Chapter 1: Terrorist Legislation

Amongst the primary avenues for countering the threat of terrorism, is the use of terrorism legislation as a tool to actively mitigate the threat of terrorism. Terrorism legislation remains an important vanguard for states in the fight against terrorism. Terrorism legislation certainly differs from state to state and this is the same with the rest of the ASEAN region. A better understanding of the legislative impetus for decisions undertaken is important. As the Southeast Asian region continues to make the necessary revisions to existing terrorism legislation, it is important to consider the manner through which legislation can act as a force for deterrence against the evolving threat of terrorism.

Most recently in 2017, Singapore revised its laws on terrorism legislation to include the death penalty for acts of nuclear terrorism. The new law includes extra-territorial jurisdiction. The revisions come as a result of the changing nature of the threat of terrorism and shifts in capability and capacity of the groups both globally and within the region. These include the explorations of the possibility of conducting a nuclear act of terrorism. With the changing times, placing a legal framework in action remains a foremost task to ensure that there is a level of adaptations as the legal frameworks expand and evolve in view of present terrorism threat dynamics. The commitment of a fatal act of terrorism using radioactive material or nuclear explosive devices will face the mandatory death penalty “The legislation paves the way for Singapore’s ratification of the United Nations’ (UN) International Convention for the Suppression of Acts of Nuclear Terrorism (ICSANT)”.1

Over the last 2 decades, efforts have been made to strategically mitigate the threat of terrorism at a regional level. These efforts have been made not only at the level of efforts to improve the present legislation through an active review of the counter terrorism legislation, but additionally, expand the present legislative frameworks to enable the state to be in a better position to embrace the legal challenges of the future.

Source: JSTOR, 2019

1.1 Anti-Terrorism / Counter-Terrorism Legislation

The terrorist legislation only emerged in Singapore after 9-11, which possibly indicates the seriousness of the criminal element within terrorist networks. We recall that like other scholars, Rappa has argued that all terrorists are criminals but not all criminals are terrorists. For example, a shoplifter or a petty thief is usually not a terrorist. “Usually” because their criminal act does not reveal anything more than what they have done at that point in time. Perhaps more pertinent, is the dependence on the ability to criminalise acts of terrorism. It is the criminal record that is more important. The criminal record reveals more about the person.

While legislation is often seen to be an immutable part of the framework of a just system of governance, Max Hill QC, the Independent Reviewer of Terrorism Legislation in reviewing the existing laws in Britain noted that “Britain cannot ‘legislate its way out of’ the threat from returning Isis fighters and home-grown extremists.”2 He was of the view that additional legislation has an inherent tendency to “ ‘aggravate’ conventional crimes like murder and possessing an offensive weapon to hand would-be terrorists longer sentences.”3

1.1.1 Definitional Debate and Legislation

The debates on the definition of terrorism impact the manner through which the UN Security Council can come up with reasonable solutions. Under Security Council resolution 1373 (2001), on matters of mutual legal assistance, the Security Council decides that all States must afford one another the greatest measure of assistance. The purpose of this provision is to encourage States, and thus their competent judicial authorities, to interpret broadly, without worrying about technical issues, the scope of the mutual assistance that can be given, even if it includes forms that are not expressly mentioned in the resolution and the universal instruments against terrorism. In addition, the Council calls upon all States to find ways of intensifying and accelerating the exchange of operational information.

2 (e) of the resolution, notes that States shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice.56 Furthermore, the resolution prohibits granting safe haven to perpetrators of terrorist acts (paragraph 2 (c)). In order to give full effect to those provisions, States are to apply the extradite or prosecute (aut dedere aut judicare) principle.

1.1.2 Counter-Terrorism Legislation vs Anti-Terrorism Legislation

The nuanced dynamics of counter-terrorism legislation and anti-terrorism legislation have added complexity to a nuanced understanding of the legal and operational differences that exist on legislating against acts of terrorism.

Activity 3.1

Reflect

What are the differences between Anti-Terrorism Legislation and Counter-Terrorism Legislation?

