, Michael, “Order, Rights and Threats: Terrorism and Global Justice” in Richard Ashby WILSON, ed., Human Rights in the “War on Terror” (Cambridge: Cambridge University Press, 2005), 37 at 45.

28. Ibid., at 45.

29. As argued by Philip Schlesinger, a British Sociologist, “… no commonly agreed definition can in principle be reached, because the very process of definition is in itself part of a wider contestation over ideologies or political objectives”, cited in Schmid, supra note 9 at 396.

30. MOECKLI, Daniel, Human Rights and Non-discrimination in the “War on Terror” (Oxford: Oxford University Press, 2008) at 24. See also

Roberts, supra note 17 at 12, where the author notes that “the favoured form of argument is phrased in terms of morality—and a relatively simple morality at that, in which the adversary's actions are seen as such a serious threat as to create an overwhelming necessity for the use of counter-violence”.

31. Hoffman, supra note 7 at 23.

32. Schmid, supra note 9 at 395.

33. Indeed, it has been noted that “the tendency to approach terrorism without the benefit of history has, itself, a long history”, and that the international response to terrorism “needs to take account of the long history of terror and counter terror”; see Roberts, supra note 17 at 12 and 41.

34. Hoffman, supra note 7 at 3.

35. Ibid.

36. Ibid.

37. See “The Modern History Sourcebook: Maximilien Robespierre: On the Principles of Political Morality, February 1794”, online: 〈http://www.fordham.edu/halsall/mod/1794robespierre.asp〉; and see Hoffman, supra note 7 at 3.

38. Hoffman, supra note 7 at 4.

39. Ibid.

40. Ibid., at 5.

41. Ibid.

42. Ibid., at 12.

43. Ibid., at 14.

44. Ibid., at 16.

45. Ibid.

46. Ibid.

47. This was perhaps most famously explained by Palestine Liberation Organization chairman Yasser Arafat, when he addressed the United Nations General Assembly in November 1974: “The difference between the revolutionary and the terrorist lies in the reason for which each fights. For whoever stands by a just cause and fights for the freedom and liberation of his land from the invaders, the settlers and the colonialists, cannot possibly be called terrorist”; cited in Hoffman, supra note 7 at 16.

48. Hoffman, supra note 7 at 63.

49. Ibid., at 66.

50. Schmid, supra note 9 at 399.

51. Hoffman, supra note 7 at 18.

52. Ibid., at 19.

53. Roberts, supra note 17 at 13.

54. Moeckli, supra note 30 at 12.

55. Ibid.

56. There are other possible government responses to terrorism, for instance, a “political response” which views terrorism “as a form of armed rebellion to be resolved through negotiation and the political process”. However, the “political” response is not covered in detail as it has rarely been used. See FENWICK, Helen and PHILLIPSON, Gavin, “UK Counter-Terror Law Post-9/11: Initial Acceptance of Extraordinary Measures and the Partial Return to Human Rights Norms” in Victor RAMRAJ et al., eds., Global Anti-Terrorism Law and Policy, 2nd ed. (New York: Cambridge University Press), 481 at 481.

57. Marks, supra note 14 at 80.

58. SCHARF, Michael and MILLER, Amy, “Foreword: Terrorism on Trial” (2004) 36 Case Journal of International Law 287 at 287.

59. Ibid., at 288.

60. Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra Criminal Appeal No 1899−1900 of 2011, Supreme Court of India, online: 〈http://supremecourtofindia.nic.in/outtoday/39511.pdf〉 at 7 [Amir Kasab v. State of Maharashtra].

61. Ibid., at 1.

62. Ibid.

63. “Profile: Mohammad Ajmal Amir Qasab” BBC News (21 November 2012), online: BBC 〈http://www.bbc.co.uk/news/world-south-asia-12369352〉.

64. See the EU Council Framework Decision of 13 June 2002 on combating terrorism, online: 〈http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32002F0475&model=guichett〉. See also Marks, supra note 14 at 86.

