Why it is better to take terrorists to court

2013-11-18

What are the best and most morally justifiable ways to deal with the terror threat in Africa? As the continent reels from the horrific attack by the extremist group Al-Shabaab on the Westgate Mall in Kenya on 21 September and the cold-blooded assassination of journalists in Northern Mali on 2 November, this question is as valid today as it was a decade ago.

A lot has changed since the 9/11 attacks in the United States and the ensuing focus on global security, yet many still believe a heavy-handed approach is the only answer for combating terrorism. We don’t seem to be learning from our mistakes.

Recent events in Africa show that the political and security considerations are still often given the priority over legal counter-terrorism responses. Some believe in ‘national security at all costs’ where lines between intelligence for national security on the one hand, and criminal investigation and trial processes on the other, are often blurred. Illegal renditions are preferred to extraditions. Arbitrary detention and torture are used instead of legal questioning and investigations.

It is clear that countries threatened by Al-Shabaab in East Africa and the Horn, Boko Haram in Nigeria or Al-Qaeda in the Islamic Maghreb (AQIM) in the Sahel are under great pressure to provide quick responses. The criminal justice system is quite the opposite – slow and laborious. It takes time to build the capacity of the police, lawyers, prosecutors and judges to investigate and bring these criminals to trial. But the cost of circumventing the law when it comes to counter-terrorism could be even higher in the long run.

There are at least four reasons why it is better to respond to terrorism using the criminal justice system. Firstly, a criminal justice approach can help prevent terrorist acts. Through clear national legislation against actions that are taken during the course of preparing for terrorist attacks, such as conspiracy, incitement, recruitment, and financing, suspects can be rounded up before they strike. This approach allows officials to intervene early on in the planning stages and to gather vital intelligence that could stop the attacks from taking place. This kind of information can also lead to the arrest of other members of terror groups who might try to commit similar acts in the future.

Secondly, by treating suspects according to the law and giving them a fair trial, the state complies with its international and national legal duties. This matters because it allows the state to maintain its moral high ground which is sometimes its biggest advantage against extremists who kill and terrorize innocent civilians. By adhering to the rule of law, the state strengthens its legitimacy.

Thirdly, a military-based counter-terrorism strategy can have the unintended consequence of allowing terrorists to cast themselves as ‘warriors’ – engaged in a just and noble cause. Prosecuting terrorists as mere criminals strips them of this undeserved badge of honour.

Fourthly, taking terror suspects to court and affording them a public trial also gives the victims a chance to be heard. Secretive, non-legal means of combating terrorism denies victims this important right and step forward in their healing process. Following the criminal justice approach therefore strengthens the social contract between governments and their people.

Undoubtedly, the current climate in many countries has strengthened the hand of governments and securocrats who believe they have carte blanche to root out terrorism by any means. Under these circumstances human rights and the rule of law become mere ‘nice-to-haves’. That is why former United Nations Secretary general Kofi Annan insisted in 2005 that ‘Compromising human rights cannot serve the struggle against terrorism. On the contrary, it facilitates achievement of the terrorist’s objective – by ceding him the moral high ground and provoking tension, hatred and mistrust of government among precisely those parts of the population where he is most likely to find recruits’.

Speaking to police and prosecutors in African countries that have experienced terrorist attacks in recent years, it is evident that despite the extensive investment in training, equipment, and developing new laws and policies, their governments are not taking them seriously enough. Criminal justice officials are not allowed to lead the counter-terrorism efforts.

The Open Society Foundations report on the response to the 2010 Kampala attacks by Al-Shabaab, for example, makes for depressing reading. This is especially the case after working closely, as the Institute for Security Studies has done over many years, with officials to develop new laws and capacity building programmes in the various countries of the region.

According to the OSF report ‘Governments in the region have cited the need to fight terrorism as a pretext to crack down on political opposition, human rights defenders, and lawful expressions of dissent’. The report looks at how the governments of Kenya, Uganda, the United States, and the United Kingdom responded to the bombings and accuse governments of using abusive counter-terrorism tactics and operations. ‘The counter-terrorism actions that followed the bombing were characterized by human rights violations, including allegations of arbitrary detention, unlawful renditions, physical abuse, and denial of due process rights’.

We can only hope that a similar trajectory is not on the cards in relation to the recent attacks in Nairobi.

Getting this right is important. Not just because it is legally and morally the right approach, but also because it makes strategic sense. Building the necessary skills in the criminal justice system is slow and costly. There are no quick fixes; nothing a one-day workshop can do. However, in the long run, this is the best way to counter terrorism in Africa and elsewhere in the world.

This is an edited version of the author’s address to the Council on Foreign Relations roundtable series on Global Counter-terrorism Strategies in New York on 4 November 2013.  For more on this event see Shaping the global debate on counter-terrorism.

Anton du Plessis, deputy executive director, Institute for Security Studies

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