1.1.3 Human Rights and Counter Terrorism Legislation

In a recent assessment of Counter Terrorism Legislation in European Union Countries, Amnesty International warned of a “deep and dangerous state of permanent securitisation” that was sweeping across Europe. Amnesty International worked on the publication of a comprehensive human rights analysis of counter-terrorism measures across 14 EU member states. The report noted that “deluge of laws and amendments passed with break-neck speed, is undermining fundamental freedoms and dismantling hard-won human rights protections.”

Central to formulation of legislation is the need to keep human rights and international security in view in the process of both the formulation of the legislation and execution. For the United Nations, the Security Council has undertaken several counter-terrorism actions against States through the use of sanctions.

Central to the discussion on the use of terrorism legislation is its assumed tendency to infringe on human rights and privacy. Navigating the terrain between safety, security and privacy has been on the rise in light of the increasing role of technology.

1.1.4 Legislation and Technology

A fundamental question of the remit of managing crime and terrorism is the role of technology and the manner through which legislation today is forced to chase new world crime. Rand estimates that “The Federal Aviation Administration (FAA) Aerospace Forecast estimates that there will be between 2.75 million and 4.47 million aircraft flown by hobbyists and between 0.24 million and 1.62 million aircraft flown commercially by 2021.”4. The numbers in this case, provide a lens wherein legislation is forced to compete with new challenges impacting Traffic Monitoring and Management of technology and its impact on safety and security.

Activity 3.2

Reflect

Visit the Singapore Statutes Online website for a better appreciation for the legal statutes.

Read report on Operation Classific: A Report on the Use of Terrorism Legislation. The report focuses on the use of the UK terrorism legislation by the police in the course of their criminal investigation.

1.2 Security in Southeast Asia

Security arrangements in Southeast Asia have sought for cooperation between ASEAN members for mutual benefit. In this regard, the Five Power Defence Arrangements (FPDA) is the prime security arrangement in Southeast Asia. They are a series of defence relationships established by a series of bilateral agreements between the United Kingdom, Australia, New Zealand, Malaysia and Singapore signed in 1971, whereby the five states will consult each other in the event of external aggression or threat of attack against Peninsula Malaysia (East Malaysia is not included as part of the area of responsibilities under the FPDA) or Singapore.

The FPDA was set up following the termination of the United Kingdom's defence guarantees of Malaysia and Singapore as a result of Britain's decision in 1967 to withdraw its armed forces east of Suez. The FPDA provides for defence co-operation and for an Integrated Air Defence System (IADS) for Malaysia and Singapore based in RMAF Butterworth under the command of an Australian Air Vice-Marshal (2-star). RMAF Butterworth, until 1988 under the control of the Royal Australian Air Force, is now owned by the Royal Malaysian Air Force, but hosts rotating detachments of aircraft and personnel from all five countries.

In 1981, the five powers organised the first annual land and naval exercises. Since 1997, the naval and air exercises have been combined. In 2001, HQ IADS was re-designated Headquarters Integrated "Area" Defence System. It now has personnel from all three branches of the armed services, and co-ordinates the annual five-power naval and air exercises, while moving towards the fuller integration of land elements. In 2017, under the shadow of current challenges, it includes counter-terrorism and maritime security countries which reiterated their continued importance amidst the challenges that ensued. Expanding on its efforts, in the “spirit of promoting transparency, the FPDA will enhance its observers programme for non-member countries.”5

Joint security arrangements in Southeast Asia are important because this region has frequently had episodes of political violence. These have included activities by Communist groups (for example, in Malaysia, Thailand and the Philippines) and activities directed against ruling Communist regimes (such as the bomb attacks in Laos in 2000-2001). Violence has also at times been state-sponsored or condoned, as in the case of Christian anti-separatist groups in the southern Philippines (opposing Muslim secessionists) and militias in East Timor, Papua and other parts of Indonesia.

Security in Southeast Asia has become more of an issue as of late. The Bali bombings on 12 October 2002 to the attacks in that Indonesia have faced in Jakarta in January 2016 have directed attention to the issues that Southeast Asia is a region conducive to the activities of both indigenous and international terrorist groups, and that elements of the two have been closely interlinked.

