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Memorandum on Saudi Arabia’s Draft Law of Sanctions for Crimes of Terrorism and Its Financing of 2011


Questions arise as to whether Saudi Arabia's Draft Counterterrorism Law is seen as a setback for human rights

August 30, 2011
By Drew Barrows

Human Rights Watch is deeply concerned by the human rights implications of the draft Penal Law for Crimes of Terrorism and Its Financing of 2011 (the “draft counterterrorism law”). The flaws of the draft counterterrorism law can be summed up under the following categories, all of which in some way would seriously undermine the protection of human rights if implemented: problematic definitions of terrorism; broad restrictions on rights to freedom of speech, peaceful assembly, and association; excessive police and prosecutorial powers, infringing on the right to privacy; and intrusions on the independence of the courts and on the right to a fair trial.

We believe these flaws to be so serious – and ultimately so detrimental to the fundamental rights of all Saudis – that an entirely new law to address terrorist offenses be drafted and given consideration.

Vague and overbroad definitions of terrorism and terrorist acts

Article 1 of the draft law defines a terrorist crime as:

every criminal action described in this law, and anything that the offender perpetrates in word or deed in furtherance of an individual or collective project intended to disturb the public order of the state, or to shake the security of society, or the stability of the state, or to expose its national unity to danger, or to suspend the basic law of governance or some of its articles, or to insult the reputation of the state or its position, or to inflict damage upon one of its public utilities or its natural resources, or to threaten to carry out acts that lead to the named purposes.

Declaring the state as an unbeliever, and using the ways of declaration of unbelief that lead to the commission of a terrorist crime, or inciting to it, is part of the meaning of terrorist crime, as long as it is such as to generate the ideological and religious grounds to justify those crimes or to call for those ideas or to incite them or to publish articles and information that incites or may lead to the execution of terrorist activity.

The article goes on to define the crime of financing of terrorism:

Every action that includes gathering, giving, taking, or allocating funds, or transporting or transferring them or their returns [profits] to any terrorist activity, be it individual or collective, organized or unorganized, domestically or abroad, either by direct or indirect means, from a legal or illegal source, or to carry out any banking, currency, financial, or commercial transaction in the interest of this [terrorist] activity, or elements thereof, or to acquire, directly or through intermediaries, funds in order to use them in the interest of [such terrorist activity], or for calling for and propagating principles [of such terrorist activity] or for arranging training sites or housing for any elements of [such terrorist activity], or to supply [these elements] with any kind of weapons or falsified documents, or offering any other support or financing mechanisms.

This definition goes far beyond the internationally recognized elements of terrorist crimes as those crimes that are intended to, or constitute: intentional hostage taking; intentional causing death or serious bodily injury; using lethal or serious physical violence against one or more members of the general population; provided such action is intended to provoke a state of terror in the general public or compel the government or an international organization to do or abstain from doing something. Such actions, moreover, should already be defined as serious crimes in national law in all their elements.[1]

Only in the draft counterterrorism law’s extra-territorial application to persons committing acts outside the kingdom do these stricter conditions apply. For acts committed outside the kingdom to be considered terrorist, the draft law states that they would need to aim at:

a) changing the system of governance in the kingdom; b) suspending the basic rule of governance or some of its articles; c) compelling the state to commit an act or to abstain from it; d) causing damage to public property of the state abroad …; e) committing [terrorist] acts in the body of a means of transportation registered with the kingdom or carrying its flag; f) infringing upon the interests of the kingdom or its economy, national or social security.”

Some of these elements of the definition of the crimes of terrorism and their financing are exceedingly vague, such as “disturb[ing] public order,” “shak[ing] the security of society or the stability of the state,” or “infringing upon the interests of the kingdom.” Only protecting “public order” is recognized in international human rights law as a legitimate purpose for limiting certain other rights. The Siracusa Principles, drawn up by international legal experts in 1984, provide authoritative guidance to the permissible limitations to certain civil and political rights. This document defines “public order” as “the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded.”[2] State practices that violate human rights, such as Saudi Arabia’s denial of the rights to participate in public affairs, freedom of religion, and freedom of assembly, as well as its severe limits on other basic rights, such as freedom of association and expression, or systematic state and societal discrimination against women, cannot constitute a defensible understanding of “public order.”

Contrary to international guidelines, the draft counterterrorism law’s definition of terrorism makes no mention of the element of violence resulting in the death or serious bodily harm of the general population or individual persons, and even the narrower definition of acts committed abroad fails to require that the act involve violent means.

Overly vague language raises due process concerns in other provisions. Article 48 imposes half the penalty for a terrorist offense on any person “who knew of a project to carry out a terrorist crime or its financing and did not inform the concerned authorities despite being able to do so.” If the crime in question leads to kidnapping, murder, destruction, explosion or smuggling of weapons or explosives, the person who failed to inform faces the same penalty as the one for those crimes. Article 69 obliges guardians to inform the concerned security services within 72 hours if their sons “go missing,” without, however, imposing a penalty for failing to do so.

The draft counterterrorism law elsewhere includes other acts that bear no relation to terrorist acts. Article 29, for example, criminalizes “describing the king—or the crown prince—as an unbeliever, doubting his integrity, defaming his honesty, breaking the [oath of] loyalty [to him], or inciting such [acts].” Article 54 would criminalize “agreeing to a suicide operation” regardless of whether the suicide operation targeted or indiscriminately harmed civilians or in some other way constituted a terrorist act.

