Southeast Asia has had a long history of fighting terrorism, but the terrorist attacks of 11 September 2001 against the United States and the region’s deepening integration with the global economy have elevated regional cooperation on counter terrorism to a higher level. In the pre-11 September 2001 period, most Southeast Asian countries dealt with the challenges of terrorism facing their respective territories unilaterally and/or multilaterally. But the American-led global war on terrorism and the Bush administration’s subsequent framing of Southeast Asia as its “second front” provided an impetus for a concerted regional response to address its implications. Moreover, greater economic globalisation which has, in many ways, created the conditions for growing “global underworld”, such as the transnational crime-terrorism nexus, necessitated international cooperation to tackle them. Consequently, the past few years witnessed a flurry of intra and extra-regional initiatives aimed at rooting out terrorism and transnational crime from the region and beyond.
Whilst a wealth of literature exists about the threats posed by terrorism in Southeast Asia, few provide insights into the regional mechanisms and measures to deal with the threats and assess their adequacy and efficacy. This paper aims at two purposes: whilst attempting at a critical and primary-source-based analysis of regional cooperation to counter-terrorism through the Association of Southeast Asian Nations (ASEAN), it also seeks to contribute to a better understanding of ASEAN through a closer look at its complex and often misunderstood institutions and mechanisms pertaining to security.
The main argument here is that whilst regional cooperation on counter-terrorism has been initiated in response to the American agenda, the fact that terrorism in Southeast Asia is both a local and global phenomenon makes it imperative for ASEAN to strategically redefine its counter-terrorism policy, so as to maintain its sustainability in the light of changing global security environment.
“Old” and “New” Terrorism
All countries in what is now Southeast Asia, except Thailand, had suffered centuries of colonisation. Colonialism had helped to engender an environment of dispute and suspicion that led to intra as well as inter-state conflicts. Inter-state conflicts flared up between Indonesia and Malaysia, between Malaysia and the Philippines, and between Malaysia and Singapore. Civil strife and proxy wars, in combination with historical animosities, unsettled the Indochina region at the height of the Cold War.
Out of this fractured region, and at the height of the Cold War, five countries (Indonesia, Malaysia, the Philippines, Singapore and Thailand) established the Association of Southeast Asian Nations (ASEAN) on 8 August 1967, in effort to forge peace in the region. Whilst Brunei Darussalam was admitted upon its independence in 1984, ASEAN had to wait until the Indochina wars and the Cold War ended before the Indochina countries and Myanmar joined the grouping. Now that the likelihood of inter-state wars greatly diminished, the region flourished economically (despite a temporary halt brought about by the 1997 financial crisis) and ASEAN embarked upon an ambitious plan of regional free trade and economic integration. AFTA (ASEAN Free Trade Area) became operational on 1 January 2003. Next step was the establishment of an ASEAN Community comprising three pillars, i.e., ASEAN Security Community, ASEAN Economic Community and ASEAN Socio-Cultural Community, by 2015.
This was indeed an arduous endeavour, as the region continued to be faced with evolving security challenges. Whilst those inter-state conflicts had been resolved, or at least bracketed, some countries in the region continued to be best by intra-state violence in the form of armed rebellion directed against the central governments. These armed rebellions have taken two forms: terrorism and insurgency. According to Tan, terrorism is in this context is defined as,” the use of violence against selected urban or human targets to push for ethno-nationalist or religious objectives.” Moreover, the decline in inter-state conflict by means of military might and the weakening of traditional power structures, gave rise to the notion of non-traditional security issues, such as poverty, resource scarcity, environmental degradation, ethnic conflict, as “new” security challenges. The end of the Cold War was also credited with providing global security (albeit temporary) and paving way for economic globalisation. But whilst globalisation and the Internet revolution facilitate trade and financial liberalisation to the extent that Friedman terms as “the flattening of the globe”, it causes discontents to those who are sidelined and even dispossessed by it and it has its dark sides too.
Whilst global market liberalisation encouraged by the neo-liberals of the Bretton Woods institutions has made it possible for the free flow of capital, goods, trade, services and – to a large extent – human too, it also enables the criminals to exploit unrestricted access to technological advancements, and financial and global market structures and operate in a virtually borderless world. Moreover, as state authority appears to be further eroded by the forces of globalisation, which is more pronounced in the case of weak and failed-states, these non-state actors with transnational characters pose significant challenges to state integrity.
The tragic events of 11 September seems to vindicate this “dark side of globalisation” phenomenon, as the attacks had been perpetrated by a non-state actor known for its highly decentralised global networks. This transnational and the millenarian religious characteristics of Al-Qaida have led to its labelling as “new” terrorism”, which according to Tan, is differentiated from “old terrorism” by, amongst others,“ a transnational mode of operation that disregards national borders; a global presence, made possible by decentralised, networked organisational structures and local strategic alliances; and the multinational character and composition of its members. ”
Recent phenomena even suggest that there exists interconnectedness between transnational crime and terrorism, partly due to the downsides of globalisation and, in the context of Southeast Asia, the region’s susceptibility to transnational crime and terrorism penetration. Studies also find that the acceleration of globalisation contributed to the thriving of “new” mode of terrorism financing in which terrorist organisations rely more on their illicit enterprises for funding. One study even estimates that this “new economy of terror” accounts for approximately 5 percent of world Gross Domestic Product (GDP).
