Preventive Justice in Combating Criminal Acts of Terrorism: Dilemma for Criminal Law and Law Enforcement
One of the post-9/11 impacts is the integration of the national security system and criminal justice within the framework of counterterrorism (McCulloch & Pickering, 2009, 628; Morreale & Ambert 2009, 1-2). This integration causes the criminal justice system to have a tendency to move away from traditional criminal justice, because in the framework of counterterrorism an acceleration of anticipatory action, risk-assessment and intelligence gathering is needed (Zedner, 2007). This eventually became a global trend where countries in formulating anti-terrorism laws and various variants of counter-terrorism policies are mostly oriented towards preventive justice.
As generally understood, crime prevention is defined as a non-penal action that reduces a person’s chances of committing a crime through various social and environmental policy strategies (Sutton et al., 2008). In other words, in this conception crime prevention is a way to reduce crime, eliminate criminal and pathological phenomena, involve criminals, and protect and assist crime victims. However, ‘preventive’ or ‘prevention’ in the context of counterterrorism is different from this general conception. Preventive justice is the steps and actions adopted by the state designed to reduce or prevent a risk or danger in the community. To prevent the predicted risk or danger from occurring, the strategy adopted is that law enforcement prioritizes and is oriented towards identifying threats early and intervening before an attack occurs (McCulloch & Pickering, 2009, 628). As stated by Lucia Zedner (2007, 262) “… the possibility of forestalling risks competes with and even takes precedence over responding to wrongs done. In consequence, the post-crime orientation of criminal justice is increasingly overshadowed by the pre-crime logic of security. ”
It seems that this global trend is also being followed by Indonesia. The character of preventive justice in anti-terrorism legislation in Indonesia has become increasingly visible after the enactment of Law no. 5 of 2018 concerning Amendments to Law Number 15 of 2003 concerning Stipulation of Government Regulations in Lieu of Law Number 1 of 2002 concerning Eradication of Criminal Acts of Terrorism Into Law. This character can be seen from a number of crimes that are included in preventative terrorism offenses (PTO), for example the criminalization of preparatory acts, mobilizing, organizing, recruiting someone to become a member of a terrorist organization, making, collecting, and / or disseminating writings or documents. , organizing, giving, or participating in military / paramilitary / other training (encouragement acts), possessing or trading certain explosives / chemicals (possession of terrorist materials), spreading words, attitudes or behavior, writing, or appearance, related to violence / threat of violence, being a member, having a relationship with a terrorist organization (association with terrorism).
From the criminalization of actions under the PTO category mentioned above, several things can be seen, first that someone who is just at the stage of carrying out a preparatory action, or moving other people to commit a criminal act of terrorism, has the same degree of guilt and is considered as dangerous as the perpetrator / executor of the criminal act of terrorism. . Second, even though his act of moving other people does not directly cause harm (terrorism), because it is not certain that the person who is moved will actually become the perpetrator / executor, the person who moves this is still considered the perpetrator of the criminal act of terrorism. Third, the person who moves this can already be convicted even though for the occurrence of a criminal act of terrorism, other types of acts are still needed so that the desired criminal act of terrorism can be realized. Other actions referred to here are, there are people who are moved, then this person who is moved commits a criminal act of terrorism. This mover is still considered to have committed a criminal act of terrorism even though the other two types of acts did not materialize. Herein lies the complexity of PTO, because it has expanded criminal liability and expanded the nature of the prohibited act (expanding the degree of the harmful principle).
Preventive Justice in Combating Criminal Acts of Terrorism: Dilemma for Criminal Law and Law Enforcement
One of the post-9/11 impacts is the integration of the national security system and criminal justice within the framework of counterterrorism (McCulloch & Pickering, 2009, 628; Morreale & Ambert 2009, 1-2). This integration causes the criminal justice system to have a tendency to move away from traditional criminal justice, because in the framework of counterterrorism an acceleration of anticipatory action, risk-assessment and intelligence gathering is needed (Zedner, 2007). This eventually became a global trend where countries in formulating anti-terrorism laws and various variants of counter-terrorism policies are mostly oriented towards preventive justice.
As generally understood, crime prevention is defined as a non-penal action that reduces a person’s chances of committing a crime through various social and environmental policy strategies (Sutton et al., 2008). In other words, in this conception crime prevention is a way to reduce crime, eliminate criminal and pathological phenomena, involve criminals, and protect and assist crime victims. However, ‘preventive’ or ‘prevention’ in the context of counterterrorism is different from this general conception. Preventive justice is the steps and actions adopted by the state designed to reduce or prevent a risk or danger in the community. To prevent the predicted risk or danger from occurring, the strategy adopted is that law enforcement prioritizes and is oriented towards identifying threats early and intervening before an attack occurs (McCulloch & Pickering, 2009, 628). As stated by Lucia Zedner (2007, 262) “… the possibility of forestalling risks competes with and even takes precedence over responding to wrongs done. In consequence, the post-crime orientation of criminal justice is increasingly overshadowed by the pre-crime logic of security. ”
It seems that this global trend is also being followed by Indonesia. The character of preventive justice in anti-terrorism legislation in Indonesia has become increasingly visible after the enactment of Law no. 5 of 2018 concerning Amendments to Law Number 15 of 2003 concerning Stipulation of Government Regulations in Lieu of Law Number 1 of 2002 concerning Eradication of Criminal Acts of Terrorism Into Law. This character can be seen from a number of crimes that are included in preventative terrorism offenses (PTO), for example the criminalization of preparatory acts, mobilizing, organizing, recruiting someone to become a member of a terrorist organization, making, collecting, and / or disseminating writings or documents. , organizing, giving, or participating in military / paramilitary / other training (encouragement acts), possessing or trading certain explosives / chemicals (possession of terrorist materials), spreading words, attitudes or behavior, writing, or appearance, related to violence / threat of violence, being a member, having a relationship with a terrorist organization (association with terrorism).