65. Marks, supra note 14 at 86, where the author notes that the EU response to 9/11 “remains resolutely within the ‘traditional paradigm’”.

66. Fenwick and Phillipson, supra note 56 at 481.

67. After widespread domestic and international criticism, and after the House of Lords in A and Others v. Secretary of State for the Home Department [2005] 3 All ER 169 declared the legislative provisions incompatible with the right to liberty guaranteed by the European Convention of Human Rights, the UK government abandoned the executive detention scheme and introduced the “Control Orders” under the Prevention of Terrorism Act 2005; see Fenwick and Phillipson, supra note 56 at 485.

68. Fenwick and Phillipson, supra note 56 at 482, citing

WALKER, Clive, “The Treatment of Foreign Terrorist Suspects” (2007) 70 Modern Law Review 427 at 430.

69. Fenwick and Phillipson, supra note 56 at 482.

70. Scharf and Miller, supra note 58 at 289.

71. Hoffman, supra note 7 at 19.

72. Schmid, supra note 9 at 376; and see

O'CONNELL, Mary Ellen, “The Legal Case Against the Global War on Terror” (2005) 36 Case Journal of International Law 349 at 349.

73. Hoffman, supra note 7 at 19.

74. O'Connell, supra note 72 at 351.

75. See, for instance, “Call it GWOT or GSAVE, it is still rather SIIC” LA Times-Washington Post (9 August 2007), online: 〈http://www.indianexpress.com/news/call-it-gwot-or-gsave-it-is-still-rather-siic/209662/0〉.

76. Marks, supra note 14 at 113.

77. At an international level, treaties relevant to war, such as the Geneva Conventions of 1949, have substituted the term “armed conflict” for “war”; O'Connell, supra note 72 at 353.

78. Marks, supra note 14 at 87.

79. Marks, supra note 14 at 87, citing Jordan PAUST, “Addendum: War and Responses to Terrorism” ASIL Insights.

80. IGNATIEFF, Michael, “Is the Human Rights Era Ending?” The New York Times (5 February 2002), online: 〈http://www.nytimes.com/2002/02/05/opinion/is-the-human-rights-era-ending.html〉.

81. “Declaration of the Rights of Man and the Citizen” (August 1789), online: 〈http://www.historyguide.org/intellect/declaration.html〉.

82. UN Charter, Preamble, online: 〈http://www.un.org/en/documents/charter/preamble.shtml〉.

83. Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), Preamble.

84. United Nations Office of the High Commissioner for Human Rights, “Basic Facts about the Universal Periodic Review”, online: OHCHR 〈http://www.ohchr.org/EN/HRBodies/UPR/PAGES/BasicFacts.aspx〉.

85. Sundaresh MENON, “Euthanasia: A Matter of Life or Death?” Singapore Medical Association Annual Lecture 2013, 9 March 2013, (2013) 54 Singapore Medical Journal 116 at para. 20.

86. SUNSTEIN, Cass, “Incompletely Theorized Agreements” 108 Harvard Law Review 1733 at 1739−1740.

87. Menon, supra note 85 at para. 20.

88. ASHWORTH, Andrew, “Security, Terrorism and the Value of Human Rights” in Goold and Lazarus, supra note 5, 203 at 204.

89. Ashworth, supra note 88 at 205.

90. Ibid.

91. Ibid.

92. PILLAY, Navinathem, “Strengthening the United Nations Human Rights Treaty Body System: A Report by the United Nations High Commissioner for Human Rights” (June 2012), online: 〈http://www2.ohchr.org/english/bodies/HRTD/docs/HCReportTBStrengthening.pdf〉 at 17.

93. International Justice Resource Center, “Regional Systems”, online: IJR Center 〈http://www.ijrcenter.org/ihr-reading-room/regional/〉.

94. Ibid.

95. Menon, supra note 85 at para. 20.

96. HOHFELD, Wesley, “Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays” (1913) 23 Yale Law Journal 16 at 2859.

97. Hart, H.L.A., The Concept of Law (Oxford: Oxford University Press, 2012) at 7999.

98. As Jeremy Bentham wrote in “The Anarchical Fallacies”—“Right, the substantive right, is the child of law: from real laws come real rights”: in The Works of Jeremy Bentham, Vol. 2 (Edinburgh: William Tait, 1843) at 523 (emphasis in original).

