Are You A Terrorist?

terrorist

There has been quite a bit of chat on social media sites about the proposed amendments to the Terrorism Act (full title: Criminal Justice (Terrorist Offences) Act No.2 of 2005). The chat is along the lines of some people claiming that this legislation is an Orwellian attempt to prosecute objectors who refuse to pay their Property Tax and more recently, who refuse to have water meters installed and/or pay for the water they use.
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Please note that this is not legal advice, particularly as I am not a criminal lawyer by profession. It is something I am interested in exploring, and you are more than welcome to come along for the ride. If not, jump off now.
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A bit of background: The Criminal Justice (Terrorist Offences) Act 2005 was enacted to give effect to the Framework Decision on Combating Terrorism which was adopted by the Council of the European Union on June 13, 2002. Because of the Troubles, the State already has a considerable framework of anti-terrorist type legislation in place—the Offences against the State Acts 1939–1998, the Criminal Law Act 1976, as well as many other pieces of legislation. All of those were domestic in their focus, whereas the 2005 Act, by way of contrast, has an international focus.
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Rather than giving effect to the Framework Decision through the enactment of a stand-alone piece of legislation, as the UK has done, Ireland chose to enmesh the 2005 Act with already existing Acts like the Criminal Justice Act 1994 and also the Offences against the State Acts 1939–1998. It all gets very confusing, which is why the modern terrorist is well advised to have a good lawyer on standby – ‘a Sig Sauer and a Silk, if you please, my good man’.
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The Council Framework Decision (EU) was recently amended to create three new offences of:
1. Public provocation to commit a terrorist offence;
2. Recruitment for terrorism;
3. Training for terrorism.

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The proposed amendment of the 2005 Act wants to bring these three new offences into Irish law.

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So far so good.
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So where does Property Tax and Water Levies come into it? Well, the argument that is going around is that if one recruits a person into an organisation which is encouraging the non-payment of taxes or levies, this will fall afoul of the new recruiting offence. So let us take a look at that specific offence.
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The 2005 Act is amended by the insertion of the following section after section 4A:

“4B. For the purposes of this Part, recruitment for terrorism means—
(a) the intentional recruitment of another person—
(i) to commit, or participate in the commission of, a terrorist activity,
(ii) to commit an act in or outside the State that, if committed in the State, would constitute an offence under section 6 of the Act of 1998, or
(iii) to commit an act in or outside the State that, if committed in the State, would constitute an offence under section 21 or 21A of the Act of 1939,
or
(b) the intentional commission of an act in or outside the State that, if committed in the State, would constitute an offence under section 3 of the Criminal Law Act 1976.”.

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It really all comes down to what is meant by “terrorist activity”. Can calling for a boycott of water meters, or calling for non-payment of Property Tax or the Water Levy constitute a ‘terrorist activity’? I don’t think so.
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The 2005 Act defines ‘terrorist activity’ as follows:

““terrorist activity” means an act that is committed in or outside the State and that—
(a) if committed in the State, would constitute an offence specified in Part 1 of Schedule 2, and (b) is committed with the intention of—
(i) seriously intimidating a population,
(ii) unduly compelling a government or an international organisation to perform or abstain from performing an act, or
(iii) seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a state or an international organisation.”

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The words used here clearly envisage political activity that falls outside the limits of what is largely recognised in the free world as legitimate, i.e. peaceful protests, orderly marches, boycotts; petitions; lobbying; broadcasting; writing; etc. In other words, ‘terrorist activity’ would not include the property tax boycotts and water meter protests. On the other hand, ‘terrorist activity’ might include violent protest; threats of violence to persons or property or the bearing, brandishing or using dangerous weapons, for example, if the intention was (i), (ii) or (iii) of the above definition.
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The definition of ‘terrorist activity’ also includes the offences listed in Part 1 of Schedule 2 of the 2005 Act. So what does Part 1 of Schedule 2 include?

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It includes pretty much every crime you might think of, including the common law offences of murder, manslaughter and rape, and statutory offences of assault including syringe attacks and poisoning. It includes specific crimes like false imprisonment, hostage taking and torture. It includes sexual offences, criminal damage offences, offences on aircraft and vehicles, explosives offences, firearm and other weapons offences (including chemical and nuclear weapons) and so on.
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Does this mean that if you commit any of these offences you are a terrorist? No, of course not, it means that if you commit any of these just because you wanted to commit them, you are a criminal and nothing more.
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It also means that it you commit any of these offences with the intention of “seriously intimidating a population” or “unduly compelling a government” or “seriously destabilising or destroying the … structures of a state”, then you are a terrorist.

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That is an important difference. It is not so much what (illegal activity) you do, but rather why you are doing it, that makes you a terrorist as opposed to a common criminal.
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By the same token, if you are engaging in legitimate political protest in order to obtain a legitimate aim or objective, you are not a terrorist (nor, hopefully, a common criminal).
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And don’t let anyone tell you otherwise.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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6 Responses to Are You A Terrorist?

  1. Willem Els says:

    So in other words if someone, such as a city council, messes up by not going the proper route in approving new developments etc and a member of the public thus takes it on him or herself to blow something up because of councils ignorance in the matter of their development, the council is therefore guilty of promoting terrorism?

  2. willemels666 says:

    Can Governments be accused of terrorism or found guilty thereof?

    • This is not my area so I cannot give you a full answer on that but I think the UN has in the past passed a Resolution to that effect. Domestic laws obviously apply to citizens, or groups within the border/national boundaries.

  3. David says:

    What about the references to “unlawful organisations” and that “unlawful” activities extend to promotion of non-payment of taxes?

    • I looked for that. I saw the reference to s21 of the 1939 Act which refers to unlawful organisations, but again it would need to be linked to ‘terrorist activity’. Where did you find the ‘unlawful activities’ definition? It wasn’t in s21. Section 21 has only been used against the IRA and the decision was made not because they challenged the legitimacy of the government of the day but because they engaged in acts of violence. Again, I cannot accept that a court would allow it to be used against an organisation that advocated a boycott of water meters! Have a look at the discussion on Section 21 in http://www.justice.ie/en/JELR/hederman%20report.pdf/Files/hederman%20report.pdf

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