THE ROLE OF COLONIALISM AND NEO-COLONIALISM IN SHAPING ANTI-TERRORISM LAW IN COMPARATIVE AND INTERNATIONAL PERSPECTIVES: CASE STUDIES OF EGYPT AND TUNISIA FATEMAH ALZUBAIRI A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW OSGOODE HALL LAW SCHOOL YORK UNIVERSITY TORONTO, ONTARIO January 2017 © Fatemah Alzubairi, 2017 ABSTRACT Contemporary anti-terrorism legislation has raised concerns about the global evolution of law and crime control. National and global anti-terrorism frameworks include broad definitions of terrorist crimes and exceptional measures, which risk violating the rule of law and criminal justice. While these frameworks have been broadened since 9/11, the experience of the Arab world shows that wide- sweeping anti-terrorism frameworks existed well before this time. This dissertation investigates the origin of current anti-terrorism laws and measures, arguing that colonialism and neo-colonialism contributed to the shaping of counter-terrorism law and policy in two case studies: Egypt and Tunisia. The investigation considers the counter-insurgency experience of Egypt and Tunisia under British and French colonialism. Colonial methods of crime control included militarism and exceptionalism, and these approaches are still used in post-colonial Egypt and Tunisia not only to bring criminals to justice, but also to suppress opponents in the name of national security and counter-terrorism. The neo-colonial influence, particularly in the imposition of global anti-terrorism obligations by the UN Security Council and FATF is investigated. These global obligations require the criminalization of terrorism financing and speech related to terrorism, with the establishment of an executive-like mechanism that allows blacklisting individuals and groups, freezing their funds, and restricting their travel, all of which have become part of Egypt and Tunisia’s anti-terrorism frameworks. The dissertation investigates whether such neo-colonial measures also have their roots in the colonial experience and are thus an extension of the colonial rationale in the contemporary war on terror. Finally, the dissertation examines the role of authoritarian ambition in Egypt and Tunisia in developing draconian anti-terrorism laws, which empower the government but obstruct the advancement of democratic values and the protection of human rights. ii ACKNOWLEDGMENTS I would like to start off by thanking my supervisor as well as all the committee members; Professor Liora Salter for her support and patience. Her all-important instructions took this dissertation to a different level; Professor Kent Roach whom I consider my mentor in law and human rights. It is due to his ongoing support as well as expert guidance that this dissertation came into existence. His knowledge, wisdom, and love of his students and humanity as a whole both inspired and enriched this dissertation and my view of life; Professor Sabal Alnasseri for his helpful insights and valuable intellectual perspectives on countless issues; Professor Gus Van Harten for his approval and wise views. Last, but surely not least, I am grateful to my parents Fakhriya Alharbi and Hussian Alzubairi, who supported me throughout my life and this isolating yet fascinating journey; To my brother Hamad Alzubairi for his everlasting gentle care. My family’s love and encouragement are behind my persistence and passion. iii TABLE OF CONTENTS ABSTRACT…………………………………………………………………….…………………………ii ACKNOWLEDGMENTS………………………………………………………………………………..iii TABLE OF CONTENTS...........................................................................................................................iv INTRODUCTION…………………………………………………………………………………………1 A note on terminology……………………………………………………………………………………..2 (Neo)-colonialism and counter-terrorism……………………………………………………………..…3 Purpose and thesis question………………………………………………………………………………6 Case studies: Egypt and Tunisia....................................................................................................................9 Methodology…………………………………………………………………………………………...…11 The historical approach…………………………………………………………………………………...12 The comparative legal approach.................................................................................................................13 Materials......................................................................................................................................................14 Introductory analysis…………………………………………………………………………………….19 The notion of terrorism……………………………………………………………………………………19 The colonial rationale and its legacy……………………………………………………………………...22 The colonial heritage of the pre-emptive approach in defining terrorism………...………………………26 The neo-colonial influence in expanding terrorism-related crimes……………………………………….28 CHAPTER 1 ON IMPERIALISM, COLONIALISM, AND NEO-COLONIALISM………………35 Background on the notions of imperialism, colonialism, and neo-colonialism……………………….38 The common features of imperialism, colonialism, and neo-colonialism…………………………….43 The economic aspect………………………………………………………………………………………44 Centralization……………………………………………………………………………………………..48 Global centralization………………………………………………………………………………………53 Militarism………………………………………………………………………………………………….54 iv Militarism during colonialism……………………………………………………………………………..57 Militarism during neo-colonialism………………………………………………………………………...59 Exceptionalism and emergency powers…………………………………………………………………...62 The British experience…………………………………………………………………………………….63 The British experience within its colonies………………………………………………………………...63 Martial law………………………………………………………………………………………………...64 State of emergency……………………………………………………………………………………...