Unwarranted limits on speech, assembly, and association 

The overbroad definitions of terrorism have the effect of curtailing the rights to freedom of expression and other basic rights in cases with no connection to acts of terrorism. These rights are found in the Universal Declaration of Human Rights as interpreted internationally with respect to addressing the problem of terrorism.[3]

International human rights law allows restrictions on freedom of expression in cases where such expression is intended and likely to incite imminent violence.[4] The former UN special rapporteur on human rights and terrorism, Martin Scheinin, formulated the permissible restrictions of freedom of expression while countering terrorism to expression “that causes an objective danger of a terrorist offence being committed whether or not ‘expressly’ advocating a terrorist offence.” The term “causing an objective danger,” Scheinin writes, can “cover the situation of using coded language, but does not reduce the requirement to prove both a subjective intention to incite as well as an objective danger that a terrorist act will be committed.”[5]

Several other articles unduly restrict the right to freedom of expression under international law. This is in addition to the overbroad definition of terrorism in article 1 that would violate the right to freedom of expression by prohibiting:

insult[ing] the reputation of the state or its position … Declaring the state as an unbeliever, and using the ways of declaration of unbelief [if it] generate[s] the ideological and religious grounds to justify those [terrorist] crimes.

Article 29 criminalizes lese majeste(insulting the monarch), and article 30 criminalizes “issuing—in writing or orally—a declaration of unbelief or a declaration that leads to disrupting public order of the country or shaking its stability.” Article 51 criminalizes “publicly attacking any of the established principles of Islamic Shari’a, or the established principles of the legitimacy of the state, provided such [expression] may lead to shaking the stability [of the state] or to a terrorist crime.” Article 67 shields the Interior Ministry and judiciary from any outside public scrutiny by making it a criminal act to “[reveal] to any person any of the procedures in reports, inquiries, investigations, or trials … or revealing any evidence.”

A number of other articles infringe on free speech with overbroad and vaguely worded provisions and a tenuous link to acts of terrorism. For example, article 43 criminalizes setting up or publishing a website “to facilitate communicating with leaders or any member of terrorist organizations or to propagate their ideas”(there is no definition for what constitutes a terrorist group or organization). Article 44 criminalizes “publicly praising [or] propagating [in any form] a terrorist crime, or any topic intended to give political instructions to the kingdom, or any idea that infringes the national unity” even if the original action is lawful. The article further criminalizes possession of any media calling for or propagating a terrorist crime if intended to show to others.

The draft law also criminalizes certain forms of association and assembly in a manner that violates international human rights standards. For example, article 47 criminalizes “organizing a demonstration, participating in its organization, assisting, calling for, or inciting it,” without any reference to terrorist acts.[6] The same article also criminalizes raising “banners or pictures that infringe upon the country’s unity or its safety, or that call for sedition and division among individuals in society, or inciting such acts.”[7]

Article 52 would prohibit meetings with members of any terrorist organization if they “go against the country, its security, or to shake its stability or its religious positions, or to expose its international relations to harm.” On the face of it, this would, for instance, make a journalist liable for criminal indictment if he were to interview a person alleged to be a member of a terrorist organization and published an interview that prosecutors considered harming Saudi Arabia’s international relations.

The special rapporteur on human rights and counterterrorism noted “with concern the increase of infringements upon the exercise of the right to freedom of assembly and association in the name of counter-terrorism,” and stressed that these rights are fundamental in a democratic society and that “limitations must be narrowly construed as to their objective, i.e. counter-terrorism.”[8] He further stated that “It is only when the association engages in or calls for the use of deadly or otherwise serious violence against persons, i.e. the tactics of terrorism, that it may be characterized as a terrorist group and its rights or existence limited and possibly subjected to the application of criminal law.”[9] The broad scope of articles 47 and 52 fail to meet this test.

Human Rights Watch is deeply concerned by the human rights implications of the draft Penal Law for Crimes of Terrorism and Its Financing of 2011 (the “draft counterterrorism law”). The flaws of the draft counterterrorism law can be summed up under the following categories, all of which in some way would seriously undermine the protection of human rights if implemented: problematic definitions of terrorism; broad restrictions on rights to freedom of speech, peaceful assembly, and association; excessive police and prosecutorial powers, infringing on the right to privacy; and intrusions on the independence of the courts and on the right to a fair trial.

Article References
1]
See Model Definition of Terrorism in UN, Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin,“Ten areas of best practices in countering terrorism” (“Scheinin 2010 Report”), December 10, 2010, available athttp://www2.ohchr.org/english/issues/terrorism/rapporteur/srchr.htm (accessed July 25, 2011), Practice 7, p. 14.

[2]UN, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985). para. 31.

[3]Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

[4]The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, U.N. Doc. E/CN.4/1996/39 (1996), principles 6 and 2.

[5]See Scheinin 2010 Report, pp. 15-16.

[6]The Security Committee of the Shura Council, an appointed body with some legislative powers, suggested removing this article; their suggestions are not binding.

[7]The Security Committee of the Shura Council canceled this article.

[8]Special Rapporteur on the promotion and protection of human rights while countering terrorism, Martin Scheinin August 16, 2006, A/61/267, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/477/03/PDF/N0647703.pdf?OpenElement (accessed July 25, 2011), p.10.

[9]Ibid., p.11.

 
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