Thus, this “new” terrorism poses one of the gravest post-Cold War challenges to Southeast Asia, particularly at the time when the region is struggling to recover from the bruises of the 1997 economic meltdown. Moreover, as home to the estimated 230 million Muslims (20 percent of the world total), Southeast Asia is uncomfortably placed in the international fight against terrorism, which is perceived to have pitted the West against the Rest, particularly Islam. Yet, the fact that the region has been fighting “old” terrorism raises a fundamental question: how “new” is terrorism in Southeast Asia?
The Myth of the Second Front
In late January 2002 the Bush administration sent American troops to assist their Philippines counterparts in counter-insurgency operations against the Abu Sayyaf (Bearer of the Sword) Group (ASG), a rebel group fighting the government t in the southern part of the archipelago. Notwithstanding the fact that the ASG was known more of its criminal activities and it lacked major organised base and coherent political agenda, some American analysts have described the ASG as similar to the Taliban in Afghanistan.
The ASG – and other Southeast Asia’s Islamist groups – was alleged to have forged ties Usama bin Ladin and Al-Qaida since the Afghanistan war in the 1980s, during which the US provided them financial and logistical supports and training to fight the Soviet occupation forces. Since then, Al-Qaida has allegedly set up base in the southern Philippines, which served as training ground for the Afghan alumni and other militant Islamist groups which activities appeared to have been concentrated in the country as well as Indonesia, Malaysia and Singapore. This troop deployment was widely heralded as the opening of the second front in the global war on terrorism; the first front being the Middle East, bin Ladin’s the original homeland.
Such framing seemed to have been explicable in light of the unravelling by the Singapore authorities a few weeks earlier of what appeared to be a nebulous terror network of Jemaah Islamiyah (JI), and the subsequent arrests of dozens of its operatives in the country as well as Malaysia, the Philippines, and much later, Indonesia.
The JI was alleged as Al-Qaida’s affiliate envisioning the establishment of a Pan-Islamic caliphate encompassing the three mostly-Muslim states of Brunei, Indonesia, and Malaysia as well as regions which had historically been Muslim territories and who still have significant Muslim minorities, i.e., Singapore, the Philippines and Thailand.
Moreover, radical Islamism appeared to have been on the rise in the region. The Philippines and Thailand have been fighting decades-old Islamist insurgencies, but the conflicts flared up in recent years with no peaceful settlements appeared on the horizon. In Indonesia, the post-Suharto transition to democracy has been complicated by the resurgence of political Islam, in both violent and non-violent forms. It was suspected that the Taliban fighters fleeing the American attack in Afghanistan had been forming alliance with its Southeast Asian counterparts to use the region as an operational launching pad for their retaliatory attacks against the US and its allies. A series of terrorist attack in Indonesia, e.g. the Bali bombings (October 2002) which killed nearly 200 people, mostly Australians; the suicide bombing at the American chain Marriot Hotel in Jakarta (August 2003); the bombings at the Australian Embassy in Jakarta (September 2004), the bombings at restaurants catering for foreign tourists in Bali (October 2005) and elsewhere in the region seemed to substantiate the fear that now the Taliban threat has somewhat been contained, Southeast Asia has become the forefront of Al-Qaida’s “new” terrorism.
But how valid is such framing? A brief survey of a rich body of scholarly literature on terrorism in Southeast Asia, which demonstrates the intensity of the debate over the roots, dimensions and magnitude of terrorism in the region, would provide a clue to the question. As summarised by Thayer, there are, at least, three general approaches to analysing terrorism in Southeast Asia: an international focus, a regional focus and a country- specific focus – although there is some overlap between the approaches.
The international terrorism perspective, popularised in the region by terrorism analysts such as Gunaratna, dominated much of the early discourse on the roots and magnitude of terrorism threat facing Southeast Asia. It is very much in line with the afore-mentioned “second front” framing, as it views the region as highly vulnerable to terror and a shelter for Al-Qaida-linked regional terrorist networks aiming to overturn democracy and substitute it with some form of caliphate. As such, terrorism in Southeast Asia is seen within the wider notions of civilisational clash between the West and Islam. Given the immense weight that American foreign policy carries in the region, more careful and nuanced approach which questioned such overheated rhetoric hardly gained currency, particularly amongst the regional policy makers, as most Southeast Asian states were immediately drawn to align themselves with Washington.
This perspective, however, has come under critical scrutiny due to its narrow, actor-centred and alarmist depiction of the region without providing adequate empirical and analytical evidence. Gunaratna’s works, for instance, has been heavily criticised because of their overreliance on unverifiable “intelligence” data, misleading interpretation of secondary sources, and his penchant for making unsubstantiated claims. A case in point is Gunaratnas’s co-edited volume of “Conflict and Terrorism in Southern Thailand”, a case study of international terrorism exploitation of local conflicts, which according to Connors, is awash with errors, both factual and interpretative, to the extent that he advocates “a ‘war on error’ to counter, “the ill-informed, sensationalist and muddle-headed work too often published by members of the ‘insecurity industry”.