The Afghan experience has been central to the recent development of more radical Islamic groups in Southeast Asia. Today the waves of foreign fighters that have gone to join fighters in Syria and in Iraq face the same fate. Some have estimated that close to 40,000 foreign fighter joined the war in Syria and Iraq. The great majority of Southeast Asia’s estimated 230 million Muslims (20 percent of the world total) has moderate and tolerant views and have been willing to coexist with other religious groups and secular institutions. However, the more strident and anti-pluralist vein of Islam propounded from areas such as Saudi Arabia, Pakistan and Afghanistan has had an appeal to a minority. This appeal was deepened by the process of international recruitment for the anti-Soviet resistance in Afghanistan and many leaders of Southeast Asia’s radical Islamic groups served or were trained there. In addition, many Southeast Asians have studied in madrasas (religious schools) - either in Southeast Asian countries or overseas, for example, in Pakistan - where a more strict interpretation of Islam is taught.

The advent of a large-scale and radical Islamic resistance in Afghanistan also added a new dimension to Southeast Asian Islamic separatism, whereby local groups could now gain added inspiration, assistance and funding from prestigious and well-financed international movements. Southeast Asia up to the 1980s already had several regionalist and separatist Islamic based movements, notably in southern Thailand, the long running resistance in Aceh and especially in the southern Philippines. While the Afghanistan conflict had comparatively little impact on the situation in southern Thailand or in Aceh, it has had a major impact on southern Philippines, where Islamic radicals have found added sources of support and finance. The situation was often exacerbated by the presence of cases of kidnap for ransom by the Abu Sayyaf Group in Southern Philippines.

Socio-economic factors have fostered further support for radical Islamic groups in the region. Efforts to attain autonomy by Islamic movements have often either been resisted by central governments or have been implemented ineffectively (as in the southern Philippines). The Asian financial crisis since 1997 has also put pressures on regional governments and spending on crucial areas such as education has been restricted. This has increased the attraction of religious schools. Furthermore, well-funded Islamic radical movements have been able to offer financial support both to adherents and their families (for example, in the event of death in combat). This has had considerable appeal to those in outlying and economically disadvantaged areas.

Several additional factors make Southeast Asian states ‘countries of convenience’ for terrorist activists and groups.

Borders are often porous and immigration controls and systems of administration weak. Malaysia, for example, has not until recently required visas for anyone from Muslim countries which are members of the Organisation of Islamic Countries (OIC). The Philippines has a weak immigration system and it is easy for foreigners to marry Filipino citizens and effectively change their identity. Administrative requirements can also be circumvented through corruption.

There are long-standing economic and trade links between Southeast Asia and Middle Eastern and South Asian countries, many of which are outside normal financial channels and not readily monitored by governments. These have facilitated funds transfers from the Middle East and South Asia to radical groups in the region.

Criminal activity (including drugs traffic) is widespread in the region and can assist resources movement by radical groups.

Southeast Asia has large supplies of weapons, both indigenously produced and imported.

It is increasingly evident that Southeast Asia has become an important arena for international terrorism, notably Al Qaeda. Al Qaeda is a highly decentralised and elusive transnational terrorist network that is difficult to identify and combat. The International Institute of Strategic Studies has argued that while Al Qaeda has been damaged by coalition operations since September 11 in Afghanistan and elsewhere, the organisation may well retain two-thirds of its core leadership and the great majority of the approximately 20,000 activists who were trained in its Afghan camps after 1996.

The Singapore based terrorism specialist Rohan Gunaratna estimated in early 2002 that about one-fifth of Al Qaeda’s organisational strength was in Asia overall. Gunaratna argues that “their leaders are handpicked, mostly educated in the Middle East, speak Arabic unlike the vast majority of Asian Muslims, and were already of a radical bent. Al Qaeda’s Asian core is handpicked from several hundred jihadi volunteers who fought in Afghanistan, including, inter alia, Central Asians, Chinese, Pakistanis, Bangladeshis, Indonesians, Malaysians, Singaporeans and Filipinos”.(Gunaratna, 2002, p.168)

In Southeast Asia, Al Qaeda’s activities appear to have been concentrated in the Philippines, Malaysia, Singapore and Indonesia. Al Qaeda established contacts in Southeast Asia from 1988 and established a logistics base in the Philippines in the early 1990s. This base included use of Islamic charities and specially established businesses to channel funds. While many of its activities remain to be revealed, it has been alleged that Al Qaeda developed ambitious plans to conduct a series of bombings of airlines in the region, as several cases have illustrated:

A series of attacks and assassinations was planned by the Pakistan-born Al Qaeda member Ramzi Yousef (who had led the bomb attack on the World Trade Centre in New York in February 1993). Yousef came close to destroying a Philippines Airlines flight from Manila to Tokyo with a bomb in November 1994. He also was involved in planning a series of bombings and assassinations before his plans were uncovered after bomb components set off a fire in his Manila apartment in February 1995. Al Qaeda went on, however, to establish extensive links with two radical groups, Abu Sayyaf and the Moro Islamic Liberation Front (MILF), both based in the southern Philippines (see below).

Another activist, Fathur Rohman al-Ghozi, born in Indonesia and trained by Al Qaeda, operated extensively in the Philippines and organised a series of five bombings in Manila on 30 December 2000 which killed 22 and injured over 100.

Another major plan was uncovered by Singapore’s Internal Security Department and revealed in January 2002. Singapore activists associated with the radical Islamic group Jemaah Islamiah planned with external help to develop large truck bombs to attack targets in Singapore. These included U.S. personnel, installations including the U.S. Embassy and possibly the adjacent Australian High Commission.

Arrests in Singapore and later Malaysia and the Philippines since late 2001 suggest that Jemaah Islamiah (JI) has had an extensive capacity to organise a large and possibly still largely unknown network of ‘sleeper cells’, both logistical and operational (as an official Singapore statement on these issues from September 2002 has argued). Jemaah Islamiah appears to operate in loose association with several other groups including the Moro Islamic Liberation Front (MILF) and, according to Rohan Gunaratna, together they have been ‘part of a regional terrorist network operating under the aegis of Al Qaeda. JI is conceivably Al Qaeda’s instrument connecting mainstream and renegade terrorists and guerrilla elements in the region.’ (Gunaratna, 2002, p. 193).

Terrorist groups have been reported to be active in at least four countries: Indonesia, Malaysia, Thailand and the Philippines. Several groups have been accused of having links with Al-Qaeda and several have links with other movements in the region.

Jemaah Islamiah (JI) was founded in the mid-1990s and has the grand aim of establishing an independent Islamic state encompassing Indonesia, Malaysia and the southern islands of the Philippines. Intelligence officials (notably from Singapore) have investigated the group since it came to wide attention in January 2002. JI has also been implicated in a number of bombings including those in Manila in December 2000. JI is alleged to be led by a radical Indonesian cleric, Abu Bakar Bashir, who runs a Muslim boarding school in Solo, central Java (Bashir, also sometimes described as the movement’s ‘spiritual leader’, has denied in recent interviews a connection with JI). The plot to stage bombings in Singapore was allegedly organised by a deputy to Bashir, Riduan Isamuddin, also known as Hambali (whose current location is unknown). JI is thought to be associated with other groups including the Kumpulan Mujahideen Malaysia (KMM). Singapore has alleged that JI received some funding from Al Qaeda over three years. Singapore officials have also claimed that Hambali has been seeking to coordinate the activities of JI with Muslim radicals in Thailand and separatists in the southern Philippines, especially the Moro Islamic Liberation Front (MILF) into an alliance called Rabatitul Mujaihidin.

Laskar Jihad (LJ) was established as the paramilitary wing of Forum Komunikasi Ahlus Sunnah wal Jammah (Communications Forum of the Followers of the Sunnah), established in Jogjakarta in early 1998. The LJ was formed on 30 January 2000 in response to religious violence in Maluku. The LJ arranged for military training to be given to volunteers at a camp in Bogor, near Jakarta. The LJ sent several thousand fighters to Maluku in the months after April 2000. The Brussels based non-governmental organisation the International Crisis Group has stated that ‘The conclusion is unavoidable that the LJ received the backing of elements in the military and the police. It was obviously military officers who provided them with military training and neither the military nor the police made any serious effort to carry out the President’s order preventing them from going to Maluku’. LJ claims a three- part mission – social work, Muslim education and a ‘security mission’ – and it has had over 10,000 members, some of whom have been active in eastern Indonesia in communal violence. Laskar Jihad has gained support from Indonesia’s armed forces (TNI) and has also been able to embezzle money from the military (over US$ 9 million). Its founder claims to have rejected approaches from Al-Qaeda but supported the September 11 attacks in the US. In mid-October, Laskar Jihad announced that it had been disbanded but the veracity of this claim has yet to be determined decisively.

