The Terrorism Suppression Act and Criminalisation of National Liberation Groups
The term “terrorism” is problematic because it is both descriptive and pejorative. It can be used to describe horrific behaviour that ought to be widely condemned, such as the indiscriminate attacks of 9/11 or the 2002 Bali bombing.
By Cameron Walker
But it also has been used to denounce groups who have engaged in armed struggle, without regular resort to killing civilians, in countries where peaceful protest has been thwarted by state repression.
During solidarity campaigns to oppose Apartheid and the Indonesian occupation of East Timor, New Zealand human rights activists supported groups denounced as terrorists by New Zealand and other Western countries.
British Prime Minister Margaret Thatcher, United States President Ronald Reagan and NZ Prime Minister Robert Muldoon referred to the African National Congress (ANC) in South Africa as a terrorist organisation. Senior National Party MPs continued to denounce the ANC as terrorists until 1990. Despite this, the NZ anti-Apartheid group Halt All Racist Tours (HART) organised the “keep a soldier in the field campaign”, openly raising money for the armed struggle of the ANC and the South West African Peoples Organisation (SWAPO) against the South African government. Armed struggle against Apartheid was conducted both within South Africa and neighbouring African countries.[i]
In 1993, officials provided memos to Foreign Affairs Minister Don McKinnon, describing East Timorese guerrilla leader Xanana Gusmao as a “self confessed terrorist”, after NZ East Timor solidarity activists requested the NZ government to call on Indonesia for his release.[ii]
Indonesia’s military occupation of East Timor from 1975 to 1999 was renowned for its brutality, killing almost a third of the country’s pre-invasion population.
Passing of the Terrorism Suppression Act
With this history in mind, a number of submitters to the Select Committee considering the Terrorism Suppression Act 2002 expressed concerns that the legislation could be used against supporters of overseas liberation movements unpopular with the NZ government. To ease these concerns an “avoidance of doubt” clause was inserted into the sections that make it an offence to provide funds or make property and financial services available to terrorists. The avoidance of doubt clauses in ss 8(2) and 10(2) stated that it was not an offence to collect funds or make property available “intending it be used, or knowing it would be used for the purpose of advocating democratic government or the protection of human rights and that is not involved in any way in carrying out terrorist acts”.[iii]
However, these sections were repealed by the Terrorism Suppression Act Amendment Act 2007, increasing the possibility that the legislation could criminalise people involved in international solidarity campaigns. The Amendment Act also authorises the Prime Minister to both make terrorism designations and review those designations every three years, whereas in the original Act the High Court performed this role.
Since 2010, John Key has used this power to designate a number of organisations not on the United Nations Consolidated List of Al-Qaeda entities; a departure from the Clark era when only organisations on the UN list were designated. Designated groups now include the Kurdistan Workers Party (PKK), who have been battling Turkey for an autonomous Kurdish homeland since 1984; Colombian Marxist guerrilla groups the Revolutionary Armed Forces of Colombia (FARC) and National Liberation Army (ELN); the Communist Party of the Philippines (CPP) and its armed wing the New People’s Army (NPA) who have been fighting the Philippines government since 1969; as well as Palestinian groups including the armed wing of Hamas and the Al-Aqsa Martyrs Brigade. The causes, ideologies and modus operandi of these groups are very different to the indiscriminate Al-Qaeda-style terrorism that the Terrorism Suppression Act 2002 was intended to combat.
To designate a group, the Prime Minister has to be satisfied on reasonable grounds that the group has knowingly carried out or participated in at least one ”terrorist act”. The definition of a “terrorist act” in s 5 has been described as ”awkward and multifaceted” by the former Dean of Victoria Law School, Matthew Palmer.[iv] The Human Rights Commission recently described the definition — and other terms within the Act — as “open to interpretation”, with the potential to be “applied very broadly by law enforcement and intelligence officials”.[v]
According to s 5 the “terrorist act” must be carried out with the purpose of advancing an “ideological, political, or religious cause” with the intention to:
a) induce terror in a civilian population; or b) to unduly compel or to force a government or an international organisation to do or abstain from doing any act.