…66 The British experience within the United Kingdom………………………………………………………71 The French experience of exceptionalism………………………………………………………………...76 State of siege………………………………………………………………………………………………78 State of emergency (état d'urgence)………………………………………………………………………83 Neo-colonial exceptionalism and the war on terror……………………………………………………….85 Conclusion of chapter: Unequal positions of power…………………………………………………...87 CHAPTER 2 TERRORISM AND COUNTER-TERRORISM AT THE INTERNATIONAL LEVEL: A CHALLENGE IN THE POST-COLONIAL WORLD………………………….……….89 The lack of a definition of “terrorism”…………………………………………………………….…...91 International attempts to define terrorism during the fading of colonialism………………….…….94 The Arab position on defining terrorism within the UN General Assembly……………………..….95 The international definition of terrorism in a neo-colonial era………………………………….…...96 The definition of terrorism post-9/11: The peak of neo-colonialism……………………………..…..99 UN Security Council Resolution 1373 (2001)……………………………………………………….…..103 On the definition…………………………………………………………………………………………105 Counter terrorism financing……………………………………………………………..……………….110 Counter Terrorism Committee (CTC): no emphasis on the definition of terrorism……………………..113 Arab states’ responses to Resolution 1373………………………………………………………………115 v UN Security Council Resolution 1566 (2004): Late guidance on the definition………………………...118 UN Security Council Resolution 1624 (2005): Speech crimes…………………………………………..119 UN Security Council Resolution 2178 (2014): Foreign terrorist fighters……………………………….125 The global threat of the Islamic State (ISIS)……………………………………….…………………….125 The obligations of Resolution 2178: Counter violent extremism………………………………………..127 Conclusion of chapter: Neo-colonial domination of the UN Security Council and FATF…………129 CHAPTER 3 TERRORISM AND COUNTER-TERRORISM IN THE ARAB WORLD………...133 “Terrorism” at an intellectual level…………………………………………………………………....136 Counter-terrorism in Arabic academic literature………………………………………………………..138 The definition of “terrorism” in Arabic academic literature…………………………………………….140 “Terrorism” at a historical-legal level……………………….………………...……………………....143 Communism: The common enemy during colonialism………………….………………………………..145 Islamic terrorism: The common enemy in post-colonialism…………….………………………………..149 The Arab Convention for the Suppression of Terrorism…………………………………………………151 Conclusion of chapter: The leadership of Egypt……………………………………………………...160 CHAPTER 4 THE COLONIAL AND NEO-COLONIAL EXPERIENCE IN EGYPT…………...163 Employing the four perspectives…………………………………...………………………………….163 The French occupation (1798–1801)…………………………………………………………………….164 Informal imperial control………………………………………………………………………………...169 Scientific expeditions and control through “knowledge” (1798–1920s)………………...……………....170 Political and economic control (1850s–1870s)…………………………………………………………..174 The British occupation (1882–1952)…………………………………………………………………….176 The British legacy of martial law………………………………………………………………………...179 The British legacy of special courts……………………………………………………………………...181 vi Post-colonialism: Colonial heritage blending into local authoritarianism……………….……………..183 Neo-colonialism: Economic dependence and political submission……………………………………...185 Conclusion of chapter: Authoritarian ambition as an additional perspective……………………...187 CHAPTER 5 COUNTER-TERRORISM IN EGYPT………………………………………………..190 Laws and measures regarding national security: The influence of colonialism……………………191 The Penal Code and its amendments………………………………………………….………………….192 Rebellion and sabotage……………………………………………………………….…………………..193 Sedition…………………………………………………………………………………………………..197 Exceptionalism and militarism…………………………………………………………………………...199 Law no. 162 of 1958 Concerning the State of Emergency…………………………….…………………200 The application of special courts……………………………………………………….………………...203 The emergence of the term “terror” during the war on communism……………………………….207 The Egyptian anti-terrorism approach in a neo-colonial era: The peak of authoritarianism……..215 Evaluating the Egyptian anti-terrorism legislation…………………………………………………..220 Law no. 97 of 1992 (Penal Code)………………………………………………………………………..220 Law no. 8 of 2015 Regarding Regulating Terrorist Entities and Terrorists……………………………..226 Anti-terrorism Law no. 94 of 2015.............................................................................................................230 The definition of “terrorism”………………………………………………………….………………….231 Speech related to terrorism…………………………………………………………….…………………235 Terrorism financing………………………………………………………………………………………239 Procedural regulations……………………………………………………………………………………241 Conclusion of chapter: Colonial heritage and neo-colonial approval of authoritarianism...............244 CHAPTER 6 THE COLONIAL AND NEO-COLONIAL EXPERIENCE IN TUNISIA…………246 Employing the five perspectives………………………………………………………………………..246 vii Informal imperialism: Political and economic control (1850s–1870s)………………………………….247 French protectorate of Tunisia (1881–1956)…………………………………………………………….249 The French legacy of censorship………………………………………………………………………...252 The French legacy of state of siege and military courts………………………………………………....255 Post-colonialism: Centralization of a “Westernized” authoritarian regime………..