99. HOFFMAN, Leonard, “The Universality of Human Rights”, Judicial Studies Board Annual Lecture, 19 March 2009, online: 〈http://www.judiciary.gov.uk/media/speeches/2009/speech-lord-hoffman-19032009〉 at para. 15

100. In this context, it is observed that there is a certain institutional bias within the UN system that appears to favour ever more legislation as the only appropriate means by which international human rights law can be implemented at the domestic level. We must, however, consider that there is a distinction to be made between implementation (e.g. adopting a new piece of legislation) and compliance (e.g. substantively complying with the underlying obligation).

101. Alain PELLET, “Seventeenth Report on Reservations to Treaties”, Sixty-third Session of the International Law Commission, Geneva (26 April to 3 June 2011, 4 July to 12 August 2011), online: 〈http://untreaty.un.org/ilc/documentation/english/a_cn4_647.pdf〉 [Seventeenth Report on Reservations to Treaties].

102. Ibid., at 32.

103. LAZARUS, Liora and GOOLD, Benjamin, “Security and Human Rights: The Search for a Language of Reconciliation” in Goold and Lazarus, supra note 5 at 12.

104. Ibid., at 1.

105. Ibid.

106. WILSON, Richard Ashby, “Human Rights in the ‘War on Terror’” in Richard Ashby WILSON, ed., Human Rights in the “War on Terror” (Cambridge: Cambridge University Press, 2005) at 1415; see generally

Aryeh NEIER, “How Not to Promote Democracy and Human Rights” in Richard Ashby WILSON, ed., Human Rights in the “War on Terror” (Cambridge: Cambridge University Press, 2005), 137. In Roberts, supra note 17 at 40, the author notes that “… the torture and ill-treatment of detainees, of which there has been much evidence in the war on terror, is, to quote Talleyrand, worse than a crime: it is a mistake. Guantanamo and Abu Ghraib have provided propaganda gifts to adversaries.”

107. Ashworth, supra note 88 at 206.

108. Ibid., at 207.

109. Kofi ANNAN, “A Global Strategy for Fighting Terrorism”, Keynote address at the Closing Plenary of the International Summit on Democracy, Terrorism and Security (10 March 2005), online: 〈http://english.safe-democracy.org/keynotes/a-global-strategy-for-fighting-terrorism.html〉.

110. Ibid.

111. Marks, supra note 14 at 118.

112. Ibid., at 101, citing Kofi Annan.

113. HICKS, Neil, “The Impact of Counter Terror on the Promotion and Protection of Human Rights: A Global Perspective” in Wilson, supra note 106, 37 at 221, citing Kofi Annan's statement to a special meeting of the Security Council's Counter-Terrorism Committee with International, Regional and Sub-Regional Organizations, New York.

114. Ashworth, supra note 88 at 224.

115. Ibid.

116. Lazarus and Goold, supra note 103 at 2, citing the National Commission on Terrorists Attacks upon the United States (9/11 Commission), Report (2004).

117. Lazarus and Goold, supra note 103 at 1.

118. Ibid.

119. Ibid., at 7.

120. Ibid.

121. Freeman, supra note 27 at 47.

122. Lazarus and Goold, supra note 103 at 7.

123. Marks, supra note 14 at 102.

124. For instance, in the aftermath of the 9/11 attacks, US Congressman Richard Gephardt said “We're in a new world where we have to rebalance freedom and security”: Moeckli, supra note 30 at 1, citing

PIANIN, E. and EDSALL, T.B., “Civil Liberties Debate Revived Amid Efforts to Fight Terrorism”, Washington Post (14 September 2001).