As Gunaratna is a leading proponent of this perspective, such fundamental flaws in his works can arguably be seen as reflecting the inadequacy of this perspective in explaining terrorism in Southeast Asia. Recently, the ‘war on error’ against such works has been materialised in the launching of “Critical Studies on Terrorism”, an academic journal which seeks a critical turn in the terrorism studies, which somewhat reflects the turn of the tide in the global war on terrorism prompted by the Bush administration’s mishandling of the issue as well as the wars in Iraq and Afghanistan.
The regional security approach adopts the Al-Qaida-centric paradigm of the international terrorism perspective and extends it to virtually every militant Islamist groups operating in the region, particularly Indonesia, home to half of the region’s radical Islamist groups and the site of a number of major terrorist attacks. Regional security specialists, such as Abuza and Rabasa, as well as regional security authorities, treat groups as diverse as the Mujahidin Council of Indonesia, Laskar Jihad (the Army for Religious Struggle), Laskar Jundullah (the Army of God), Laskar Mujahidin (the Army of Religious Fighters), the Islamic Defenders Front – all in Indonesia – Malaysia’s Gerakan al-Maunah (Movement of the Divine Aid) and Kumpulan Mujahidin Malaysia (Association of Malaysian Religious Fighters); and Thailand’s Pattani United Liberation Organization, as terrorist affiliates of Al-Qaida.
Further studies, however, reveal that most of the militant groups are local in origin and emerge in response to local grievances and conditions. A “softer” variant of this approach posits that Southeast Asia’s landscape of susceptibility to international terrorist penetration due to its historical, geographical, political, economic, and social make-ups that provide “enabling environment” for Al-Qaida co-option and penetration of the local Islamist groups. Moreover, it identifies the influence of militant religious ideologies emanating from the Middle East, particularly the Wahabbism, as a key factor in contributing to the recent hardening attitude of Islam in Southeast Asia, which has been long known as moderate and tolerant, towards the US and its allies, through the provision of funding from the Saudi Arabian charities.
However, it is this myth of Al-Qaida linkage with regional radical Islamists that the country specific perspective seeks to debunk. This perspective offers a multi-disciplinary and nuanced approach in demonstrating that terrorism in the region is largely a local phenomenon, which must be understood within the specific local political and historical contexts. Thus, an overemphasis on the Al-Qaida aspect seriously misrepresents the root causes of the problem which lie in, amongst others, poverty, injustice and authoritarianism. Whilst it does not deny the existence of transnational terrorist networks in the region and the possibility of a linkage between local militant Islamist groups with Al-Qaida, it questions the methodological validity of linking every radical Islamist groups in the region with Al-Qaida. Tan, for instance, argues that claim of Al-Qaida co-option and penetration of regional local Islamist groups is disputed by the fact that they have pre-dated Al-Qaida and emerged in response to local grievances and conditions.
It is also worth noting that the open and free trials of the perpetrators of the Bali bombings, in which Al-Qaida had been alleged to have provided some sorts of support, had failed to deliver implicating evidence about the linkage between the JI and Al-Qaida.
Sidel’s recent study further challenges the depiction of ostensible rise of virulent Islam in Southeast Asia. This study is worth noting because, as Vatikiotis lauded, “it demolishes many of the shaky premises that have shored-up the so-called ‘second front’ in the US-led ‘war against terror’ and helped create a dangerous divide between Muslims and non-Muslims in the region”. In his brief essay, Sidel argues that, “instead of an Islamist offensive, the past several years have witnessed a marked pattern of decline, defeat, disappointment, demobilisation, and disentanglement from state power for forces identified with Islamist causes in the region.” Using more informed and refined analysis, he further demonstrates that, in fact, the period between 2000 and 2007 witnessed the significant weakening of radical Islamist movement and a broad trend of declining violence in the name of Islam in Southeast.”
Nonetheless, there is one common thread that the above-mentioned three perspectives share: that there is a certain degree of transnational linkage between the home-grown radical Islamists and international terrorist networks. Even the most local of radical Islamist groups have regional and international connection: from common dislike for the US’ pro-Israeli and its widely-perceived anti-Islam foreign policies to drawing inspiration from the pan-regional idea of statehood a la the JI and the pan-Islamic ideology of Al-Qaida. And in this globalised world, it is highly unlikely for a local cause to remain totally insulated from external influence.
Thus, as Acharya succinctly argues the fusing of local objectives directed against regimes with the regional aspiration for an Islamic super-state and the ideology of international terrorist networks such as Al-Qaida makes it imperative that the present threats of terrorism in Southeast Asia be understood as being both a local and global phenomenon. Or, in Tan’s words, “the “new” terrorism exists in tandem with the “old” terrorism representing the long-standing ethnic, religious, political, economic and social grievances that pre-dated 11 Septembee2 2001, in which the local dynamics play the more dominant factor”.
On the Bandwagon
In the aftermath of the events of 11 September 2001, Southeast Asian states had generally been left with few options, particularly in the light of the Bush Administration’s infamous “either with us or with the enemy” ultimatum, but to toe Washington’s line. However, as perception of terrorist threat and national response to it are shaped both by domestic concerns and alliance compulsions, there has been a divergence amongst the Southeast Asian states as to the extent of their conformity with the American agenda.
