Terrorist Threat: Australia's Response, The


THE TERRORIST THREAT:
AUSTRALIA'S RESPONSE

The Honorable Mr. Justice Desmond Keith Derrington*

On this subject, there is no such thing as the Australian response. We
have a full kaleidoscope of political and social opinions. There are some who
would contradict anything I say. The only sensible solution is to offer you the
thrust of views that are representative of a strong majority. Interestingly, they
are generally diverse in their political allegiances, or they are unaffiliated.

We are very well served with news and commentary from around the
world. The level of interest is high. Our modest status demands that we
remain aware of world opinion and issues. This helps us to be relatively
objective in our understanding of terrorism and its context.

The Australian view is fortified by painful experience. We cannot be
dismissed as detached armchair critics. America had its catharsis on
September 11, 2001. Australia had its own on October 12, 2002. Eighty-eight
young Australians died as the result of the terrorist attack at Bali. Our loss did
not match the World Trade Center tragedy in numbers, but to a country of
only 20 million, it was egregious enough.

It is necessary first to understand what is meant by terrorism. For
present purposes, it may be described as an attack on innocent civilian targets
for the purpose of furthering a political cause. It is not resistance to
illegitimate oppression by attacking military or governmental targets of the
oppressor - that is self-defense. The French Resistance is an example. This
is a difficult area when the attack on civilian targets is claimed to be the only
means by which this can be further achieved because of the strength of the
oppressor.

Secondly, the present discussion will be limited to the current major
threat, which excludes terror associated with separatist movements or
domestic uprisings, often involving more overt armed conflict as well. The
affairs in Northern Ireland, Palestine/Israel, Columbia, and Russia are
examples of such domestic uprisings. However, the following discussion may
have a certain relevance to those in part.

* The Honorable Mr. Justice Desmond Keith Derrington was appointed as Justice of

the Supreme Court of Queensland, Australia in 1982. He served until 2000. The Honorable Mr.
Justice Derrington received his Bachelor of Laws from the University of Queensland and was
admitted as Barrister-at-Law in 1954. He received his commission as Queen's Counsel in 1973.
He currently teaches law at his alma mater, the University of Queensland, Australia. The
Honorable Mr. Justice Derrington has published extensively on the law of liability insurance
and is a frequent guest speaker at national and international conferences. He was a Visiting
Fellow at Wolfson College, Cambridge in 1993 and a Visiting Scholar at Cornell University in
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IND. INT'L & COMP. L. REV.

In Australia, we were acutely aware of the American agony over the
World Trade Center bombing. Our reactions to those tragic events were -

" Very deep sympathy for the innocent victims and their families;
" Disgust at the inhumanity of the perpetrators;
* General concern at such a serious turn in the world's affairs;
* Understanding that the United States must respond appropriately,

but we hoped that it would be suitably thoughtful and restrained.
We participated in the war in Afghanistan as a clear case of self-
defense by the United States, but we became concerned with
certain aspects of the its conduct and its aftermath. Like the
English Court of Appeal, we have become particularly concerned
with the circumstances at Guantanamo Bay; and

* Objective and broad recognition that, despite its appalling nature,
such an attack was not simply the aberration of fanatical madmen.
There were serious causes that motivated them to sacrifice their
own lives, which won them the passionate support of many
people. It was accepted that nothing could justify such a grossly
inhumane act, but there was recognition of this larger picture.

For a rational and balanced response, it was essential to identify the
cause of such a dreadful crime that would also lead its perpetrators to certain
martyrdom. Any successful and practical solution demanded understanding
of the problem as it really was, and not as we would have liked to have it.
This was also necessary in order to give the solution legal validity, and to give
the legal solution any moral legitimacy.

It would be blind in reality to ignore the grievous plight of masses of
desperate people whose suffering is most cogent to this issue. We have
considerable evidence that their humanity has been so eroded by poverty,
oppression and hopelessness that they can see no other remedy. Their lives
are so wretched that, to them, death is no great loss.

The terrible numbers of Americans and Australians who died in these
attacks were insignificant when compared with the numbers of the poor and
powerless who die from want of nourishment or medical care, or from
oppression that has coincided with our interests. The United States Senate
Foreign Relations Committee recently heard that 24,000 people per day die
from starvation!

It would be self-indulgent to believe that the death of an American office
worker or an Australian tourist has a greater distress value for us than the
death of one of these from starvation or disease, or from violence by an
oppressive military regime, is to those who already have so little. However
we see ourselves, they see us as the wealthy and powerful ones who directly
or vicariously oppress them by economic and military force in order to
maintain our privilege. And their means of resistance are very limited.