125. Ashworth, supra note 88 at 208.

126. Moeckli, supra note 30 at 3.

127. Ibid. (emphasis in original).

128. Ashworth, supra note 88 at 208.

129. Ibid.

130. Ibid., at 209.

131. Moeckli, supra note 30 at 7.

132. Wilson, supra note 106 at 17.

133. Ashworth, supra note 88 at 209.

134. SINNOTT-ARMSTRONG, Walter, “Consequentialism”, Stanford Encyclopedia of Philosophy (2006), where the author recognizes that classic utilitarianism requires agents to calculate all consequences for each act for every person for all time, which is an impossible task. The author subsequently points out that the principle of utility is not supposed to be used as a decision procedure or guide, but merely provide the criterion or standard of what is morally right or morally ought to be done; online: 〈http://plato.stanford.edu/entries/consequentialism/〉.

135. Ashworth, supra note 88 at 210.

136. Ibid.

137. Marks, supra note 14 at 106.

138. DERSHOWITZ, Alan M., Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven/London: Yale University Press, 2002).

139. SANDEL, Michael, Justice: What's the Right Thing to Do (New York: Farrar, Straus, and Giroux, 2010) at 3940.

140. Ashworth, supra note 88 at 225.

141. Ibid., at 216 (Discussion of Rowe and Davis v. United Kingdom (2000) 30 European Human Rights Report 1).

142. Fenwick and Phillipson, supra note 56 at 482.

143. Marks, supra note 14 at 92.

144. Ibid.

145. Hicks, supra note 113 at 216.

146. This observation is made by prominent Egyptian human rights activist Saad Eddin Ibrahim in 2003: see Hicks, supra note 113 at 219, citing the remarks by Professor Saad Eddin Ibrahim at the “Human Rights Defenders on the Frontlines of Freedom” Conference (11−12 November 2003).

147. O'Connell, supra note 72 at 357.

148. Marks, supra note 14 at 95−96.

149. SCHARF, Michael, “Defining Terrorism as the Peacetime Equivalent of War Crimes: Problems and Prospects” (2004) 36 Case Journal of International Law 359 at 372.

150. Ibid., at 372.

151. Hoffman, supra note 7 at 26.

152. Scharf, supra note 149 at 371.

153. Ibid., at 373.

154. Ibid.

155. Marks, supra note 14 at 119.

156. Although in his inaugural address on 20 January 2009, he stated “Our nation is at war, against a far-reaching network of violence and hatred”.

157. WILSON, Scott and KAMEN, Al, “‘Global War on Terror’ is Given New Name” Washington Post (25 March 2009), online: Washington Post 〈http://www.washingtonpost.com/wp-dyn/content/article/2009/03/24/AR2009032402818.html〉.

158. Banks, supra note 5 at 450.

159. BARNES, Julian, “Pentagon Lawyer Looks Post-Terror” The Wall Street Journal (30 November 2012), online: WSJ 〈http://online.wsj.com/article/SB10001424127887324205404578151181874456280.html〉.

160. “Department of Justice White Paper” NBC News (4 February 2013), online: NBC News 〈http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf〉.

161. White Paper on JI Arrests, online: 〈http://www.mha.gov.sg/publication_details.aspx?pageid=35&cid=354〉 at 13.

162. “Foreign Hit Men (not Singapore Terrorists) Picked To Pull Trigger” The New Paper (20 January 2002) (Singapore tipped off the Philippines about Mike @ Al Ghozi); “Singapore Ready to Help Prove Terror Links” The Straits Times (23 February 2002) (Singapore prepared to facilitate direct investigations by Indonesian counterparts to confirm links existed between two Indonesian suspects and JI because the Indonesians denied such links); Singapore Parliamentary Debates, 2 March 2006, p. 10, online: 〈http://sprs.parl.gov.sg/search/topic.jsp?currentTopicID=00071382-ZZ&currentPubID=00075191〉 (2 March 2006 report) and 〈http://sprs.parl.gov.sg/search/report.jsp?currentPubID=00004760-WA〉 (21 April 2008 report); 21 April 2008, p. 36 (Information sharing with Australia, the Philippines, and Thailand); and “Going After Mike and Sammy” The Straits Times (16 April 2008) (mentioned that “Mike” (Al-Ghozi) and “Sammy” (Mohd Mansour Jabarah) were preparing to stage suicide attacks against several embassies in Singapore using truck bombs and that ISD identified them and shared findings with foreign intelligences leading to Jabarah's arrest in Oman and Al-Ghozi's arrest in the Philippines in early 2002).