The Philippines stood at one extreme as it treated terrorism as a form of heightened insurgency which had to be defeated through military means. President Gloria Macapagal Arroyo not only jumped onto the American bandwagon, but she took full advantage of it and used the American military arm to handle a domestic security problem. Her Indonesian counterpart, (then) President Megawati Sukarnoputri, was at the other extreme, as she had to walk a fine line between balancing her international commitment to root out terrorism and securing her fragile leadership due to her lack of Islamic credentials in the face of domestic outcry over what many Indonesian Muslims perceived to be America’s a camouflaged war on Islam. Only after the Bali bombings of 2002, which forced her government to revise the annual budget due to the severity of its economic impact, did Jakarta align itself with Washington to avert possible political and economic repercussions.
In between the two extremes, other Southeast Asian states’ perceptions of terrorism varied too. Singapore clearly shared the US’s perspective which saw radical Islam as a main threat to both national and regional security, as did Thailand who has been fighting struggling with the decades-old Islamic insurgency in its southern territory. Malaysia shared Indonesia’s caution over what was perceived as attempt at linking terrorism with Islam. Yet unlike Megawati, (then) Prime Minister Mahathir Mohammad exploited global condemnation of Islamic extremism to justify a crackdown on mainstream Muslim opposition parties, especially the All-Malaysia Islamic Party Parti (PAS).
This, however, helped to thaw his previously chilly relation with Washington, as the latter praised Malaysia’s support for the American-led war on terrorism.
Although militant Islam was virtually non-existent in the more ethnically and religiously homogenous Brunei, it shares Indonesia and Malaysia’s concerns over the deteriorating image of Islam as a result of the global war on terrorism. But like the late comers of ASEAN – known in the ASEAN nomenclature as the CLMV (Cambodia, Laos, Myanmar and Viet Nam) countries – who are hardly faced with the challenges of terrorism, it adheres to the collective regional stance to support international fight against terrorism. Cambodia had received a considerable international attention due to the arrest of Hambali, one of key leaders of the JI, in its territory in 2005, but there is no evidence of international terrorist penetration in the country.
Given the divergence in their perception of terrorist threats and their respective political, economic and legal constraints, Southeast Asian states’ response to terrorist threat and the resources channelled to counter it also varied.
The Philippines is the only Southeast Asian country who treated insurgency as terrorist threat and deals with it militarily, although the Arroyo government tried to offset it by pursuing peace process with the MILF. Both strategies have yet to yield significant results: the deployment of the American troops appeared to have aggravated the situation rather than restoring order in the troubled areas, and peace initiative collapsed due to complications in Manila politics. Thailand also launches military operation to deal with the southern insurgency, although it officially refrains from declaring it terrorism. Indeed, whilst there has been a conventional wisdom regarding the connection between the ASG, the JI and Al-Qaida in southern Philippines, there is no concrete evidence that outside elements such as JI have been participating in the local conflict in southern Thailand.
Numerous studies demonstrate that it is an insurgency rooted in the complexities of the country’s historical, political, ethnic and social make-ups which has been exacerbated by the continuing turbulence in Thai politics as well as the incompetency of the military in dealing with the issue.
The rest of Southeast Asian countries adopted law enforcement measures to counter terrorism, although there were differences in their approach, which consequently yielded different results. In general, lack of appropriate legal mechanisms and adequate law-enforcement capacity has been cited as a major weakness in Southeast Asian countries’ response to terrorism. Indeed, prior to the UN requirement that all of its member states enact a series of counter-terrorism legislations issued in response to the events of 11 September 2001, none of Southeast Asian countries had enacted specific counter-terrorism legislation, although there were certain provisions on criminalisation of terrorism offences in their criminal laws.
Under intense international pressure to do more in rooting out terrorism in the aftermath of the Bali bombings in October 2002, Indonesia hastily passed anti-terrorism act, which had subsequently been used to try the perpetrators of the bombings. Following its march to a democracy in 1998, Indonesia had revoked the draconian Anti-Subversion Act – the equivalent on Internal Security Act (ISA) in Brunei, Malaysia and Singapore – which allowed the authorities to conduct arrest based on scanty intelligence information, an instrument used by the New Order government to suppress political opposition. Under the existing criminal law and procedure, an arrest could only be made if there is sufficient legal evidence, which could be overturned by a court at the suspect’s petition should there be evidence to invalidate his case.
This, however, left Indonesia with a significant legal loophole, as its corrupt and inept security and judiciary apparatus were required to work harder to build a credible legal case. This legal loophole was apparent in the trial of Abu Bakar Bashir, the alleged founder and spiritual leader of the JI, in which the authority was forced to acquit him as there was no sufficient evidence to implicate him. Prior to the enactment of anti-terrorism act, Indonesia had been perceived as the “weakest link” in the regional cooperation to counter terrorism. The enactment of the anti-terrorism law, however, sparked concerns amongst the civil-society that it could hurt the hard-won civil liberties and violate human rights, which eventually, could lead to a partial closure of democracy in Indonesia.
The Indonesian case raises a few fundamental questions: does effective counter-terrorism measure necessitate disregard of human rights and the yielding of civil liberties to the clear and present danger? In other words, does democracy, and by definition its respect of human rights and protection of civil liberties, impede the effectiveness of state response to terrorism? But aren’t lack of democracy and injustice caused by disrespect of law amongst the “root causes” of terrorism?