Furthermore the “terrorist act” must be intended to cause one of the following outcomes:
a) the death of, or other serious bodily injury to, 1 or more persons (other than a person carrying out the act): b) a serious risk to the health or safety of a population: c) destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, if likely to result in 1 or more outcomes specified in paragraphs (a), (b), and (d): d) serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life: e) introduction or release of a disease-bearing organism, if likely to devastate the national economy of a country.
Law of Armed Conflict exemption
An “avoidance of doubt clause” was inserted to provide guidance in places of armed conflict. Section 5(4) states that an act is not a “terrorist act” if “it occurs in a situation of armed conflict and is, at the time and in the place that it occurs, in accordance with rules of international law applicable to the conflict.” However, this section alone is insufficient to protect legitimate liberation groups from designation.
The designation papers compiled by the NZ government’s Terrorism Designations Working Group have interpreted s 5(4) to mean compliance with the 1949 Geneva Conventions and Additional Protocol II (1977) to the Geneva Conventions, which regulate the conduct of civil conflicts.
Article 3 of the 1949 Geneva Conventions outlaws the taking of hostages, extrajudicial killings and other inhumane treatment by either state parties or non-state armed forces.[vi] Under art 1 of the 1977 Conventions, a non-state armed force must be “under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations” to fall within the Conventions’ jurisdiction.[vii] Article 1 of the 1977 Conventions restricts cover to instances of sustained armed conflict; it does not apply to internal disturbances, such as riots or sporadic instances of violence.[viii]
Edre Olalia, a prominent human rights lawyer in the Philippines, has criticised the Conventions’ requirement to hold and maintain control of territory for being grounded in the assumptions of conventional warfare, while disregarding the special features of guerrilla warfare.[ix]
Many guerrilla campaigns against military occupations or authoritarian governments, including those in South Africa and East Timor, would be too sporadic for cover.
Terrorism designation papers
Before the Prime Minister makes a designation, the Terrorism Suppression Working Group produces a paper providing the legal rationale for the designation.[x] Following designation the papers are published on the Police website.
The Working Group has interpreted the s 5 definition of “terrorist act” broadly. Some of the actions fit common public notions of terrorism, such as suicide bombings on civilians by the Muslim fundamentalist group Al-Shabaab. However, some other actions are cloudier, such as a jail break of guerrillas by Colombia’s left wing National Liberation Army (ELN) or the NPA shooting of armed security guards and sabotaging mining equipment owned by a company accused of abusing the environment and committing violence against miners in the south of the Philippines.
Criminal offences triggered by terrorist designations
Once a group is designated it becomes a criminal offence to deal with the property of the group, make property or financial services available to the group, recruit members to the group or participate in the group.
Whether or not fundraising for a designated group would constitute an offence is uncertain, as the section prohibiting the financing of terrorism does not make an explicit reference to designated terrorist entities. Instead, it says that it is an offence to “provide or collect funds intending that they benefit, or knowing that they will benefit, an entity that the person knows is an entity that carries out, or participates in the carrying out of, 1 or more terrorist acts.”
As only one “terrorist act” is required, had this legislation existed in the 1980s the Muldoon government might have designated the ANC based on the 1983 Church Street Bombing, when the ANC’s armed wing bombed the Pretoria offices of the South African Airforce, killing sixteen. Had the group been designated, New Zealanders who donated money or provided practical support to the ANC for their broader political and armed struggle against Apartheid could have potentially been prosecuted.
Mistaking Colombian and Philippine activists for terrorists
Many of the designated groups hail from countries where democratic freedoms have been curtailed and opposition activists have been branded as terrorist supporters and detained under measures ostensibly enacted to fight terrorism.[xi] Consequentially, information from these countries’ authorities about supporters of terrorism may be unreliable.
