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The ACIJLP's Commentary
on The Arab Agreement Against Terrorism

Agreement Protects the Security of Arab Governments
and Threatens the Security of Citizens and Political Oppositionists

The Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP) followed with great concern the signing by Arab ministers of interior and justice of the Arab Agreement Against Terrorism (henceforth, the Agreement) on 22 April 1998, at the headquarters of the General Secretariat of the Arab League, during the exceptional session of Arab ministers of interior and justice. The Agreement included the expansion of cooperation between Arab security apparatuses in order to besiege what it called "the phenomenon of terrorism." This was asserted by most Arab ministers of interior following the signing of the Agreement. And according to the preamble of the Agreement, it aims at "confronting terrorist crimes threatening the security and stability of the Arab nation, and constituting a danger on its vital interests" .

The ACIJLP considers that the Agreement has unjustifiably expanded the notion of terrorist crimes, and that it constitutes a threat to Arab citizens' rights to freedom and personal security through its expansion of the rights of Arab governments regarding the preventive custody of citizens of Arab countries signing the Agreement.

The following is a summary of the ACIJLP's commentary and remarks on the text of the Agreement.

First: Unjustifiable Expansion of the Definition of Terrorism (Article one, Paragraphs 2 and 3) :

  1. The definition of "terrorism" on paragraphs 2 and 3 of Article One of the Agreement is too broad and loose; it considers as terrorist "any act of violence or threat to use it, regardless of its causes and motives taking place in implementation of an individual or collective criminal project, and aiming at terrifying people, harming them, or exposing their lives, freedom or security to danger".

It is clear that this loose definition is wide enough to include all cases of violence or the threat to use it, from simple fights between citizens, through what is currently described in Egypt as thuggery, and up to terrorism aiming at exposing society's integrity to danger. This is clear from the expression "regardless of its causes and motives".

The Agreement has even expanded the definition of terrorism beyond its definition in some internal legislations in states signing it. One example is Egypt in which law 97 of 1992 - an addition to the Penal Code - defines terrorism as : "Every use of force, violence, threatening, or terrification, resorted to by the culprit in implementation of a collective or individual criminal project, aiming at disrupting the public order or exposing Society's integrity and security to danger; and resulting in : harming individuals, terrifying them or exposing their lives, freedom or security to danger; damaging the environment; damaging means of communication or transportation, money, buildings, public or private belongings, or occupying them; prohibiting or constraining the work of public authorities, worship places or academic institutes; or obstructing the application of the Constitution, laws or regulations."

The definition of terrorism in the agreement is much broader than its counterpart in this law, despite the various criticisms directed at the latter in Egypt.

  1. The definition of a terrorist crime is - unfortunately - not better than that of the definition of terrorism. The former is defined as "any crime or attempt at a crime committed in implementation of a terrorist motive in any of the contractor states". This means that every terrorist act in the former paragraph is considered a terrorist crime. There is thus nearly no difference between the definition of terrorism and that of a terrorist crime - except that the latter is an application of the former.

At the same time, this paragraph equated in its description of a crime between the act and the attempt, something possibly enabling the governments signing this Agreement to attack their political opponents' freedom by accusing them of attempting at terrorist crimes, an accusation not requiring any acts to support it; these governments' task of harming their opponents through such accusations is thus being facilitated.

Second: The Agreement Negates Freedom of Opinion and Expression, and Peaceful Democratic Opposition under the Pretext of Terrorism (Art. Two, Parag. B):

Paragraph (b) of Article Two stipulates that "none of the terrorist crimes referred to in the previous article is to be considered a political crime. And in the application of this Agreement, the following crimes are not to be considered political crimes, even if they have political motivations:

  1. Assaults on the kings and presidents of the contractor states, as well as their wives or relatives.
  2. Assaults on heir apparents, vice - presidents, prime ministers or ministers in any of the contractor states…"

The ACIJLP considers that this formulation constitutes a serious danger threatening the security of Arab citizens, and specially opinion holders, journalists, political oppositionists, people concerned with public work and those active in parties, unions, and civil society institutions. According to this paragraph, the mere expression of opinion, objection or critique of some actions, positions or opinions of heads of states or their relatives might be considered an assault.

The lack in the Agreement of any definition of "assault" permits considering any act, saying, signal or even insinuation to be a (terrorist) crime of assault. This does not only threaten the right of Arab citizens to freedom of opinion and expression, but also clearly constitutes a threat to all political oppositionists, party activists, and people involved in democratic political work in the states signing the Agreement.

Third: The Agreement Threatens the Right of Arab citizens to Freedom and Personal Security (Articles 25-27):

  1. Article 25/1 of the Agreement allows the judicial authorities in a contractor state to request from another contractor state - through any written means of communication - to hold in preventive custody a certain person until the arrival of the extradition request.