Such discourse is beyond the scope of this paper, but it is raised here to highlight the divergence in Southeast Asian states’ response to terrorism. Whilst Indonesia was struggling to balance between its commitments to root out terrorism and at the same time maintaining its democratic consolidation process, there have been reports that Malaysia and Singapore used the ISA to conduct arbitrary arrest and indefinite detention of terrorist suspects. Yet they won praises from the Bush Administration, who seemed to have adopted a true Machiavellian attitude of the-end-justifies-the means towards these states. The end, however, remains to be seen. Whilst Malaysia and Singapore have been relatively successful in containing terrorist threat in their respective territories, Indonesia, which has arguably been faced with greater terrorist threat but somehow managed to deal with issue without committing significant human rights abuses, perhaps merits better appreciation. It is also worth noting that notwithstanding the concerns about potential abuse of their counter-terrorism measures by Southeast Asian states, so far, there is no Guantanamo-Bay-like terrorist detention facility in the region.
United Front
But the states put aside their differences as they had to come up with collective response to the changing global security environment brought about by the events of 11 September 2001. Although cooperation to counter terrorism has been officially initiated since 1997 as part of regional efforts to combat transnational crime, this “new” terrorism and the region’s delicate position, as discussed earlier, compelled ASEAN to weigh its stance carefully.
At their summit on 5 November 2001, at the time when the US had already launching military operation against the Taliban, ASEAN leaders issued the 2001 ASEAN Declaration on Joint Action to Counter Terrorism, which preamble laid out regional stance on terrorism. They included: (i) rejection of any attempt to link terrorism with any religion or race; (ii) terrorism is a direct challenge to the attainment of peace, progress and prosperity of ASEAN; (iii) efforts to counter terrorism must be conducted in accordance with the Charter of the United Nations, and all of its relevant resolutions.
Whilst it may sound normative to ASEAN outsiders, the declaration’s preamble signifies a Southeast Asian united front on the issue of terrorism. The first point is indeed a universal principle, but it also underscores concerns over what some Southeast Asian Muslims perceived to be a camouflaged war on Islam. The second recognises that despite the fact that global war on terrorism is an American-led agenda, it is also a regional issue as it has significant ramifications for ASEAN. But the third clearly signifies a denunciation of the Bush Administration’s unilateralism and its widely-criticised doctrine of pre-emptive strike. In this regard, ASEAN asserts that the fight against terrorism must be guided by multilateralism principle as set forth in the United Nations (UN) Charter. This explains the centrality of the UN multilateral framework on counter-terrorism – known as the universal anti-terrorism instruments (UATIs) – as primary reference for intra as well as extra-regional cooperation on counter terrorism.
Contrary to some analysts’ suggestion that “regional groupings have been better at issuing declarations and identifying principles than developing concrete operational counter-terrorism mechanisms”, ASEAN has endeavoured to translate the above declaration into concrete regional programmes. The declaration mandated regional body responsible for overseeing collective response to transnational crime, i.e. the ASEAN Ministerial Meeting on Transnational Crime (AMMTC) and its operational arm, the ASEAN Senior Officials Meeting on Transnational Crime (SOMTC), to develop the necessary operational programmes to implement it. Consequently, practical measures set out in the declaration, most of which were law-enforcement measures aimed at building-up regional capacity to deal with terrorism in accordance with the UN requirements, were incorporated into the terrorism component of the ASEAN Work Programme to Combat Transnational Crime.
Adopted by SOMTC in 2002, the Work Programme is an operational guideline for regional cooperation in eight areas of combating transnational crime (terrorism, illicit drug trafficking, trafficking in persons, money laundering, sea piracy, arms smuggling, international economic crime and cyber crime).
In 2005, it was further revised on a two-year basis to maintain its relevance and adequacy in responding to the changing nature of transnational crime and to include the provisions of the Vientiane Action Programme (VAP), a six-year guideline towards the establishment of an ASEAN Community. Since then, more than a dozen regional counter-terrorism projects have been developed, ranging from “hard” law enforcement measures such as developing region-wide border control mechanism to prevent terrorist movements to “soft” rehabilitative programmes aimed at reintegrating “reformed” terrorist to the mainstream society. Moreover, two key regional instruments relating to counter-terrorism have been established.
There is, however, a limit as to what regional initiatives on counter-terrorism do, which mostly fall within the scope of forging consensus, establishing necessary regional instruments and facilitating both intra and extra-regional cooperation relating to counter-terrorism. In spite of its ambitious expansion and its goal of achieving ASEAN Community by 2015, ASEAN retains much of its archaic fixation with preserving sovereignty at the hands of its members which, to a certain extent, constrains the effectiveness of regional initiatives.
The Declaration of ASEAN Concord II – known as the Bali Concord II – which sets out the vision of an ASEAN Community affirms the fundamental principles governing ASEAN cooperation, which include: non-interference and respect for national sovereignty, the renunciation of the threat or the use of force, and peaceful settlement of differences and disputes. This preservation of sovereignty principle is further reiterated in the newly-ratified ASEAN Charter, despite discourses about ‘diluting’ it prior to and during its drafting.
The Declaration also asserts that ASEAN subscribes to the principle of comprehensive security which has,” broader political, economic, social and cultural aspects, rather than a defence pact or military alliance or joint foreign policy”.