References included in the 2010 FARC and 2013 CPP/NPA designation papers give the impression that the Terrorism Designations Working Group has not given sufficient consideration to the regular labelling by state security forces of left leaning political figures in Colombia and the Philippines as supporters of terrorism. The Group may therefore be prone to taking unreliable information at face value.
Liliany Obando and persecution in Colombia
A section of the FARC paper entitled “Regional presence/links with New Zealand citizens” (at ) claimed, “there are undoubtedly people in Australia and New Zealand who are sympathetic to FARC’s cause”. It continued, “[t]here are some tenuous indications of person-to-person links regarding the FARC and/or the social conditions which help underpin the FARC, but nothing concrete is known to exist”.
The paragraph concludes with a reference to a news story about a “Colombian woman who visited Australia in 2005 and 2007 as a representative of a farm workers’ peak union body” being arrested in Colombia, and charged with “covert offshore fundraising” for the FARC. This is a reference to the case of Liliany Obando, a sociologist and mother of two, who was working for Fensuagro, Colombia’s agricultural workers’ union.
Obando had undertaken speaking tours in Canada and Australia to discuss the repression of trade unions in Colombia. One week prior to her arrest in 2008 she had released a report documenting the murder of 1500 unionists by right-wing paramilitaries that were supported by government forces. Amnesty International described her charges as “trumped up” and 100 British MPs, lawyers and trade union leaders signed a letter to Colombia’s President calling for her release.
The Colombian authorities claimed that Obando’s name appeared in documents from the infamous FARC laptop retrieved from a FARC camp in Ecuador that had been bombed in 2008 by Colombian Armed Forces. According to the Colombian government the laptop, which miraculously survived the bombing, linked the FARC and a large number of opposition figures, as well as overseas trade unions and political parties. The Colombian Supreme Court, in 2011, declared the files from the laptop to be inadmissible in another case because the files’ authenticity could not be verified and legal procedure had not been followed.
“Philippine Communists running for Senate”
The October 2013 paper advising the re-designation of the Communist Party of the Philippines and New Peoples Army included a discussion of an alleged rift within the leadership of the Communist Party over what balance it should give to armed struggle in relation to political action. The paper states that “tensions flared up in 2010, when CPP members stood for senate election for the first time” (at ). The reference for this claim is an article in the Small Wars Journal by a former Armed Forces of the Philippines analyst, which discussed an alleged rift in the Communist Party over raising money for the senate campaigns of the left wing candidates Satur Ocampo and Liza Maza. The article provided no references for its claims.
During the 2010 elections, former Congress representatives Satur Ocampo and Liza Maza stood for the Senate as guest candidates on the ticket of the Nacionalista Party. They failed to win Senate seats but their campaign garnered much attention in the national media, as their left wing political programme and activist backgrounds made them stand out amongst their more traditional opponents.
In the Philippines a portion of the Congress is reserved for small parties, known as partylists, which represent marginalised sectors of society. Between 2001 and 2010 Maza was a Congresswoman for the Gabriela partylist, which represents women, and Ocampo represented the left wing nationalist Bayan Muna partylist.
During their three terms in Congress, Ocampo and Maza were accused by right wing opponents of being sympathisers — or even outright supporters — of the country’s ongoing Communist insurgency. Over the past decade Bayan Muna and Gabriela members, like members of similar organisations in the Philippines, have been assassinated and subjected to state harassment.[xii]
Ocampo and Maza were subject to particularly harsh criticism during the 2010 election campaign from retired General and fellow Senate candidate Jovito Palparan, who warned of the “dire consequences that may befall” the Philippines if they were elected. General Palparan, a fanatical anti-communist, earned the moniker “Butcher Palaparan” in the mid-2000s due to extensive human rights abuses committed by forces under his command. He is currently a fugitive after being charged with the kidnap and disappearance of two young female university students.