The ACIJLP thinks that this formulation is a direct threat to the freedom of Arab citizens, as it doesn't require the attachment of any investigations or photocopies of any judicial orders or causes to such an expeditious request to hold a citizen in preventive custody. The mere reception of a written form (fax, telex or e-mail) is sufficient to imprison any citizen.

Article 25/2 also stipulates that in this case, the state receiving the preventive custody request can hold the requested person in preventive custody for 30 days; if the extradition request, accompanied by the necessary documents referred to in the previous article, was not presented, it is impermissible to imprison the requested person for more than 30 days.

This means that this illegal preventive custody - based merely on a written note rather than a judicial warrant - can last for a whole month.

  1. And despite that Article 25 specifies the maximum period of holding a person in preventive custody to be 30 days, stipulating the necessity of releasing the person at the end of this period if the extradition request was not presented or not accompanied by the necessary documents, Article 27 extends the period of preventive custody to 60 days without an accepted justification.
  2. Article 27/3 stipulates that : "Release does not prevent re-arresting the person and extraditing him, if the extradition request was received later."

The ACIJLP estimates that this formulation allows the repetition of periods of preventive custody for Arab citizens (60 new days) following the arrival of the extradition request of a person who has been released for not receiving the necessary documents, under the pretext that the latter have arrived, eventhough it remains possible that the new request may be lacking these (claimed) documents.

All this opens the door for Arab governments signing the Agreement to harass their political opponents by using preventive custody for long periods as virtual detention.

Fourth: The Agreement Attacks the Judicial Authority and Nullifies Many Guaranties for Citizens (Article 31/3) :

Article 31/3 stipulates that "it is possible to direct the judicial delegation request directly from the judicial bodies, to the competent body in the requested state; and the replies can be sent directly through the latter body."

The ACIJLP considers that, to begin with, there is a clear contradiction between Articles 11 and 31 dealing with delegation between the contractor states within the territory of a state in which a terrorist act takes place. This contradiction relates to some important procedures of primary investigation effecting the freedom of citizens, such as seizure of letters, search and arrest.

Article 11 requires the implementation of the delegation request in accordance with the internal law of the requested state, while Article 31 allows the state requesting delegation to transcend the internal law (which requires the issuing of the judicial delegation request from the locally competent judicial body) by granting it the right to address directly the administrative body, on even several administrative bodies in the requested state, in accordance with the judgment of the judicial body of the requesting state. This signifies overriding the standards of work of judicial and executive bodies in the states signing the Agreement.

The ACIJLP asserts that this formulation enables ministries of justice in states signing the Agreement to address directly ministries of interior in other Arab states for instance, thus overriding the competent judicial bodies. This constitutes on assault on the competent judicial authorities in the requested states, as well as on the safeguards of those persons requested for extradition or for the implementation of certain measures against them. These safeguards entail that such measures can only be undertaken through the competent judicial bodies.

We can also add that this contradicts most Arab constitutions which assert that it is inadmissible: to violate the personal freedom of citizens through arrest, search, imprisonment or constraining freedom in any way except through a grounded order of a competent judicial body; or to violate the sanctity of the private life of those citizens through confiscating or scrutinizing their mail, phone calls or any other means of communication except through a grounded judicial order and for a limited period. Examples for that are Articles 41, 44 and 45 of the Egyptian Constitution, Article 30 of the Constitution of Kuwait Article 19 of the Constitution of Bahrain, Article 7 of the Constitution of Jordan, article 8 of the Constitution of Lebanon, Article 32 of the Constitution of Yemen, and Article 25 (a) of the Syrian Constitution.

In addition, the above mentioned formulation constitutes a clear retreat from the text of Article 31/1 of the Agreement requiring that the judicial delegation request be directed from the ministry of justice of the requesting state to the ministry of justice of the requested state, and that the reply takes the same route.

Finally, the above mentioned formulation of that paragraph in Article 31 of the Agreement raises the suspicion of the direct use, by ministries of justice in the requesting states, of the executive bodies of other Arab states in the harassment of political opponents and oppositionists, abundant in Arab states.

At the end, the ACIJLP is expressing its serious worries regarding the formulation of those texts in such a way, and their practical application. One factor amplifying the ACIJLP's worries is that those texts are the product of ten years of common Arab action by Arab ministers of interior and justice. We thus have to rule out that the loose and unspecific formulations are the result of shortcomings of discussions and deliberations. Instead we have to assume that the texts were intentionally formulated and confirmed in this way in order to use them in the protection of the security of the governments of the Arab states signing the Agreement.

Human Rights in the Middle East and North Africa

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