Bali Counter-Terrorism Process
Report of the Australian and Indonesian Co-Chairs
August 2006
I. Introduction
1. In February 2004, the Foreign Ministers of Australia and Indonesia co-chaired the Bali Regional Ministerial Meeting on Counter-Terrorism (BRMMCT) in Indonesia. The meeting was attended by both foreign affairs and law enforcement Ministers, or their representatives, from 25 countries and observers from a number of international organisations.
2. This landmark meeting built on already substantial political momentum behind counter-terrorism efforts in South East Asia. Ministers resolved to identify new ways of enhancing counter-terrorism collaboration, particularly in the areas of law enforcement, information sharing and strengthening legal frameworks. The meeting established two working groups - the Legal Issues Working Group (LIWG) and the Ad Hoc Working Group of Law Enforcement Practitioners, also known as the Law Enforcement Working Group (LEWG) - to meet on an ad-hoc basis with a view to achieving these goals. The BRMMCT and the ongoing work of these Working Groups form the 'Bali Counter-Terrorism Process'. The governments and international organisations participating in the Bali Counter-Terrorism Process ('the Participants') are listed in the Annex to this report.
3. Under Indonesian chairmanship the LEWG was to bring together senior law enforcement officials to share operational experience and exchange information, including on criminal intelligence. The LIWG, chaired by Australia, was to identify areas for the improvement of, and assistance to strengthen, regional legal frameworks.
4. Since the BRMMCT, the need for countries in the region to work more closely has been underscored by further terrorist attacks which have affected a number of participant countries and their nationals. Terrorist networks continue to plan and conduct operations, to recruit, train and raise funds, and to collaborate with each other. The continued strength and adaptability of these groups underlines the threat that terrorism continues to pose to our shared interest in ensuring peace, stability, security and economic prosperity in the South East Asian Region and beyond.
5. This report takes stock of the diverse achievements of the Bali Counter-Terrorism Process in the two years since the BRMMCT. It sets out the major activities and outcomes of the LEWG and the LIWG (including its international legal cooperation and criminalisation streams), which have contributed significantly to the region's capacity to prepare for, counter and respond to the terrorist threat. It identifies a number of key areas for ongoing work by Participants individually, and in collaboration with each other, through existing mechanisms or any new arrangements that can add value to the region's counter-terrorism efforts.
II. Overview of the major activities and outcomes of the Bali Counter-Terrorism Process
Legal Issues Working Group on Counter Terrorism (LIWG)
6. Participants at the first meeting of the LIWG held in Canberra in August 2004 agreed that the tasks set by Ministers were best addressed in two streams: an international legal cooperation stream coordinated by Thailand and a criminalisation stream coordinated by Japan. The work of these two groups, which is covered in more detail below, was informed by the results of a comprehensive questionnaire on the level of ratification and implementation by LIWG Participants of the 12 (now 13) universal counter-terrorism instruments and related Security Council resolutions, especially Resolutions 1267 and 1373 and their successor resolutions. The implementation of these instruments provides a sound benchmark for assessing the adequacy of national legal frameworks for countering terrorism and creates the jurisdiction needed to prosecute those accused of terrorist activity.
7. The questionnaire results provided valuable insights into the gaps in the region's legal framework for responding to the terrorist threat and, in turn, where capacity-building assistance to fill those gaps might best be directed. For example, results indicated that 12 countries were yet to implement five or more of the 12 (now 13) universal counter-terrorism instruments in their domestic law, of which four countries had yet to implement any of these instruments. While progress has been made since the survey was conducted in mid-2004, this area remains a weak link in the region's capacity to prevent and respond to terrorism.
International Legal Cooperation Stream
8. The first meeting of the international legal cooperation stream, held in Bangkok in January 2005, helped to raise awareness of the principles and processes underpinning mutual legal assistance (MLA) and extradition. Discussions covered a range of fundamental issues including double criminality, reciprocity, the scope of political offences and potential obstacles to cooperation resulting from different interpretations of these requirements. The impediments to cooperation posed by different policies reflected in domestic legislation on issues such as the death penalty were also discussed.
9. Despite the different legal traditions of LIWG member countries, the Bangkok workshop highlighted the many similarities in the law and practice of participating countries for international legal cooperation. For example, it was found that most countries adopted the more flexible conduct-based test for satisfaction of the double criminality requirement rather than one focused on a correspondence of offence elements. Even those countries which still used a list-based approach to extraditable offences usually had a provision which enabled assistance to be provided for non-listed offences if double criminality was satisfied. Where there were apparent differences between legal systems or national policies which had the potential to impede cooperation, such as in cases involving the death penalty, ways of resolving these impediments were canvassed, for example, an undertaking could be given that the death penalty would not be carried out. These issues are, however, likely to be more significant in terrorism cases as countries are less likely to give a death penalty undertaking in cases involving a serious terrorism offence.