163. Speech by Prime Minister Lee Hsien Loong at the International Conference on Terrorist Rehabilitation and Community Resilience, online: 〈http://www.pmo.gov.sg/content/pmosite/mediacentre/speechesninterviews/primeminister/2013/March/speech_by_prime_ministerleehsienloongattheinternationalconferenc.html〉 at para. 25 [Speech by PM Lee 2013]. See also White Paper on JI Arrests, supra note 161 at 9 and 17.

164. Deputy Prime Minister Teo's Parliamentary Speech on the Internal Security Act (19 October 2011) [DPM Teo's Parliamentary Speech 2011]; and “ISA is Needed Now More Than Ever” The Straits Times (20 October 2011).

165. DPM Teo's Parliamentary Speech 2011, supra note 164.

166. Ibid.

167. Internal Security Act, s.74(3).

168. Ibid., ss.74(4) and 74(5).

169. Ibid., s.74(5).

170. Ibid., s.74(4).

171. “Ministry of Home Affairs Press Statement on ISA” (16 September 2011), online: 〈http://www.mha.gov.sg/news_details.aspx?nid=MjA4NQ%3D%3D-Dmf5juIlzOA%3D〉.

172. Internal Security Act, s.8(1)(b).

173. Ibid., s.8(1)(b)(v).

174. Ibid., s.8(2).

175. Ibid., s.8(1)(a).

176. Ibid., ss.8(1)(a) and 8(2).

177. Ibid., s.8(2).

178. Speech by Deputy Prime Minister, Coordinating Minister for National Security, and Minister for Home Affairs, Mr Teo Chee Hean, “Working Together to Keep Singapore Safe and Secure” (Ministry of Home Affairs Committee of Supply Debate 2013), online: 〈http://www.mha.gov.sg/news_details.aspx?nid=Mjc4Mg%3D%3D-CJPkCAKXpRc%3D〉; at para. 31 [DPM Teo's Parliamentary Speech 2013].

179. Ibid., at para. 31. See the Press Releases detailing the release of JI Detainees on the Ministry of Home Affairs website, online: 〈http://www.mha.gov.sg〉. See also e.g. “Two Senior JI Members Detained under ISA” AsiaOne News (11 October 2012), online: AsiaOne News 〈http://www.asiaone.com/News/Latest%2BNews/Singapore/Story/A1Story20121011-377048.html〉.

180. See the press releases detailing the release of JI detainees on the Ministry of Home Affairs website, online: 〈http://www.mha.gov.sg〉.

181. DPM Teo's Parliamentary Speech 2011, supra note 164, and “ISA Is Needed Now More Than Ever” The Straits Times (20 October 2011), and “DPM Teo: Terrorism Act Lacks Pre-emptive Powers of ISA” The Straits Times (20 October 2011).

182. DPM Teo's Parliamentary Speech 2011, supra note 164; and “ISA Is Needed Now More Than Ever” The Straits Times (20 October 2011).

183. This point was made by Associate Professor Bilveer Singh of the S. Rajaratnam School of International Studies. See “Government's Statement on the Internal Security Act” The Straits Times (17 September 2011).

184. Michael HOR, “Singapore's Anti-terrorism Laws: Reality and Rhetoric” in Ramraj et al., supra note 56, 271 at 272.

185. It should, however, be noted that the basic instruments of international human rights law do establish certain essential substantive and procedural standards relevant to the issue. First, there must be freedom from arbitrary arrest or detention, and the requirement that arrest, detention, and other deprivations of liberty must be for lawful grounds and according to established legal procedures. Second, anyone arrested or detained has a right to information about the grounds of his arrest or detention, a right to independent proceedings to determine the lawfulness of the detention, and freedom from torture or any other form of cruel, inhuman, or degrading treatment or punishment. See John MCLOUGHLIN et al., “Security Detention, Terrorism and the Prevention Imperative” (2009) 40 Case Journal of International Law 463 at 477.