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THE TERRORIST THREAT: AUSTRALIA'S RESPONSE

This is so destructive to their moral sense and humanity, that it might
inhibit their violence toward other innocent human beings. It is a fecund
breeding ground for fanaticism. As it often happens with vulnerable people,
fundamentalism then intrudes to offer a remedy, but only through hatred and
intolerance. It takes advantage of people in crisis, without hope.

The most serious problem is that in places where the need is greatest,
these victims often find that the fundamentalists are the only ones who offer
them hope and a form of resistance. If we connive at or assist in the
"removal" of their moderate leaders simply because they do not agree with us
or are inimical to our interests, we err, and we err badly. We are seen as
supporting those who have only added to their misery with torture and death.
This leaves them with only the fanatics to fight their cause.

In Australia, we have always been wary of people with a surfeit of
evangelical zeal - the defenders of mankind with the only answer. This
response is often attractive because it is "strong" (read "fanatical") and "clear"
(read "simplistic"). Their zeal often stems from excessive and warped
religious belief. They alone can identify absolute good and absolute evil, and
God is always on their side.

They demonize their opponents by drumming up hatred and public
support for their own extreme acts. They excite fear in their followers, and
any dissent is suppressed. They deny rational debate with catchcries, often
with a religious flavor to give it a semblance of respectability. Worst of all,
they are willing to destroy innocent lives in the name of righteousness. Due
to defects in our national character, we do not find this altogether attractive
or persuasive.

However, that is not the view of many of the dispossessed. Some
fanatics are not weak and powerless, and they are ultimately prepared to do
something. Though their atrocities are undoubtedly deplorable, they have
conscience of a kind. They leave their comfortable lives - they may even be
rich - and they willingly accept privation and death for a cause that they see
as just. They are not heroes, but those whose cause they die for see them as
heroes.

While the causes remain, there will always be many to replace them, no
matter how many are killed. How can they be deterred by fear if they are
already willing to martyr themselves?

It is sometimes suggested that this hatred is merely jealousy of the West
and its wealth. In some idiosyncratic cases, this may be true but to use it to
explain the general disaffection is self-delusion or propaganda of the worst
order. Belief in our own absolute perfection simply compounds the problem.

To add to the problem would be unconscionable. Without the sanction
of law that demands respect because it is just, any response that results in the
destruction and mutilation of many innocent people is surely
counterproductive. It would simply enlarge and justify the terrorist response.
"Collateral damage" is a terrible euphemism for such carnage, just as it would
be if it were applied to the victims of the World Trade Center or Bali.

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This does not predicate inaction. The suggestion that the alternative to
an excessive behavior is to 'do nothing is a base argument that ignores
alternative courses of action that avoid such terrible consequences. Certainly,
the perpetrators should be pursued and punished with the full force of the law,
and all proper preventative measures against further attack should be
employed. But the rule of law must not be broken or bent in the process.

It must be preserved in its letter and spirit. If law is observed and
exalted only when it does not matter, it is a sham. Its need becomes greatest
in times when it is under challenge or when there are strong sentiments of
revenge and fear. Then, it is wrong to assert that the laws should be
suspended or watered down to meet current convenience.

Such a proposition is worst when it comes from those who wield
ultimate power. With power, there is also responsibility. Without
responsibility, there is moral corruption. Some robustly aggressive people
would describe all this as weak. But J.K. Galbraith once spoke of the reckless
position as the position that requires the least moral courage. We must not be
the judges in our own cause. Adherence to the rule of law and adherence to
justice that is objectively applied when it is contrary to the popular mood is
not weak. Those who abandon the rule of law when it suits them have little
justification when times change and they want its protection.

The implications of all this for legal philosophy and principle are
imperative. International law must address the injustice that is the root cause
of the current wave of terrorism and this will require a radical revision of
where the law is willing to go. If it does nothing, it will permit the
continuation of terrible injustice, and the law itself will become irrelevant.
Anarchy will prevail. The law must move incrementally but firmly, or the
moves for change will be quick and violent, as we have already witnessed.

Consistently with this, in Australia we see the answer in social, political,
and economic justice reinforced by the law. It will not be found in widening
the gap between the rich and the poor. The extraordinary amounts spent on
a war could largely buy peace and security. It could also provide relief against
terrible suffering. Poverty and ignorance must be replaced with something
better than our imposition of self-serving globalization. Martyrs are difficult
to find for comfortable middle-class causes. If want and hopelessness are
absent, they have little stimulus.

