There can be few New Zealanders who have been following the news over the last few months, who do not know that there are persons out there, beyond our borders, who mean us ill. They have been variously described as ‘Islamic extremists’, ‘jihadists’, terrorists, ISIS militants, and, in the Middle East, they have been responsible for a positive tsunami of atrocity. Not only have they massacred captives on a large scale and engaged in public beheading of selected western journalists and humanitarian workers, they have made abundantly clear who their enemies are – and it is a long list. As we have seen, it includes (in the region) ethnic and religious groups who do not share their world view: ancient Christian communities, Turkmen, Kurds, Shiites, Jews, moderate Sunnis. For them, the offer is conform or die.
We may think we have some obligation to the protection of these persons. We are, after all, members of the United Nations (newly elected to the Security Council, indeed) and we are signatory to the 1948 Genocide Convention and to the statutes of the International Criminal Court. Even if we think we have no obligation of this kind, we need to notice that war has been declared on us anyway. We are infidels and as such we are an obstruction to their plan for a strict universal caliphate. Numerous spokespersons have made this plain. And they have made it quite clear what they intend to do in the furtherance of that aim. As they consolidate their local gains, they plan a world-wide campaign of terrorist atrocity.
Substantial evidence of this appeared in Australia a few weeks ago, about the time of our election.
In New Zealand, Prime Minister Key has announced a modest increase in the threat level in this context from ‘very low’ to ‘low’. This assessment is clearly based on what is known from the public domain, together with intelligence inputs from the same resources and methods as are available to the Australians. We are, after all, in the same ‘five-eyes’ cooperation agreement. Indeed, it is plausible to suggest that this underlines the value of that long-standing arrangement.
But the major point of the Key announcement was to indicate that there would be a need for enhanced surveillance of potential perpetrators of such atrocity and that this might need some alteration to the Terrorism Suppression Act. There is, particularly, a need to deal with the problem of New Zealand citizens travelling overseas to join Islamic extremist causes and, associated with this, to deal with possibility that they may return to New Zealand ‘radicalised’ and intent on committing terrorist acts here. Apart from recent Australian concerns, this possibility was manifestly actualised in London early last year, when a returning jihadist, Michael Adebolayo, killed a British soldier, returning to his barracks from leave. I wrote about this in these columns (Terrorism, Propaganda and War, June, 2013), when I alluded to some of the issues that the review of the relevant law in New Zealand will need to address.
An obvious solution to the problem of preventing New Zealand citizens from travelling to join up with Islamic extremists is to withdraw their passports. But there are number of problems with this, apart from the obvious objection in principle to any interference with the right to travel. As far as this latter is concerned, we might respond that a citizen’s right to travel does not extend to the right to travel to engage in murder. We might also note that in this case, New Zealand, with many other states, is committed to defending the victims of ISIS atrocity. A jihadist volunteer would thus be joining, in the context of war, an adversary party.. Withdrawing the passport of such a person would seem entirely appropriate, even if it had no effect on his present behaviour.
Mr Goff’s objection that an amended law might prevent New Zealand citizens from protecting ‘their own people against the oppression of al-Assad’ raises a different set of issues. In the way it is put, it raises separate issues from those that arose in the case of volunteers who went to Spain in the 1930s. We have a different view of those who went to support the government cause and those who supported the fascist insurrection of General Franco but in neither case was it matter of ‘my people’ but rather (insofar as it was entirely voluntary) my ‘political cause’. On the whole, there may be sound principles of public policy which would support the prevention by states of individual or private participation by its citizens in conflicts beyond its borders, on whatever grounds. There is some overlap here with international law regarding mercenary activity, although that, too, is notably incoherent. Drafting law here is going to be difficult, particularly if we factor in the possibility that an intending jihadist is likely to conceal his purpose, or actually complete a ‘conversion’ when he is already overseas.
The problem of the returning terrorist is altogether different. Here the central requirement is for ‘rules of engagement’ for our intelligence services, which permit the close surveillance of any persons who may be thought to present a risk. Where there are grounds to conclude that these individuals represent an imminent threat, there needs to be a provision for detention, pending further investigation. Persons who have associated with an adversary party, should expect no less. Similarly, returning citizens against whom there is evidence of crimes against humanity might expect to be tried here for those crimes. (The British citizen who was identified as the ‘executioner’ in the first internet beheadings, would be a case in point here.) On the other hand, it may be worthwhile providing the sort of re-education programme for returning jihadists that has been used for those who are rescued from religious cults.
The very recent case of the Canadian man who killed a soldier in an attack outside a Montreal Veterans Affairs office (in an incident similar to the Adebolayo attack in London, mentioned above), raises further issues that law reform proposals might need to consider. In this case the man concerned (Martin Rouleau) had not gone abroad (the authorities may have prevented this) and appears to have been largely ‘self-radicalised’ as a consequence of depression brought on by business failure. On the other hand, he was ‘known’ to the authorities and the threat he posed might be said to have been obvious.
In my earlier discussion of the Adebolayo case, I asked, so why was he free to commit the murder of Private Rigby? My answer from June last year may also be appropriate to the Montreal case: Was it an application of the old English Common Law principle that ‘every dog is allowed his first bite’ (otherwise he might be falsely condemned)? If that is the sentiment, understandable though it is, it might need to be examined. As always, there is a trade-off between the protection of the human rights of individuals and the security of society as a whole. That will mean that those who appear to have espoused a cause, which represents a threat, need to be carefully watched. If they are aliens, they need to be deported. If they are citizens they may need to be restrained. Certainly, they should not be treated on the basis that they are entitled to a ‘first bite’.
The seriousness of the dilemma here is only underlined by the even more recent second attack by an apparently self-radicalised Canadian; this time on the Canadian War Memorial and Parliament building in Ottawa. Again, the perpetrator was known to the authorities. In fact, it was announced that Canadian intelligence agencies had 90 such persons with apparently similar inclinations. But ‘we can’t follow all of them’.
Much of the comment on what the government is proposing has been to the effect that there needs to be consultation and parliamentary scrutiny. Insofar as this is about matters of law and administrative arrangements, this is entirely appropriate. These are difficult matters. But insofar as the issue is that of the methods and sources of intelligence services, this cannot be so. To talk about these things publicly is to prejudice them. In these cases, the public interest must continue to be represented by the office of the Inspector General of Security and Intelligence (augmented, if necessary). In this context, the Green Party suggestion that what is proposed ought to be discussed with Islamic leaders is rather naïve. The public record for these things suggests that mosques are notable centres of indoctrination and radical arousal.