This comprehensive security concept is translated into the regional policy on counter-terrorism through bottom-up approach progressing from the national level to the regional level. As such, primary responsibility to deal with terrorism rests with ASEAN member countries, whilst regional initiatives serve to complement and add value to them. Whilst this is a nearly universal principle governing internal relations within regional organisations, including the European Union (EU), which has “pooled” its member states’ sovereignty in a Brussels-based supra-structure, it is definitely more pronounced in ASEAN.
Thus, whilst national counter-terrorism programmes address its local dimension, regional initiatives are aimed at tackling its transnational and international dimensions. The regionality principle of ASEAN cooperation requires that all regional programmes must benefit and be participated by, where possible, all ASEAN countries. In the event where regional cooperation is considered impractical, multilateral or sub-regional arrangements may substitute it. A sub-regional arrangement relating to counter-terrorism has yet to exist, but there is a trilateral agreement between Indonesia, Malaysia and the Philippines on the enhancement of information exchange to address terrorism.
Another multilateral framework is the ASEAN Regional Forum (ARF), a forum for peace and security dialogue involving twenty seven Asia-Pacific countries. Having focused on confidence-building co-operation since its inception in 1994, ARF is now undertaking more concrete activities in areas such as combating transnational crime and counter-terrorism, non-traditional security issues, non-proliferation and preventive diplomacy.
The question is: are these arrangements effective?
A significant body of literature has been dedicated to analysing ASEAN’s comprehensive security concept, which was derived from the security doctrines adopted by three states in the region -Indonesia, Malaysia and Singapore – as well as similar concepts in Brunei, the Philippines and Thailand. First coined in Japan in the 1970s, comprehensive security concept implies security that goes beyond (but does not exclude) the military to embrace its political, economic and socio-cultural dimensions. Inward-looking and state-centric in orientation, it places paramount importance on the role of the state in providing security. In the regional security context, this approach focuses primarily on norms sharing, as well as trust and confidence building, as opposed to the dominant Western security approaches of deterrence, power balancing and alliance building.
Its critics point out that in the context of global fight against terrorism, this state-centrism and loose approach of trust and confidence-building are inadequate to provide sustained regional response to the issues.
Its supporters, however, contend that a comprehensive security approach which includes dealing with the political, economic, social and cultural aspects of terrorism and transnational crime would enable ASEAN tackle the roots of the problem in the community, as much if not more than military and police intervention.
A closer look into ASEAN policy on counter-terrorism shows that there are both truths and flaws in the above observations. Despite its emphasis on law-enforcement measures, regional counter-terrorism programmes do include addressing the multi-dimensional aspects of terrorism and involve broader stakeholders other than state apparatus. Yet the emphasis on trust and confidence building as well preservation of sovereignty do impede their effective implementation.
Take the case of the Treaty on Mutual Legal Assistance in Criminal Matters (MLA Treaty) and the ASEAN Convention on Counter Terrorism (ACCT), two of three key regional legal instruments mandated by the VAP.
These regional instruments are urgently needed to facilitate better co-operation amongst ASEAN law enforcement and judicial agencies regardless of the differences in their country’s legal systems and judicial procedures. The MLA Treaty and the ACCT were signed in 2006 and 2007 respectively, whilst an ASEAN Extradition Treaty was being developed.
The MLA Treaty began as an initiative of Malaysia who engaged like-minded neighbouring countries in drafting it. After several rounds of negotiation and eventual participation of the rest of ASEAN countries, the Treaty was signed in January 2006.
The Treaty is a significant legal instrument for it will enable ASEAN law enforcement and judicial authorities to cooperate in the apprehension, investigation and prosecution, exchange of witnesses, sharing of evidence, enquiry, seizure and forfeiture of proceeds of a crime – regardless of the differences in their legal systems and judicial procedures. Upon its entry into force following its ratification by all ten ASEAN countries, the Treaty will be open for accession by non-ASEAN countries. However, there seems to be some reservations against its elevation into an ASEAN Treaty, as called for by the VAP, apparently due to a few states’ concern about its possible intrusion into their sovereignty.
The ACCT is another story. Concluded in a record time of two months of negotiation and three days of marathon drafting, it actually took off to a slow start, as the initiative for its establishment had been on the table since 2005, partly due to intense debate on the necessity and urgency for such regional legal instrument. Its proponent pointed out to the VAP mandate. Moreover, ASEAN was one of a few regional organisations that had yet to develop its own legal instrument on counter terrorism, thus an ASEAN convention would send a strong signal to the international community of ASEAN’s commitment to root out terrorism from the region and beyond.
Its opponent, however, argued that all ASEAN member countries were also members of the UN. As such, they were obliged by the United Nations Security Council Resolutions (UNSCR) 1373 (2001), the key legal instrument guiding international cooperation in the fight against terrorism which was adopted on 28 September 2001, to become party to the above-mentioned UATIs.
The UNSCR 1373 (2001) was the legal basis for the establishment of the UN Counter-Terrorism Committee (UN CTC), whose job was to ensure that all UN member states adhere to the requirements of the Resolution. Thus, adherence to a regional legal instrument on terrorism, which, in essence, had to conform to the UN instruments, would only add additional burden to members of ASEAN. Moreover, the UN has been trying, although to no avail so far, to amalgamate the 16 UATIs into a UN Comprehensive Convention on Counter-Terrorism. In regards to the fact that ASEAN was one of a few last regional organisations that had yet to develop its own convention on counter-terrorism, it was counter argued that those regional conventions had been developed prior to 11 September 2001 and the issuance of the UNSCR 1373 (2001). However, through intense negotiation it was finally agreed that the convention would be developed only if it provided a specific regional measure that added value to the existing regime of UATIs.