From the criminalization of actions under the PTO category mentioned above, several things can be seen, first that someone who is just at the stage of carrying out a preparatory action, or moving other people to commit a criminal act of terrorism, has the same degree of guilt and is considered as dangerous as the perpetrator / executor of the criminal act of terrorism. . Second, even though his act of moving other people does not directly cause harm (terrorism), because it is not certain that the person who is moved will actually become the perpetrator / executor, the person who moves this is still considered the perpetrator of the criminal act of terrorism. Third, the person who moves this can already be convicted even though for the occurrence of a criminal act of terrorism, other types of acts are still needed so that the desired criminal act of terrorism can be realized. Other actions referred to here are, there are people who are moved, then this person who is moved commits a criminal act of terrorism. This mover is still considered to have committed a criminal act of terrorism even though the other two types of acts did not materialize. Herein lies the complexity of PTO, because it has expanded criminal liability and expanded the nature of the prohibited act (expanding the degree of the harmful principle).
On the one hand, the criminalization of preparatory actions and other PTOs is very necessary given the development of technology and the development of the modus operandi of committing crimes. Especially if it is related to organized crime, such as criminal acts of terrorism and other organized crime. Because in the preparatory stage, it has not been seen or has not been proven that the offense will be committed (Kurniawan et al., 2019). But on the other hand, in criminal law, preparatory acts never have clear definitions and firm boundaries. Meanwhile, according to MvT, a clear boundary between the act of preparation and the initiation of implementation cannot be determined by wet (law). This condition is a potential problem for the criminalization of this preparatory act (PTO), because unclear boundaries will be prone to be interpreted arbitrarily by law enforcers.
Criminalization of PTO (including criminalization of preparatory acts) can lead to a repressive legal character due to the subjective nature of an act of preparation. Most preparatory measures have relatively broad definitions. This makes it difficult to know for sure if and when someone has committed a crime / illicit act. An illustrative example, for example, is related to the prohibition of acts of association with terrorist groups. When someone states that jihad is an obligation, in the context of expressing religious opinions and expressions, that statement is not a crime. However, when a statement to carry out jihad is expressed in an activity held by an organization affiliated with terrorism (deliberately recruiting for jihad) it means that all members of the organization and those present (not members) are responsible for the statement. Of course this creates difficulties for individuals who do not know what can and cannot be said and when someone exceeds the limit, or which statements are actually against the law.
Another example is when someone shows sympathy for ISIS, can it be said that the individual has a direct association with ISIS? Can this person be immediately arrested for his sympathetic expression? If the authorities then immediately arrest those who express sympathy for ISIS it could be considered a violation of civil liberties. Of course it will be different when someone who expresses sympathy for ISIS is then followed by other activities such as buying armor and tickets to go to conflict areas, then the expression of his sympathy for ISIS is an indication of the realization of his intention. In this case, law enforcers can carry out repressive actions only if indications of their intention are followed by certain activities – not simply because they have sympathy for ISIS. When the authorities (intelligence and police) know that someone is expressing sympathy for ISIS, it can only be used as a collection of indications for someone’s behavior that will lead to acts of terrorism, so it needs to be watched out. Such demarcations must be clearly stated in the PTO so that they are not prone to being misused and violating civil liberties. Individuals need to know for sure what actions fall into the category of violating and what are not. In the context of the example above, individuals need to know exactly what they can and cannot say and when someone goes beyond the limit of issuing a statement that is considered illegal.
Freedom is a feature of a democratic society that must be protected and is a very important issue. However, at the same time this freedom is not without limitations. The classic debate that often arises when criminal law is used as an instrument in the realm of counterterrorism is related to the issue of state security versus the protection of citizens’ human rights. In addition, there are often shifts and changes that have an impact on the rule of law and individual freedom.
It appears here that fundamental constitutional guarantees, such as free speech and rule of law principles, are at stake and can at some point lead to dictatorship. The broad and ambiguous PTO can be used by state authorities to limit the human rights to freedom of expression, association and peaceful assembly beyond what proves necessary and proportionate to counter specific threats, and risk undermining the essence of these rights. However, as indicated above, this trend of preventive justice doesn’t happen overnight. The discussion above also shows that risk management and precautionary principles have been applied in the field of law, resulting in changes to certain aspects of criminal law as well as having implications for the process of law enforcement and protection of citizens’ human rights.
Lecturer and Researcher in the Criminal Law Department
Faculty of Law, Universitas Airlangga
amiraparipurna@blogspot.com