Terrorist turns liberator in the stroke of a pen

What's the difference between a liberation movement and a terrorist organisation?

This question was brought sharply into focus recently when US President George Bush signed a Bill to remove Nelson Mandela and other members of the African National Congress from the US's terrorist watch list. While the ANC was removed from the US Department of State's list of foreign terrorist organisations some years ago, Mandela and other members remained on the terrorist watch list because of their connections with the ANC.

Most people today would find it extraordinary that Mandela could have ever been branded a terrorist. But it stands as a cautionary tale in examining how Australia's anti-terrorism laws are applied to liberation struggles.

The US declared the ANC a terrorist group during South Africa's Apartheid era. In the context of the Cold War, some saw it as a communist organisation that was a threat to pro-West South Africa. Other factors leading to its listing as a terrorist organisation were the ANC's military wing and the US's relationship with the Apartheid South African government at the time.

Yet when agreement on the bill was announced, the US representative introducing it stated: "The Senate and the House have now both affirmed that America's place is on the side of those who fought against Apartheid, and there should be no discrimination in our legal code based on their ANC association alone". With the benefit of hindsight, what was then a terrorist organisation is now readily seen as a liberation movement.

In Australia there are currently 19 organisations officially listed as terrorist organisations. This includes a section of Hamas, the officially elected Palestinian government, and the Kurdistan Workers Party (PKK), which many Kurds, with their history of systematic oppression, regard as their party. There are also other organisations that Australian law classes as terrorist organisations due to a very broad definition of terrorism.

While the people affected by these laws in Australia do not have the profile of Mandela, the impact of branding an organisation as "terrorist" is deeply felt and has many practical consequences.

On one level it becomes a criminal offence to be a member of the organisation, to give it money, to receive money from it, to provide it with training of any sort and, for listed organisations, to associate with its members.

The funding offences may be committed directly or indirectly. This can create a minefield for people sending money to family members overseas or giving to overseas charities. When the tsunami hit Sri Lanka in 2006, the Australian Tamil community raised significant funds for relief efforts. But the north-east region of Sri Lanka is largely administered by the Liberation Tigers of Tamil Eelam, which falls within the broad definition of a terrorist organisation under Australian law. The LTTE also played a significant role in the provision and distribution of post-tsunami aid. This meant that many community members and organisations who wanted to contribute to the relief efforts risked falling foul of our sweeping anti-terrorism laws.

Concerns about these sorts of risks prevail in many Australian communities that maintain an attachment to overseas regions where groups labelled terrorist organisations operate.

Communities linked with listed organisations also face increased attention from the authorities. After the listing of the PKK as a terrorist organisation in late 2005, Kurdish protesters outside the Turkish embassy in Melbourne were told by police that it was illegal for them to carry placards showing jailed PKK leader Abdullah Ocalan. In fact it was not illegal, but this kind of misinterpretation of the laws is not uncommon. And a consequence of this increased official scrutiny is a chilling effect on protest and other forms of political expression.

The listing of an organisation as a terrorist organisation also has a symbolic effect. Even if people do not find themselves facing criminal charges or police attention, there is the sense that the cause of that organisation has been criminalised. The sense of injustice this creates is all the more heightened where the organisation's cause is self-determination; particularly given that the right to self-determination is recognised under international law.

There is also a sense that any connections and aspirations shared with that organisation — regardless of how legitimate — have been criminalised. Imagine if the ANC were still fighting Apartheid today and were listed as a terrorist organisation. It would be difficult not to see the listing as a show of support for Apartheid.

The Parliamentary Joint Committee on Intelligence and Security recently released its report on the decision to keep the PKK on Australia's list of terrorist organisations last month. It did not recommend taking the PKK off the list. The re-listing of the PKK, and the way that the term "terrorist organisation" is used in Australian law, reflects a failure on the part of our politicians. It is a failure to recognise that communities may support the broad aims of an organisation without supporting that group's engagement in violent acts.

It is also a failure to recognise what history has taught us: that longstanding and systematic oppression perpetrated by state actors often gives rise to social movements that employ violent tactics. Labelling those movements "terrorist organisations" is not the solution. The solution lies in the end of that oppression, not in criminalising the people who oppose it.

[Marika Dias is a Community Legal Centre Lawyer and convenor of the Anti-Terrorism Laws Working Group.]