186. ZEDNER, Lucia, “Seeking Security by Eroding Rights: The Side-Stepping of Due Process” in Goold and Lazarus, supra note 5, 257 at 264.

187. Art. 151(2) of the Singapore Constitution; and Internal Security Act, ss.14, 15, 16.

188. Internal Security Act, s.14.

189. Ibid., s.12(1).

190. Ibid., s.13(1).

191. Ibid., ss.9(a), 9(b) and 11.

192. Ibid., s.11(2)(a).

193. Ibid., s.11(2)(b).

194. Art. 9(3) of the Singapore Constitution; and Rule 4(1) of the Internal Security (Detained Persons Advisory Board) Rules.

195. Art. 151(4) of the Singapore Constitution; and Internal Security Act, s.13A of the ISA. See “ISA Is Needed Now More Than Ever” The Straits Times (20 October 2011), and “DPM Teo: Terrorism Act Lacks Pre-emptive Powers of ISA” The Straits Times (20 October 2011).

196. “ISA Is Needed Now More Than Ever” The Straits Times (20 October 2011).

197. This is a reference to the Internal Security (Detained Persons) Rules.

198. Ibid., Rule 81.

199. Ibid., Rule 53.

200. Ibid., Rules 23 and 31. A Superintendent shall ensure that a detainee who has complaints is allowed to make them.

201. Ibid., Rule 24.

202. Ibid., Rule 80.

203. Ibid., Rule 83.

204. Ibid., Rule 86.

205. This is alluded to in Rule 88 of the Internal Security (Detained Persons) Rules, which provides for the Minister to declare any place to be a place for the “rehabilitation of detained persons”.

206. See, for instance, Speech by PM Lee 2013, supra note 163 at para. 2.

207. HUSSAIN, Zakir, “Get Them Back on Track” The Straits Times (7 January 2012).

208. Speech by PM Lee 2013, supra note 163 at paras. 2−11. See also DPM Teo's Parliamentary Speech 2013, supra note 178 at para. 13. This was also referred to in passing in “Malay-Muslim Community Sets Up Inter-Agency Aftercare Group To Help Families of JI Detainees” in Lianhe Zaobao (14 November 2007) (translated).

209. Speech by PM Lee 2013, supra note 163 at para. 2.

210. See the publication commemorating the tenth anniversary of the RRG, Saat A Rahman (ed.), Winning Hearts and Minds, Promoting Harmony: A Decade of Providing Care and Support (Singapore, 2013) at 151 [RRG]; the publication was also reported on by the Straits Times on 7 April 2013 (see REKHI, Shefali, “The Hidden Journey of a Singapore JI Detainee” The Straits Times (7 April 2013)).

211. For an example of an ex-detainee sharing his experience during detention and his interaction with his assigned officer, see Rekhi, supra note 210, detailing the experience of an ex-detainee Abu Harith. Abu Harith shared that “What kept me going was the constant support I received—from the doctors and psychologists, and members of the community who volunteered their time to counsel me.” See also

SIM, Susan, “Captured Terrorists as Intelligence Sources and Counterradicalization Leverage” in A. DUYAN, ed., Analyzing Different Dimensions and New Threats in Defence Against Terrorism (Amsterdam: IOS Press BV, 2012) 65 at 76.

212. See Report of the Qatar International Academy for Security Studies (QIASS), “Countering Violent Extremism Risk Reduction Project” (2010), online: 〈http://soufangroup.com/wp-content/uploads/2013/12/QIASS-CVE-FINAL-Report-112410-copy.pdf〉.

213. Sim, supra note 211 at 76. See also

Hussain, supra note 207.

214. Rekhi, supra note 210. See also

Sim, supra note 211 at 76.

