Investigate a contemporary world order issue in depth, including the legal and non-legal responses to terrorism and the rules-based order

What this dot point is asking

NESA wants you to investigate one contemporary world order issue in depth. Terrorism is a common choice because it raises the central tensions in international law: sovereignty, use of force, individual rights, and the difficulty of multilateral response. Expect this as a 25-mark Section III (Options) extended response.

The answer

The definition problem

There is no universally accepted definition of "terrorism" in international law. Multiple efforts at a Comprehensive Convention on International Terrorism at the UN have stalled, primarily over disagreement about whether national liberation movements are excluded.

In its absence, the international response has developed through:

• 19 sectoral conventions addressing specific aspects (hijacking, hostage-taking, bombings, terrorism financing, nuclear terrorism), including the Convention for the Suppression of the Financing of Terrorism 1999 and the International Convention for the Suppression of Acts of Nuclear Terrorism 2005;
• UN Security Council resolutions adopted under Chapter VII that bind all UN members.

Security Council Resolution 1373 (2001)

After the 11 September 2001 attacks, the UN Security Council adopted Resolution 1373 (2001) under Chapter VII. The resolution requires all member states to:

• criminalise terrorism financing;
• freeze the assets of suspected terrorists;
• deny safe haven to terrorists;
• prevent the movement of terrorists across borders;
• become party to the relevant international conventions.

Resolution 1373 also established the Counter-Terrorism Committee (CTC) to monitor implementation.

Security Council Resolution 1624 (2005) called on states to prohibit and prevent incitement to terrorism.

Security Council Resolution 2178 (2014) addressed the foreign terrorist fighter phenomenon.

Australia's response

Australia has one of the most extensive counter-terrorism legislative frameworks in the OECD, developed since 2002.

Key Acts:

• Criminal Code Act 1995 (Cth) Division 100, 101, 102 and 103. Defines "terrorist act" in s 100.1 and creates the principal terrorism offences (committing or planning a terrorist act, possessing a thing connected with a terrorist act, training with a terrorist organisation, being a member of a terrorist organisation).
• Anti-Terrorism Act (No. 2) 2005 (Cth). Created preventative detention orders and control orders.
• Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Created AUSTRAC reporting obligations.
• Australian Security Intelligence Organisation Act 1979 (Cth). Expanded ASIO's questioning and detention powers.
• National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). Allowed closed hearings for national security information.

The 2024 sunset reviews of control orders and preventative detention orders saw both regimes extended (Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Act 2024 (Cth)). The Independent National Security Legislation Monitor (INSLM) reviews and publishes recommendations on these laws.

Human rights tensions

Counter-terrorism law sits in persistent tension with civil and political rights:

• Control orders restrict liberty without criminal conviction; the High Court upheld their constitutional validity in Thomas v Mowbray (2007) 233 CLR 307 by a 5-2 majority.
• Preventative detention allows detention without charge for up to 14 days.
• ASIO questioning warrants under the Australian Security Intelligence Organisation Act 1979 (Cth) Part III Division 3 permit compulsory questioning of non-suspects.
• Citizenship cessation (Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth)) provided for the loss of citizenship for terrorism-related conduct; key provisions were struck down by the High Court in Alexander v Minister for Home Affairs (2022) 276 CLR 336 as a breach of the separation of powers.

The Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor scrutinise these laws.

Non-legal responses

• Counter-radicalisation programs including the Living Safe Together initiative (Commonwealth), and state-based programs.
• Community engagement with vulnerable cohorts.
• Media reporting including the ABC investigation into the 2014 Lindt Cafe siege and the subsequent NSW Coroner's report (2017).

International law tensions

The use of force in counter-terrorism raises jus ad bellum issues. The 2001 US-led invasion of Afghanistan was justified on self-defence grounds under article 51 of the Charter following the 11 September attacks. Subsequent counter-terrorism uses of force (e.g. drone strikes in Pakistan, Yemen and Somalia) are more contested. The 2003 invasion of Iraq was widely characterised as a breach of the Charter; the UN Secretary-General Kofi Annan described it as "illegal" in a 2004 BBC interview.

The 2015 Australian deployment to Iraq in support of the Iraqi government against Islamic State was framed as collective self-defence under article 51 at the request of the Iraqi government.

Effectiveness

Strengths. Resolution 1373 created a global baseline for counter-terrorism cooperation. Australian agencies disrupted multiple planned attacks between 2014 and 2017. International cooperation between intelligence agencies (Five Eyes; Interpol; the UN CTED) is well-developed.

Weaknesses. No agreed definition of terrorism limits the reach of international law. State actors have used counter-terrorism language to repress civil and political dissent. The rights costs in domestic counter-terrorism law have been significant. Lone-actor and online radicalisation are hard to address through state-to-state cooperation.