The Front Pembela Islam (Islamic Defenders Front–FPI) is another Indonesian radical Islamic group. The FPI was formed in August 1998 and now claims branches in 22 provinces. Based in Jakarta, the FPI is led by Habib Muhammad Riziek Syihab, a religious teacher who was educated in Saudi Arabia. Like Habib, many of the top FPI leaders have Arab blood. The FPI’s stated goal is the full implementation of Islamic Sharia law, although it supports Indonesia’s present constitution and avoids calling for an Islamic state. The FPI has a paramilitary wing called Laskar Pembela Islam and is well known for organising raids on bars, massage parlours and gaming halls. The FPI justifies these raids on the grounds that the police are unable to uphold laws on gambling and prostitution. Sceptical observers suspect that the police turn a blind eye to, or are complicit in, these activities, knowing that the victims will be encouraged to maintain protection monies to the police. The FPI in late 2001 took the lead in threatening to sweep Americans out of Indonesia because of the US operations in Afghanistan, although the threat was not in fact carried out.

A coordinated attack on 14 January 2016 by four Indonesian militants in the Thamrin area of Jakarta sent waves of alarm in the Indonesian capital city with ripple effects felt in the Southeast Asian region. Claiming responsibility for the attack, the so-called Islamic State (IS) released a statement titled “Islamic State Special Operation Targets Gathering of Crusader Coalition Citizens in Jakarta” through its news agency – Amaq News via the Telegram messaging app. According to the statement, the attack was conducted by the junud khilafah or soldiers of the caliphate. The four operatives, who were killed during the attack, represent part of the IS network in Indonesia.

Unlike the hierarchical nature of the groups that had dominated the Indonesian terrorism landscape in the past such as the Al Qaeda linked Jemaah Islamiyah (JI), the present alliance of a loose network of operatives is in a better tactical position to hide its activities. The challenge of self-radicalised individuals, lone wolves and sleeper cells threatens the management of the security of the regional landscape in Asia as IS aspires to target urban city centres.

The asymmetric threat posed by terrorist organisations is never static. The evolution of the groups in Indonesia poses a challenge to security officials as Indonesia and Southeast Asia brace themselves for the strategic challenge of urban terrorism in the future.

Abu Sayyaf (Bearer of the Sword) is an outgrowth of the long-term struggle for autonomy in the southern Philippines, is opposed to any accommodation with the Christians and believes that violent action is the only solution. Abu Sayyaf has mounted terror and criminal attacks since 1991 and directed a wave of such attacks against Christian civilians in 1993. Its founder Abdurajak Janjalani was a veteran of the Afghanistan conflict who had brought back with him enthusiastic followers of radical Islamic ideology. It has strong Al-Qaeda links – Osama bin Laden is reported to have sent the Pakistani terrorist Ramzi Yousef (who attacked the World Trade Centre in 1993) for training with Abu Sayyaf and Al Qaeda has given financial assistance. Abu Sayyaf has also gained extensive revenue from kidnapping – including a $25 million payment from Libya to free hostages in March 2000. The group has recently suffered from serious internal divisions and its factions. The main faction is led by Radulon Sahiron. The interests of the group have evolved to appear primarily criminal.

The Moro Islamic Liberation Front (MILF) has disclaimed connections with Al-Qaeda but hundreds of its members are reported to have trained with Al-Qaeda in Afghanistan. MILF split from the Moro National Liberation Front (MNLF), which had led a struggle for autonomy for Muslim areas of the southern Philippines from 1972. The MNLF suffered a series of setbacks in the 1990s, with a number of leaders either defecting to the government or joining MILF. MILF is led by Hashim Salamat who was educated at Cairo’s Al-Azhar University. MILF’s eventual aim is an independent Moro Muslim state and by the 1990s it had become the primary Moro rebel movement. The movement has been able to gain funds from sympathetic Islamic organisations abroad, including in Malaysia, Pakistan and the Middle East. It has had up to 35,000 members and has trained members of other groups, including JI. Major problems confront the goal of an Islamic Moro state, not least the fact that long-term immigration into the southern Philippines means that non-Muslims outnumber Muslims in most provinces of Mindanao.

