Fine Line Between State Security and Human Rights
When the war on terror began in Southeast Asia, there was considerable – and justifiable – concern about the effect that this would have on human rights. Intelligence and security services in the region are politicized and have traditionally focused their resources on domestic opposition. Human rights activists saw the war on terror as being the cover these states needed to round up a large number of dissidents and political opponents, all in the name of fighting Islam.
Those fears have not come true, but two recent events – Indonesia's expulsion of Sidney Jones, a respected analyst with the International Crisis Group, and the Thai military's April crackdown that left more than 100 people dead in Southern Thailand – are evidence that the region has a way to go to effectively fight terrorism without trampling underfoot human rights.
States have shown uncharacteristic restraints
To their credit, states in the region have shown uncharacteristic restraint. Since October 2001, there have only been 250 arrests of terrorist suspects across the region; far less than in Europe. But the threat of terrorism in the region is real.
While it is hyperbole to call Southeast Asia the "Second Front" in the war on terror, Al Qaeda's regional affiliate, Jemaah Islamiya, has executed several devastating terrorist attacks in Indonesia, and has attempted attacks in Singapore, Malaysia and Thailand. The two attacks in Indonesia took approximately 1 percent of GDP from the country's economy. And although much of its leadership has been arrested, JI is still able to attack soft targets, and it continues to recruit new members.
One cause for terrorism is lack of democratization
But governments need to be cognizant that one of the key causes of terrorism is coercive policies and the lack of democratization. Using the war on terror to arrest and imprison bona fide political opponents and repressing Muslim communities only serves to drive radicals deeper underground. As a Malaysian JI member quipped, "We stopped believing in the democratic process. So we felt that jihad was the only way to change the government."
Despite some moderation, there are a number of laws and reforms that the governments in the region could reform.
First, Malaysia and Singapore continue to use their respective Internal Security Acts. While both states have review boards to oversee the ISA detainees, they rarely go against the state. For decades the ISA was used against not just militants, but against bona fide political opponents who threatened the regimes' monopoly of power.
Indefinite detention without trial is politically foolish and morally wrong. One can only assume that the states fear that trials would give the militants a public forum. Yet this logic is counter-productive. Politically, the ISA plays into the hands of the opposition, who sees the ISA as a tool for political repression. They will continue to protest these politically motivated "illegal detentions," and they will have the moral authority to do so.
By giving terrorist suspects a free and fair trial, the governments could win the support of the majority of the population while neutralizing the allegations of their political rivals.
Arrest without sentence makes no sense
This is not to say that states should not have certain investigative tools. There is a limited period of time in which detainees can provide operational intelligence, but the usefulness of their knowledge diminishes over time. Terrorist cells are highly compartmentalized, and they try to take appropriate counter measures when their members are arrested. There is no reason why states cannot go back and interrogate these suspects once they have been sentenced.
Thus, there needs to be a balance in which states have a fixed period to detain people and build up a case against them, if they do not, then these people must be released.
Transparency must be part of state policy
Because fighting terrorism is based on intelligence and police work, it is truly a war "in the shadows." Yet the lack of government transparency is counterproductive if people feel that their governments are acting with impunity and without any judicial or media oversight.
The Singapore Government deserves credit for publishing its White Paper on the Jemaah Islamiyah cell, but it has been the exception, rather than the rule. Malaysia, in particular, has been a veritable black hole of information. Indonesia's expulsion of Sidney Jones threatens all NGOs and research institutes.
Third, there has been a rapid push by states to enact counter-terrorism legislation. The Indonesian parliament, which had eliminated Soeharto-era security legislation, was in the process of enacting a counter-terrorism law when the Balinese nightclubs were bombed. Shortly thereafter, the legislation passed – over the opposition of many human rights activists.
Building body of evidence helps fight terrorism
Indonesian security officials continue to complain publicly that they do not have an internal security act, which would allow them to detain terrorism suspects without trial for a fixed period of time. Yet, because Indonesian police had no such tool, it forced them to build up a significant body of evidence against suspects that would stand up in a court of law.
In the process, investigators were able to uncover more cells and get a far better understanding of the scope and modus operandi of the network.
Thailand, too, has recently passed counter-terror legislation, further eroding the democratic gains and press freedoms that Thaksin Shinawatra's regime has undermined.
Fourth, there needs to be substantial improvements in multilateral legal tools and frameworks for combating terrorism. ASEAN needs to establish formalized procedures for giving each other access to detained suspects, the right to interrogate them in a way that will stand in a court of law.
Likewise, there needs to be more bilateral extradition treaties in the region. ASEAN has considered drafting a multi-lateral extradition treaty, but it is still at least a decade in the making.
Fifth, human rights are directly affected by swings in US policy. In the 1990s, US policy in Southeast Asia was no longer dominated by security concerns, as it was during the Cold War, but by normative issues, such as democratization and human rights. The US attacked Malaysia's use of the ISA to detain former deputy prime minister Anwar Ibrahim. Now, US policy is once again solely focused on counter-terrorism.
US no longer attacks us of ISAs in Malaysia and Singapore
US Secretary of State Colin Powell reiterated at the ASEAN summit on August 1, 2002, that human rights would remain a key foreign policy objective in the region: "The United States feels strongly about these sorts of issues and believes that if we're really going to prevail over this plague on the face of mankind, then we have to do it in a way that respects human dignity. Human rights have to be protected."
But the US no longer attacks the use of the ISAs in Malaysia and Singapore, and the issue of Anwar Ibrahim is rarely raised in public.
The lack of attention on human rights by the Bush Administration, now so terribly wounded by the prisoner abuse scandals of Abu Ghraib, has had a negative effect on the human rights condition in the region. The utter loss of America's moral standing only compounds the situation. But the US cannot abdicate its role altogether.
There is a fine balance between security and human rights that can be achieved in Southeast Asia. States must understand that heavy-handed treatment of Muslim communities only drives moderates into the shadows and pushes radicals to take extra-legal means.
Greater government transparency, a commitment to the rule of law, and the codification of transnational rules and procedures would go a long way to achieving this balance.
Zachary Abuza
This article originally appeared on YaleGlobal, 15 June 2004
Zachary Abuza is Associate Professor of International Politics at Simmons College and author of "Militant Islam in Southeast Asia" (Lynne Rienner 2003). He is currently researching the Moro Islamic Liberation front for the Smith Richardson Foundation.