This “regional flavour” is reflected in article XI on rehabilitative programme for terrorist convicts and their reintegration to the mainstream society as a way to prevent them from redoing their acts. This programme, which involves broader stakeholders, including religious leaders and other members of the civil-society, draws from the experiences of Indonesia, Malaysia and Singapore. Over the past five years, several hundred alleged terrorists have been arrested, most f them in Indonesia, and some of them were put into this programme. Similar programme has been implemented in Egypt and Yemen, but ASEAN is the first regional organisation that provides a legal framework for it.
Other significant feature of ACCT is its compliance with the provisions of the UN Global Strategy on Counter Terrorism, which was adopted by the UN General Assembly in September 2006, including its human rights requirements (article VIII). It signifies ASEAN’s commitment to address the human rights issues which have hindered its relations with other regional and extra-regional powers, as further affirmed by the establishment of Human Rights Body as set forth in the ASEAN Charter. It also recognises the importance of intra-faith and inter-faith dialogues as well as dialogue amongst civilisations (article VI. f), signifying the role that ASEAN could play in the global efforts to avert the-so-called “clash of civilisations” and bridge the perceived widening gap between the West and the Rest.
The expeditious conclusion of the ACCT, however, owes to the fact that, besides intense pressure from President Arroyo who wanted it signed when she hosted the summit in Cebu City, the ACCT refrains from defining “terrorism”, a contentious issue that has been dragging the UN effort to amalgamate the 16 UATIs into one comprehensive UN counter-terrorism convention. Given the divergence in the individual state’s stance on terrorism, an attempt to reconcile the many definitions and conceptions of terrorism would only hinder a regional consensus. Against this backdrop, the agreed decision that ACCT define the offences of terrorism within the scope of relevant UN and multilateral conventions and protocols pertaining to terrorism was arguably reasonable.
In this regard, an observation over the complications caused by sovereignty issue on regional agreements is worth mentioning here as it raises a few points of contention that need some clarifications. According to Acharya and Acharya, “the 2007 ASEAN Convention on Counter Terrorism seeks to define terrorism within the scope of treaties dating back to the 1970s, all of which stress the principle of non-interference. This agreement, as well as the November 2005 Treaty on Mutual Legal Assistance in Criminal Matters, gives domestic laws precedence over the various provisions mentioned in the treaty”.
Whilst the observation rightly points out to the much-criticised ASEAN’s fixation with sovereignty, it does miss a few important marks apparently due to unfamiliarity with the principles of international law. First, as explained above, the ACCT does not define “terrorism”; but it provides legal definition for criminal acts of terrorism so as to enable law-enforcement and judicial agencies on the ground put it into action. Second, of the 16 UN and multilateral conventions and protocols pertaining to terrorism only six conventions dated back to the 1960s and 1970s. The rest were developed in the late 1980s onward; the convention on nuclear terrorism was only adopted in 2005 and entered into force on 7 July 2007. Thus, these are not archaic treaties, as suggested by the above observation, but the universally-accepted legal regime pertaining to terrorism as set forth in the UNSCR 1373 (2001).
Third, although non-interference principle has become a subject of intense scholarly debate, it remains very much the governing principle of international law. Lastly, stipulation that provisions in the regional treaties are subject to domestic laws does reflect this principle. However, it was also provided on the ground that, as mentioned above, the UNSCR 1373 (2001) obliged all UN member states, including ASEAN countries, to harmonise their national laws and/or enact new laws pertaining to terrorism as required by the provisions of the relevant UATIs. Thus, it would be cumbersome for ASEAN countries to repeat the feat.
Nonetheless, the signing of the ACCT marked an important stage in ASEAN cooperation on counter-terrorism. Yet its implementation remains to be seen, as so far, no ASEAN member country has ratified it. Moreover, the ACCT does not specify mechanisms for enforcement of this legally-binding instrument. A comprehensive plan of action to implement the ACCT was being developed and is expected to provide details on the necessary institutional mechanisms and operational modalities as well as concrete programmes to implement it.
Indeed, whilst regional legal instruments relating to counter-terrorism have been gradually put in place, the institutions needed to enforce them are far from developed. Like other ASEAN mechanisms, ASEAN bodies relating to counter-terrorism are still very much in the “talk-shop” mode and have yet to significantly move beyond confidence-building stage. However, the speedy ratification of the ASEAN Charter, which gives ASEAN a legal personality and seeks to transform it from a loose association to a more rules-based organisation, by all ten ASEAN countries is indeed a significant step towards strengthening its institutions.
Such institutional reforms are needed as ASEAN expands its extra-regional cooperation to counter terrorism. ASEAN has signed agreements on counter-terrorism cooperation with all of its Dialogue Partners (Australia, Canada, China, European Union, India, Japan, Republic of Korea, New Zealand, Russian Federation and the United States of America) and one Sectoral Dialogue Partner (Pakistan). Regular consultations have been held and some of the agreements have been translated into annual joint programmes, which focused mostly on capacity-building and training on various aspects of counter-terrorism. Yet, this is a lopsided relation, for although some of the projects are funded on a cost-sharing basis, ASEAN remains heavily dependent on external financial sources to support its counter-terrorism activities.