The American catastrophe in a way prepared us for ours. Our response
to Bali was one of compassion for the victims and their families. When things
settled down, it generally followed the national philosophy - "She'll be right,
mate."

Roughly translated in its cultural context, it means -
" Don't get too excited;
* Think about what has to be done, do it, and do it properly;
* Fair go - meaning, "Don't go overboard;"
" Keep a sense of humor;
" Then, she'll be right, mate.

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THE TERRORIST THREAT: AUSTRALIA'S RESPONSE

The public manifestations have been interesting. After the grief and
sympathy, there was a mood of cheeky defiance and some moral outrage: but
it was reasonably restrained. The usual few bigots attacked some Muslim
mosques and people. Happily, this conduct only earned the disgust of the
general community, and the law's response was swift and heavy.
Interestingly, polls indicate that Australians were more moved by the
American tragedy than we were by our own. After September 11 th, it was
rather inspiring to see the banks of flowers left anonymously on the stairs of
the U.S. Consulate in Sydney.

This difference in response may be attributed to the difference in scale
of the tragedies, but we tend to be offhand about our own wounds. More
significantly, the attack revealed something that had until then been remote
from our thoughts - our vulnerability. It came as a shock. With minor
eccentric exceptions, we had never had the local equivalent of the Basques,
the I.R.A., the Red Brigade, or even the Timothy McVeighs of this world.
The last bombing had been detonated in a garbage bin outside the Hilton Hotel
in Sydney. It was planted by a religious zealot and was aimed at a visiting
foreign dignitary. It killed a garbage collector, but that was the only tragedy
out of the event.

This position of relative comfort had insulated us against the trauma of
direct attack and had left us complacent. The shock of realization stirred our
emotions at the time. On calmer reflection, we saw it as a price for our
political affiliations that we had to expect, if not accept. It was generally
accepted that our government's support of American foreign policy was
generally accepted. The Bali bombers say that they targeted Australia because
of our support of the United States in Afghanistan, to which they attributed the
deaths of a large number of Muslim people, including women and children.
Our happy goodwill towards everyone, which we expected would be
reciprocated, was no shield against this antagonism.

More importantly, our minds became more focused. We were now
players in a serious game. We did not shrink from that, but we also saw that
we have a problem that cannot be dismissed by simplistic responses. At a
deeper level, we saw our loss as the tragic result of a profound problem rather
than of a simple "Hate Australia" exercise by a few fanatics. We understood
that the attack was not gratuitous. While condemning the terrorism itself,
many recognized that its causes must be. addressed.

Pragmatically, we shall defend ourselves, but with suitable caution. Our
police gave effective aid to the very successful Indonesian investigation of the
Bali crime. This was done with sensitivity and with all due recognition of
Indonesian sovereignty. There seems to be not the slightest trace of criticism
of the legality and propriety of the entire procedure.

Prudence has demanded some domestic security precautions and
restraint, which is seen as a necessity. The more elaborate are accepted with
a certain wryness. The newspapers carried a photograph of an example of the
more extravagant security at the Brisbane airport - two security police and a

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dog; but the young policeman seemed to be concentrating his conversational
skills on the young policewoman. The dog looked bored.

Our government has outlaid a large sum in telling us that we should be
alert but not alarmed. The only thing that alarms us is our government's waste
of taxpayers' money. Travel warnings have been given, but Australians have
regumed their traditional walkabout.

I was recently in Singapore, where they strive to eliminate poverty and
to promote cultural harmony. Despite Australian government warnings, the
atmosphere was secure and peaceful, but one small touch went almost
unnoticed. After lectures, two of my Muslim students always saw to it that I
was accompanied back to my hotel three blocks away. Doubtless, their action
was motivated as much by kindness and courtesy as by any fear for my safety,
but I suspect that it was also insurance against any unpleasantness.

There was one other notable feature. Every one of the many
professional and commercial people there with whom I discussed this issue
was of the same views as Australians.

So, in respect of terrorism, we in Australia are almost back to normal,
but perhaps with somewhat heightened perceptions as to the need for the
development of the law to act to remove the sources of terrorism, which are
probably more horrific than terrorism itself. Apart from our terrorizing the
English on the cricket field, the current burning topic is whether we should
deploy military forces in the Middle East. But that is another matter -
entirely.

CONCLUSION

Australia has suffered its own major terrorist attack. After their
grieving, Australians believe that it can only be eliminated by striking at its
source; and the law must move to that end.

[Vol. 13:3