The New People’s Army (NPA) was declared to be a terrorist organisation by the US government in August 2002 but it is a different kind of group from those discussed above. The NPA is the military wing of the Communist Party of the Philippines (CPP) and is a further Philippines radical group. Although primarily a rural based group, the NPA has an active urban infrastructure to conduct terrorism and uses city-based assassination squads. The NPA derives most of its funds from contributions by supporters in the Philippines, Europe and elsewhere and from ‘revolutionary taxes’ levied on businesses. The NPA opposes any US military presence and reports in 2001 suggest that it seeks to target U.S. personnel – its strength is estimated at over 10,000.

A new fervour has since been reignited both globally and in the region with the announcement of the self-styled Islamic State (IS) on 29 June 2014. Given its territorial losses, IS has steadily positioned itself to increase guerrilla tactics and capitalise on the cyber domain. The group’s influence, continued appeal and residual territorial aspirations will continue to overwhelm the security and intelligence communities around the world. The threat of terrorism, looks poised to continue.

In its current form, the IS militant group has a hybrid structure comprising both a centralised command and a diffused global network. Their followers who call themselves junud khalifa or soldiers of the caliphate are a good example of organised chaos. The soldiers of the caliphate include lone wolves, homegrown terrorists, small cells and diffused network structures. Radicalised by charismatic individuals or slick online propaganda under the shadows of encrypted messaging platforms, compared to a formally organised network, this loose collection of operatives is in a better tactical position to hide their activities and can be far more effective.

This intensifies the challenge posed by foreign fighter returnees with the collapse of the IS bases in both Mosul and its self-proclaimed capital in Raqqa. Involving not just those who have fought and lost in the Islamic States’ militant battles but also deportees who were turned away from countries bordering Iraq and Syria, these returning fighters may be gunning for a fight, having been unsuccessful in their bid to contribute to Islamic State. Worse, these might not just be nationals returning to Southeast Asia but experienced foreign terrorists with the ability to wreak all sorts of havoc. It would be inaccurate to assume that foreign fighter returnees would only return to their countries of origin. Many come from nationalities outside Asia. In the most recent siege in Marawi, among those killed were Chechen, Yemeni and Saudi nationals. The siege in Marawi suggests foreign involvement in the militants' consolidation and planning efforts, and reinforced the intent of creating a regional base in the Philippines.

Given its seriousness and sustain presence, in many circles, terrorism while having been considered a non-traditional security threat in the past has edged its way towards what most states deem as a traditional threat. The military, police and security organisations are being trained to effectively mitigate this threat on the state, the region and the international system as a whole. Today, faster than before, the role of the military forces is changing from fighting conventional wars to both fighting unconventional wars and to an extent supporting other branches of government manage and reduce unconventional threats. To a considerable extent, the role of technology has helped level the playing field.

Activity 3.3

Reflect

Reflect on the shifting trends in Terrorism in Southeast Asia.

1 Justin Ong, Singapore to enforce death penalty for nuclear terrorism acts, 8 May 2017, Channel News Asia Online Edition, https://www.channelnewsasia.com/news/singapore/singapore-to-enforce-death-penalty-for-nuclear-terrorism-acts-8827782
2 Lizzie Dearden, Terror laws should be scrapped, says Government's independent reviewer of terrorism legislation, Independent, 19 August 2017, https://www.independent.co.uk/news/uk/home-news/terror-laws-uk-offences-abolish-max-hill-interview-independent-reviewer-legislation-isis-attack-a7883836.html
3 Ibid
4 Kuhn, Kenneth, “Small Unmanned Aerial System Certification and Traffic Management Systems”. Santa Monica, CA:RAND Corporation, 2017 https://www.rand.org/pubs/perspectives/PE269.html
5 Adrian Lim, Five Power Defence Arrangements remain relevant to deal with today's security threats, The Straits Times, 2 June 2017, https://www.straitstimes.com/singapore/five-power-defence-arrangements-remain-relevant-to-deal-with-todays-security-threats