The September 11 catastrophe, the invasion of the United States in Iraq and Afghanistan, the offensive attacks by Israeli Defence Forces on the Gaza strip and Lebanon, the bloody massacre of innocent civilians in the Southern Thailand, the recent atrocities in Ceylon ended with the death of the Liberation Tigers of Tamil Eelam’s (LTTE) leader, Velupillai Prabhakaran, bombings in Pakistan and India, bombings at the JW Marriott and Ritz-Carlton Hotels in Jakarta, Indonesia and Colombian Civil War, are some instances, which relate to the Anti-terrorism and Humanitarian Law.
These catastrophes also have indeed tested the functions and roles of the rule of law, particularly in regard to the Anti-terrorism and Humanitarian laws, consisting of the international and domestic laws.
Indeed issues and challenges emanating from anti terrorism and humanitarian laws are still plaguing the worldwide governments. In Malaysia for example, in the earlier days of its formation, the people in Malaya (the then name for Peninsular Malaysia or the Malay States) and East Malaysia (Sabah and Sarawak) were facing grave challenges, i.e the communist subversive insurgent movements. In the result, many people lost life and a lot of money and facilities have been provided by the government to combat this illegal movement.
The unsettled issues and challenges relating to anti-terrorism and humanitarian law, have again questioned the relevancy and the efficacy of the modern international anti-terrorism and humanitarian laws, for example the Law of The Hague, referred as the law of war proper and the Law of Geneva or humanitarian law. Likewise are the domestic laws intending to curb terrorism such as the Internal Security Act of Malaysia (ISA), Malaysian Penal Code, UK Terrorism Act 2000, UK Prevention of Violence Act 1939, USA PATRIOT Act, Australian Anti-terrorism Act 2004, Belgium Anti-Terrorism Act 2003, Canadian Anti-Terrorism Act 2001, Indian Prevention of Terrorist Activities Act, and the New Zealand’s Terrorism Suppression Act 2002.
As we have witnessed, for instance, in the invasion on Gaza, Palestine recently it seems the war between two rivals, the Israel Defence Forces (IDF) and on the other hand the combatant HAMAS, did not spare any iota of mercy over the helpless quarters consisting of the Gazan Palestinian women, children, and the elderly people. Even doctors, ambulance, paramedical staff and medical facilities were killed and destroyed, in contravention with the Geneva Convention. There is no protection against their safety and security. In fact they represented the majority victims, as reported by the media. The thrown bombs and the triggered bullets could not differentiate between the combatants and the helpless civilians, especially women, children, and the elderly people. Thus, it is not exaggeratedly to say that even of late, the law of the jungle and the policy of ‘who is might is right’ still prevail and matter.
A question to ponder: How could we formulate the international laws and the domestic laws relating to anti-terrorism which can ‘balance’ the conflicting and diverse interests such as the need to punish terrorists and their terrorism acts and, on the other hand, the necessity to observe the human rights and civil liberty concepts as well as democratic values propounded by the international laws, conventions and the domestic laws? The anti-terrorism laws should be effective yet at the same time, it must also observe the human rights and civil liberty rights. The harshness and arbitrariness of the current anti-terrorism law practices by many parts of the world includes prolonged and incommunicado detention without judicial review or detention without trial served as preventive detention; risk of subjecting to torture during the transfer, return and extradition of people between or within countries, and the adoption of security measures that restrain the rights or freedoms of citizens and breach principles of non-discrimination. This harshness must be balanced with humanitarian values, i.e the humanitarian laws, principles of human rights and democratic process.
Should these laws, the current law of war proper and humanitarian concepts, consisting of the international law and domestic laws, be thrown into the rubbish bin for they seems are yet fully capable of protecting the fundamental human rights of the people at large at the expense of combating terrorism? Or should the laws viz the anti-terrorism laws and humanitarian laws be effectively revamped to meet the contemporary needs and necessities and above all to remain relevant and suitable at all time? Alternatively, should we have a monitoring and supervisory body who can ensure that the rule of law as propounded under the humanitarian laws are observed by the affected countries in facing the challenges of terrorisms? Should this body be given a power and authority to enforce humanitarian laws?