Interestingly, given the fact that global war on terrorism is an American-led agenda, it turns out that Japan, not the US, who has established a more substantive cooperation to counter terrorism with ASEAN. In December 2005, (then) Prime Minister Junichiro Koizumi launched a series of new programmes to support ASEAN integration, which signified Japan’s “re-Asianisation” foreign policy in light of the rising stature of China and the changes in Japan’s relations with the US.
Pursuant to this, the ASEAN-Japan Counter Terrorism Dialogue was established as a forum to intensify cooperation on counter-terrorism and held its inaugural meeting in June 2006. Since then, the Dialogue has tabled concrete counter-terrorism projects, ranging from “hard” law-enforcement measures such as the setting up framework for regional response to cyber-crime to “soft” preventive efforts aimed at addressing the root causes of terrorism.
By contrast, in the six years since its inception in 2002, ASEAN-US cooperation on counter-terrorism had only produced one seminar on managing the aftermath of a terrorist attack.
A few of the proposed projects under this framework of cooperation have been put on hold due to political and technical considerations. This may simply be the case of priority, as the US seems to place its emphasis more on its bilateral cooperation with individual Southeast Asian countries rather than ASEAN as a regional grouping. But it may also have something to do with the fact that the US is the ASEAN partner who has yet to sign the Treaty of Amity and Cooperation (TAC), although it seems to change under President Barack Obama.
Nevertheless, the expansion of its cooperation demonstrates that ASEAN has been doing its part in the international fight against terrorism, as acknowledged by the UN CTC. In a June 2008 report, it recognises that, “regional cooperation regional cooperation to combat terrorism has been enhanced through a series of mechanisms and processes, including the adoption of the ACCT”. The report, however, identifies that vulnerabilities still exist in some areas such border control and combating terrorist financing, whilst there are shortfalls in the implementation of international standards of aviation, maritime and cargo security.
Likewise, a report on the implementation of UNGA Global Counter-Terrorism Strategy recognises that despite its weak institutions, ASEAN can play significant role in promoting the Strategy, particularly after the signing of the ACCT and the ratification of the ASEAN Charter.
Conclusion: the need for regional policy reorientation
ASEAN cooperation to counter terrorism is still in its infancy. Since its inception in 2005, it has been devised to respond to the American-led international fight against terrorism, and to a certain extent, the much-contested “second front” myth. As such it was geared more towards building-up the law-enforcement capacity to counter terrorism at the regional level. Yet, as more and more studies contend that the terrorism in Southeast Asia is more local than global, and its roots lie in within the “non-traditional security issues” context including, amongst others, poverty, injustice and authoritarianism, it is worth raising the question: is regional policy on counter-terrorism adequate, and more importantly, sustainable?
As it currently stands, regional counter-terrorism policy cannot address the “local” roots of the problem, as ASEAN cooperation is dictated by the preservation of sovereignty principle with its clear-cut distinction between national and regional domains. But as globalisation breaks down territorial boundaries, and consequently, eases the transnational crime-terrorism nexus, no country remains isolated, such distinction becomes increasingly problematic. Here, however, lies the paradox: there is no way, at least in the near future, for ASEAN to disassemble its preservation of sovereignty principle which, by virtue, renders its collective policy to counter-terrorism inadequate and ineffective.
Is there no way out? This paper contends that in the short-term, a regional policy reorientation could be carried out without drastic change to ASEAN’s much-treasured principle of sovereignty and by utilising, or at least, adjusting the existing mechanisms.
In recent years, a few regional coordinating mechanisms at the regional level which aim ate strengthening coordination amongst its various institutions and mechanisms supporting its three-pillar architecture of ASEAN Community (ASEAN Security Community, ASEAN Economic Community and ASEAN Socio-Cultural Community) and synergising their respective cross-sectoral programmes. In the short-term, synergistic programmes relating to counter-terrorism could be incorporated into the lesser – and less contentious – operational instrument, such as the ASEAN Work Programme to Combat Transnational Crime and the planned ASEAN Comprehensive Plan of Action to Implement the ASEAN Convention on Counter-Terrorism. Both instruments should include more synergistic approach between law-enforcement measures and programmes aimed at dealing with the socio-political aspects of terrorism. This will not address the “national” root causes of terrorism. Yet as regional initiatives are intended to strengthen national measures, this synergistic regional programme could produce the reversal “trickle-down” effect at the national level.
However, in the longer-term when an ASEAN Community is established, a change, or at least a re-interpretation, ASEAN’s principle of sovereignty, seems to be inevitable. Until then, ASEAN cooperation to counter terrorism still has a long row to hoe before it turns into a fully-fledged and substantive and sustainable mechanism that addresses the root causes of terrorism in the region.
Tatik S Hafidz
Visiting research fellow at the Center for Southeast Asian Studies (CSEAS), Kyoto University,
and a former staffer of the ASEAN Secretariat.
She was in charge of facilitating ASEAN cooperation on combating transnational crime, including terrorism.
Kyoto Review of Southeast Asia Issue 11 (December 2009)