10. The meeting noted that, in accordance with the universal counter-terrorism instruments, terrorism offences are not to be regarded as political offences for the purposes of extradition or mutual legal assistance, and that accordingly, extradition and mutual legal assistance may not be refused for such offences on this ground. Moreover, the meeting also noted that the universal counter-terrorism instruments adopt the principle "aut dedere aut judicare" ("either extradite or prosecute"), which requires a Requested Party to prosecute a person where it refuses to extradite the person on the ground that the person is a national of the Requested Party or on any other ground.
11. While some participant countries have seized the initiative to prioritise the enactment of legislation governing MLA and extradition, the Bangkok seminar also highlighted the fact that some did not yet have such legislation. The absence of extradition and MLA legislation represents a significant impediment to effective international cooperation in the investigation and prosecution of terrorism and other transnational criminal activities. LIWG members and other organisations with the relevant expertise and resources were urged to help countries develop MLA and extradition legislation in order to close this gap.
12.Following on from the Bangkok workshop, the second workshop of the international legal cooperation stream held in June 2005 in Phuket directed efforts to harmonising practice in international legal cooperation by developing a set of model checklists and draft letters of request for MLA and extradition. These documents reflected the degree of common practice among the Participants and should serve as a useful guide to practitioners when seeking legal cooperation from other countries. These documents were used in a joint LIWG-LEWG regional counter-terrorism training workshop held at the Jakarta Centre for Law Enforcement Cooperation (JCLEC) in December 2005 (discussed in more detail below).
Criminalisation Stream
13. Reflecting the importance of addressing terrorist financing as a means of preventing possible terrorist activities and of detecting and prosecuting those involved in terrorist activities, the first meeting of the criminalisation stream held in Tokyo in December 2004 focused primarily on the Terrorist Financing Convention. Discussion covered the key elements of the Convention and the policy and resource challenges involved in its implementation. These included the significant resources required to establish a Financial Intelligence Unit and the training of officials to monitor and analyse financial flows. The need for further capacity-building assistance in this area was highlighted.
14. Participating countries were reminded that reliance on existing offences in their general criminal laws was not sufficient implementation of the universal counter-terrorism instrument obligations, because of the need to satisfy the dual criminality requirement for extradition and in some cases mutual legal assistance. Implementation in the same terms as the conventions, however, would ensure harmonisation of terrorism offences across jurisdictions and underpin more effective legal cooperation. The seminar also highlighted the fact that the creation of specific terrorism offences in line with universal counter-terrorism instruments would satisfy the requirement that States exercise jurisdiction in a broad range of circumstances - something the general criminal law of most countries does not provide.
15. Japan hosted a second seminar in January 2006 that focused on all 13 universal counter-terrorism instruments and relevant Security Council Resolutions. Australia, the United States and Japan shared their experiences in implementing these instruments. Other Participants reported on the actions their countries had taken to ratify and implement their international counter-terrorism obligations since December 2004. Discussion of the criminalisation of terrorist activity was aided by a recent study prepared by the United Nations Office on Drugs and Crime (UNODC) that reviewed the status of counter-terrorism legal provisions and practices in seven South East Asian countries, highlighting in particular potential shortcomings. Small group discussions were held to identify the gaps and challenges countries currently faced, together with their goals for ratification and implementation of the universal counter-terrorism instruments in the coming 12 months. The resulting outcomes document, attached to the meeting summary, clearly indicated how countries proposed to enhance their anti-terrorism efforts and where donor assistance could most usefully be directed.
16. During the seminar, several joint recommendations and suggestions were made, including that participating States criminalise all relevant conduct pursuant to the universal counter-terrorism instruments and relevant Security Council Resolutions, including the financing and incitement of terrorism. The importance of collaboration between States was stressed, for example by establishing exchanges of governmental experts to share experiences of legislating against terrorism.
17. Further, countries were urged to establish efficient and effective regimes for legal cooperation. Participants also called upon donors to develop national and sub-regional programs for the delivery of technical assistance for the ratification and implementation of the universal counter-terrorism instruments.
Law Enforcement Working Group (LEWG)
18. The LEWG was established to enable regional law enforcement agencies to share operational experiences, formulate best practice models for fighting terrorism, develop a more effective information base and improve the flow of criminal intelligence among countries of the region. The Group was to also provide practical guidance regarding the operational focus and activities of the joint Australian and Indonesian law enforcement cooperation initiative known as the Jakarta Center for Law Enforcement Cooperation (JCLEC), which was opened in Semarang, Indonesia in July 2004.
