Following a terrorist attack, governments often feel pressured to bring in more robust counter-terrorism measures. However, there’s little evidence to suggest New Zealand’s new counter-terrorism bill will work, and a real risk that it will cause more harm than good.

Following recommendations contained in The Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019, the New Zealand government has been working towards amending its anti-terrorism provisions. A new Counter-Terrorism Legislation Bill which expands the definition of terrorism, criminalises the intention to commit an act of terrorism, and gives the security forces warrantless surveillance powers is currently making its way through parliament. In the wake of the recent terrorist attack by an Islamic State supporter in New Lynn, pressure has mounted on the government to fasttrack the legislation, with the opposition National Party pledging to support the bill.

Interestingly, Justice Minister Kris Faafoi, at a press conference announcing the proposed new legislation earlier this year, was unwilling to confirm that the legislation would have actually worked to prevent the Christchurch terrorist attacks. Prime Minister Jacinda Ardern made a similar admission following the New Lynn attack: the proposed legislation would likely not have prevented this particular attack. These admissions are astonishing and raise a key question about legislative responses to terrorism: is there any evidence they will actually work to reduce or prevent further acts of terrorism, or could they actually prove counter-productive and harmful?

This week, the world has reflected on twenty years since the beginning of the war on terror. Following the 9/11 attacks and the passing of UN Security Council Resolution 1373, almost every country in the world has passed new counter-terrorism laws. In addition to the thousands of new laws, trillions of dollars have been spent on counter-terrorism wars, drone strikes, enhanced interrogations, preventive detentions, extraordinary renditions, no-fly lists, social media and free speech restrictions, anti-terrorism banking regulations, de-radicalisation countering violent extremism programmes, and many more such measures.

All these measures and all this activity of the past two decades provide us with a huge amount of evidence about the impact and effectiveness of states’ counterterrorism measures. The tragic reality is that to date, there’s little to no evidence that all this effort has made any positive difference, nor have any governments seriously attempted to evaluate whether their counterterrorism laws and measures actually work to reduce terrorism and increase security. As a major study put it, “there is little scientific knowledge about the effectiveness of most counter-terrorism interventions,” and from the evidence the authors were able to locate, “it appears that some evaluated interventions either didn’t work or sometimes increased the likelihood of terrorism and terrorism-related harm.”

In fact, there’s growing evidence that the war on terror and all the accompanying counter-terrorism legislation has not only failed to measurably reduce the number of terrorist groups and attacks, but it has in fact had a negative effect on human rights around the world. In addition to the more than one million people who have died in the war on terror, the tens of millions displaced, and the thousands of others who have been tortured, rendered, and abused, a major study analysing cross-national data has found that the impact of counterterrorism legislation around the world is almost always detrimental to individual and human rights. This assessment is confirmed by the annual reports of most major human rights organisations.

In terms of New Zealand’s proposed new bill, apart from the lack of any evidence that it will actually be effective in practice, there are some serious problems with it in relation to human rights. In the first instance, determining the “intent” to commit an act is notoriously hard to ascertain, especially as individuals can change their mind, and actions which look suspicious through a security lens might actually be quite innocent. In the current climate, where fears of terrorism are high, the subject is highly politicised, there’s zero tolerance for risking an incident, and security officials are encouraged to use their imagination in detecting potential threats, the reliance on imagination by counterterrorism officials can mean that personal and institutional prejudices, as well as political factors, can shape investigations. Consequently, such an approach comes with real risks that ordinary people engaging in ordinary activities can fall under the suspicion of over-eager counterterrorism officials, a situation we have seen numerous times in the United States, the United Kingdom, and elsewhere where Muslims in particular have been profiled and targeted.

In addition, as recent commentators have noted, the security services do not have a good record of working with accurate intelligence or showing accountability for human rights abuses. Moreover, such an approach would require enlisting the public to report suspicious activities. Given the history of racism and Islamophobia in New Zealand, this approach could sow discord between social groups and undermine social cohesion and community resilience, reduce levels of trust in the authorities, and actually hamper police efforts to detect terrorist plans. It’s not difficult to see that similar effects could result from warrantless surveillance powers and the expansion of the definition of terrorism.

Nevertheless, some will argue that protecting society from terrorism requires trading human rights for increased security, and reducing civil liberties is a small price to pay to protect us from acts of terrorism. This argument is not supported by the evidence, particularly when we think of Guantanamo, Abu Ghraib, drone killings, black sites, and all the other ghastly human rights abuses of the last two decades of the war on terror. In fact, a major study has recently found that the violation of human rights in counter-terrorism responses is not only ineffective, but is most often counterproductive because it confirms the narratives of terrorist groups and can provoke further attacks. The truth is that upholding human rights is one of the most effective tools a society has in responding to political violence and should be the cornerstone of government responses.

While there is an understandable political impulse to be seen to be responding vigorously following a terrorist incident, the twenty-year anniversary of the war on terror should give the New Zealand government real pause to consider the potential costs, harms, and mistakes of knee-jerk responses to acts of terrorism. Do they really want to rush through legislation that will most likely be ineffectual, and which could lead to future human rights abuses? One of the recommendations of the Royal Commission of Inquiry into the Christchurch terrorist attacks is that any new counter-terrorism legislation or programmes should be based on high-quality research evidence. The New Zealand government would do well to make this, and the absolute protection of human rights, the guiding principle of any new counter-terrorism measures.

Richard Jackson is the Director of the National Centre for Peace and Conflict Studies at the University of Otago, New Zealand. 

This article is published under a Creative Commons Licence and may be republished with attribution.