…………………..258 Neo-colonialism: Economic dependence and political submission……………………………………...262 Conclusion of chapter: Direct French transplanting of laws and measures………………………..263 CHAPTER 7 COUNTER-TERRORISM IN TUNISIA………………………………….…………..265 Laws and measures regarding national security: The influence of colonialism……………………266 The Penal Code……………………….………………………………………………………………….267 Plotting and incitement…………………………………………………………………………………..267 Sabotage and rebellion/insurgency………………………………………………………………………270 State of emergency and military courts…………………………………………………………………..273 The Tunisian anti-terrorism approach in a neo-colonial era: The peak of authoritarianism..……276 Evaluating the Tunisian anti-terrorism legislation…………………………………………………...279 Counter-terrorism prior to 2015…………………………………………………………………………279 Law no. 26 of 2015 regarding Anti-terrorism and Money-laundering…………………………………..281 The definition of “terrorism”…………………………………………………………………………….281 Speech related to terrorism………………………………………………………………………………284 Terrorism financing………………………………………………………………………………………286 Procedural regulations……………………………………………………………………………………288 Conclusion of chapter: Colonial heritage and neo-colonial approval of authoritarianism………..290 CONCLUSION AND ANALYSIS …………………………………………………………………….292 BIBLIOGRAPHY……………………………………………………………………………………....322 viii INTRODUCTION This dissertation investigates the link between colonialism and counter-terrorism, particularly in the Arab world. This is done through showing 1) the colonial rationale in crime control in the arena of national security, and 2) the development of this logic within Egypt and Tunisia during and after colonialism. There are countless studies on the topic of terrorism as well as colonialism and neo- colonialism. Combining the two topics of (neo-)colonialism and counter-terrorism is the substance of this dissertation. To break down the correlation between these topics, the dissertation suggests that colonialism has had an impact on shaping the post-colonial legal and punitive systems, which extend to counter-terrorism. In addition, colonialism affected the neo-colonial distribution of power, in which the West, particularly through the United Nations (UN) Security Council, dominates the global war on terror by promoting the adoption of broad anti-terrorism laws without taking into account the progress of democracy or human rights within the post-colonial world. The factor of neo-colonialism is examined through addressing the role of the major Western powers and supra-national bodies, above all the UN Security Council, in remapping the global war on terror. The dissertation argues that these powers practice their authority primarily through issuing Security Council resolutions. The Security Council has introduced measures requiring non-violent acts to be treated as terrorism-related crimes. Such acts include speech that apologizes for terrorism and funding terrorism. Terrorism financing, in particular, has become a part of most, if not all, national security laws. Other counter-terrorism measures promoted by the Security Council, such as listing and travel restrictions, are increasingly becoming part of many national security policies. 1 The global nature of terrorism and counter-terrorism requires a comprehensive investigation of power relations. This dissertation examines the relationship between Western influence, whether under colonialism or neo-colonialism, and law, particularly counter-terrorism law in the Arab world. This dissertation focuses on the Arab world, which is, on the one hand, a hostile producer of terrorist organizations, and on the other, a leader in countering “terrorism.” This dissertation tracks the roots and development of counter-terrorism by analysing anti-terrorism and national security legislation and measures in two cases, Egypt and Tunisia. The dynamic changes in the Arab world, particularly the so-called Arab Spring and the emergence of new and more radical terrorist organizations, suggest the failure of the Arab policies of everlasting strict anti-terror measures and national security policy. A note on terminology The term “colonialism” in its classical meaning refers to the European political occupation and expansion in the rest of the world that spread widely with the start of World War I. Even though similar occupations have been carried out for thousands of years, I limit the scope of this investigation to the European imperial mission of the nineteenth and twentieth centuries, with a focus on British and French colonialism. Despite the fact that other powers, like Russia, Japan, and Turkey, were all empires that expanded their land by colonizing other territories, the significance of Western imperialism is in its present impact over the globe. The colonial experience of Britain and France is complex and vast: together they controlled over 31 percent of world land, whereas the Russian Empire controlled 16 percent. One of the most important features of Western colonialism is that it successfully spread capitalism as the dominant economic system worldwide. This economic aspect remains active in the neo-colonial era. 2