215. Hussain, supra note 207.

216. Hassan, Muhammad HANIFF bin and PEREIRE, Kenneth George, “An Ideological Response to Combating Terrorism—The Singapore Perspective” (2006) 17 The Small Wars and Insurgencies 458 at 463, where it is noted that: “The immediate family members were also offered psychological and emotional support by trained counsellors who visited them regularly to assess their condition and offer assistance.”

217. An Aftercare Group (ACG), a network of Muslim organizations which ISD facilitated the establishment of in 2002 (comprising Taman Bacaan, the Association of Muslim Professionals, Mendaki, Khadijah Mosque, and En-Naeem Mosque), provide financial and social support to the families. They provide a range of financial (subsidies, bursaries, school pocket money, etc) and other support (tuition, text books), and family care services like counselling, to help the families. The ISD aftercare officer will link up detainees’ families with the ACG to obtain the necessary help, including watching over and mentoring children who have developed problems. See also “Malay-Muslim Community Sets Up Inter-Agency Aftercare Group To Help Families of JI Detainees” Lianhe Zaobao (14 November 2007) (translated).

218. Hussain, supra note 207. The author states: “The Straits Times understands that detainees and those on Restriction Orders are encouraged to pursue further education and training, whether in detention or post-release.”

219. Rules 85(1), 85(2), 85(3), and 85(4) of the Internal Security (Detained Persons Advisory Board) Rules.

220. Ibid.

221. Ibid., Rule 85.

222. Li-Ann, THIO, “‘Pragmatism and Realism Do Not Mean Abdication’: A Critical and Empirical Inquiry into Singapore's Engagement with International Human Rights Law” (2004) 8 Singapore Year Book of International Law 41 at 69.The White Paper titled “The Jemaah Islamiyah Arrests and the Threat of Terrorism” is publicly available at the website of the Ministry of Home Affairs, online: 〈http://www.mha.gov.sg/get_blob.aspx?file_id=252_complete.pdf〉.

223. Thio, supra note 222 at 69.

224. See the Press Release dated 7 March 2013, detailing the further detention and releases under the ISA, on the Ministry of Home Affairs website, online: 〈http://www.mha.gov.sg〉.

225. See the “Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba”, online: 〈http://www.dni.gov/files/documents/March%202013%20GTMO%20Reengagement%20Release.pdf〉. It should be noted that these figures may be compared with the figures provided by the New America Foundation, a US-based non-profit, non-partisan public policy institute, which cites lower figures of about four percent and 4.7 percent for the confirmed and suspected recidivists respectively, online: 〈http://newamerica.net/sites/newamerica.net/files/profiles/attachments/GTMO_Appendix_5-7-2013.pdf〉.

226. See, for instance, RRG, supra note 210. See also the recent news report, MOKHTAR, Maryam, “Religious Rehab Group's Work Praised” The Straits Times (26 June 2013), which reports on the Deputy Prime Minister's praise for the RRG and its efficacy in fighting the terror threat.

227. “Government's Statement on the Internal Security Act” The Straits Times (17 September 2011).

228. Joint Task Force Guantánamo is the American military force based at Guantánamo Bay.

229. Timeline Theatre Company, “Guantánamo: Honor Bound to Defend Freedom”, online: 〈http://www.timelinetheatre.com/guantanamo/〉.

230. Lazarus and Goold, supra note 103 at 22.

231. Ibid., at 8.

232. Kent ROACH et al., “Introduction” in Ramraj et al., supra note 56 at 1.

233. Lazarus and Goold, supra note 103 at 8. See also ibid.

* Chief Justice, Supreme Court of Singapore. This paper is adapted from the Harish Chandra Memorial International Lecture that I delivered in New Delhi on 18 April 2013. The views and ideas contained here are personal. They are informed by my career in the law, which included a stint as the Attorney-General. I am deeply grateful to my colleague, Mr Justin Yeo, Assistant Registrar of the Supreme Court, for his considerable assistance in the research and preparation of this paper and for his very valuable contributions to the ideas contained here.

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International Terrorism and Human Rights

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