In other Western jurisdictions counter-terrorism law has been misused to target international human rights activists and migrants who have fled from repressive regimes. A representative of the Australian Federal Police was sent to Bogota to interrogate Liliany Obando. In Melbourne, in 2010, homes of Kurdish residents and a Kurdish community Centre were raided by Australian Federal Police looking for links between the Australian Kurdish community and the PKK. Similar scenes were repeated in the US later that year when FBI agents raided the homes of anti-war and Palestine solidarity activists searching for links between the activists and the Popular Front for the Liberation of Palestine (PFLP) and FARC.
In Australia mere association with someone who is a member of a designated terrorist organisation can be punished by up to three years in prison.[xiii] The US Supreme Court held, in 2010, that providing information on non-violent conflict resolution to a designated organisation, such as the PKK, would constitute providing “material support” to terrorists.[xiv]
NZ’s Terrorism Suppression Act is milder than its Australian and US equivalents. However, the wide discretion given to the Prime Minister to designate a terrorist group and the broad definition of what constitutes a “terrorist act” raises the possibility that the Act could be misused. NZ’s list of designated terrorist entities now resembles that of the United States, the European Union and Australia.
Out of context references (mentioned above) in papers by the Terrorism Designations Working Group raise concerns that the Group may uncritically accept claims linking political activists with terrorism. Unreliable information has led the New Zealand authorities to previously (and falsely) accuse people of terrorist links. In 2002, the Algerian asylum seeker Ahmed Zaoui was sent to prison, after arriving in NZ, when the police found his name included on the website of the American conspiracy theorist and cult leader Lyndon LaRouche.
The Terrorism Suppression Act was initially passed when the Labour Party was in government, however, National has used it enthusiastically. Both parties bear responsibility for this Act and therefore should be pressured to either repeal it or — at the very least — amend the Act to repeal the sections that put human rights activists at risk of prosecution.
Cameron Walker is a BA/LLB student at the University of Auckland and a member of Auckland Philippines Solidarity.
[i] The University of Canterbury’s Halt All Racist Tours Collection includes a number of pieces of correspondence relating to the Keep a Solider in the Field campaign.
[ii] Maire Leadbeater Negligent Neighbour: New Zealand’s Complicity in the Invasion and Occupation of Timor-Leste (Craig Potton Publishing, Nelson, 2006) at 148.
[iii] Alex Conte Counter-Terrorism and Human Rights in New Zealand (New Zealand Law Foundation, Wellington, 2007) at 360.
[iv] Matthew Palmer “Counter-Terrorism Law”  NZLJ 456 at 457.
[v] Human Rights Commission Operation 8: A Human Rights Analysis (December 2013) at 79.
[vi] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva (12 August 1949), art 3.
[vii] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977.), art 1.
[viii] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (8 June 1977.), art 1.
[ix] Edre U Olalia The Status in International Law of National Liberation Movements and Their Use of Armed Force (International Association of People’s Lawyers, Utrecht, 2002) at 18.
[x] The Terrorism Suppression Working Group is chaired by the Department of the Prime Minister and Cabinet and includs officials from the Police, Crown Law, the Security Intelligence Service (SIS), Ministry of Foreign Affairs and Trade, Ministry of Justice and the External Assessments Bureau.
[xi] In Turkey and Israel/the Occupied Territories overly broad anti-terrorist legislation aimed at the PKK and Palestinian militant groups has been used to detain unarmed Kurdish and Palestinian opposition activists.
[xii] William N Holden “Ashes from the Phoenix: State Terrorism and the Partylist Groups in the Philippines” (2009) 15 Contemporary Politics 377 at 383.
[xiii] Criminal Code Act 1995 (Cth), s 102.8.
[xiv] Holder v Humanitarian Law Project 561 US — (Docket No 08-1498) (2010).