19. JCLEC was established to facilitate capacity building and operational support to law enforcement agencies from all regional countries. It has coordinated and facilitated a range of training programs, including seminars and workshops, the success of which has been underpinned by the strong cooperation developed between the law enforcement agencies of Australia and Indonesia. JCLEC has also been committed to the development of complementary relations with other relevant regional bodies, such as the South-East Asian Regional Centre for Counter Terrorism in Kuala Lumpur and the International Law Enforcement Academy in Bangkok.
LEWG Meeting August 2004
20. The first meeting of the Working Group of Law Enforcement Practitioners took place on 12-13 August 2004, in Bali. The meeting provided practitioners with an opportunity to share operational experiences on countering terrorism. Presentations produced a productive exchange on terrorism financing, investigation, intelligence sharing and inter-agency coordination. The meeting also identified useful mechanisms for improving national and international law enforcement efforts.
21. The meeting concluded with Participants making a number of joint recommendations which included follow-up work in areas such as: information sharing; improvements in capacity building for all participating countries; skills transfer between countries; investigation of terrorist financing and sharing information about the various tactics and standards applied across different jurisdictions. Participants were also encouraged to identify gaps in their own information/intelligence sharing regimes, particularly those dealing with privacy.
22. Further recommendations underscored the importance of: sharing operational and technical techniques; assisting in training; sharing of financial intelligence; storage and retrieval of intelligence data; enhancing post incident investigation techniques; exchanges of expertise and trainees; exchanges of experiences and capacity-building in inter-agency coordination, community policing, and efforts to deter cyber-terrorism. The Indonesian chair of the LEWG invited Participants to organise further meetings on specific topics that reflected countries' best practice and could allow the LEWG to develop best practice models.
LEWG Workshop July 2005
23. A LEWG workshop on "Terrorism Prevention - Law Enforcement Information Sharing" was convened by Indonesia and Australia at JCLEC on 18-21 July 2005. Senior police from 23 national jurisdictions attended the workshop, which allowed in-depth discussion on models and methods of information sharing at national, bilateral and multinational levels, as well as domestic requirements affecting international cooperation. Participants agreed on the critical importance of timely and effective sharing of criminal intelligence and information in investigating and prosecuting terrorists.
24. Senior representatives identified practical ways to improve cooperation and information sharing to ensure agencies operated as cohesively and comprehensively as possible in locating, tracking and incarcerating terrorists. The workshop agreed that strong and effective centralisation and coordination of information on preventing and responding to terrorism was essential. There was also recognition that information sharing was important at the global, as well as regional, levels. An array of challenges were identified, in particular varying levels of national capacity to collect and share information, as well as differing requirements of domestic legal frameworks. Participants recognised the need to work together more closely and imaginatively within such constraints in order to deal effectively with the terrorist threat.
Joint LIWG-LEWG Counter-Terrorism Workshop December 2005
25. In an effort to draw together and build on the outcomes of the workshops conducted under the LIWG international legal cooperation stream and the LEWG workshop on law enforcement information sharing, Australia and Indonesia co-chaired a joint workshop at JCLEC from 12-14 December 2005. The workshop aimed to strengthen the capacity of police to exchange information and of government agencies to initiate and manage requests for MLA and extradition in the context of counter-terrorism related investigations and prosecutions.
26. The workshop achieved its objectives through a series of presentations and syndicate discussions based on a hypothetical terrorism scenario, which drew out the steps involved and the legal, policy and operational issues that needed to be considered in initiating and managing requests for legal cooperation. Participants exchanged their respective experiences of running investigations involving terrorism and the legal cooperation that is often required in such matters.This helped Participants gain a better understanding of the circumstances in which police to police channels can be used, and of MLA and extradition regimes in the region. The workshop also promoted the importance of cooperation and collaboration, both internally between relevant agencies and across national borders, to ensure the efficient and effective management of information exchange and extradition processes. This outcome was facilitated by the presence of police, prosecutors and legal officials from 22 participating countries and officials from a number of international organisations. In addition, the workshop was useful for relationship-building with Participants expanding their network of working-level contacts.
III. Areas requiring further work
27. While both the LIWG and the LEWG have produced useful outcomes to date, the challenge to strengthen legal and law enforcement regimes in the region to combat the threat from terrorism remains substantial. This section of the report highlights outstanding gaps in the region's response, which require ongoing attention.
Legal issues
Ratification of universal counter-terrorism instruments
28. Priority should be given to ratifying outstanding universal counter-terrorism instruments. In addition to being a mandatory requirement for UN members under UNSC Resolution 1373, ratification has important legal implications, including as a legal basis for the extradition of offenders accused of committing acts falling within the scope of the instruments. It also sends a strong message to the wider international community that countries in the region are serious about combating the threat from international terrorism and are willing to cooperate with their neighbours.
Legislation to implement the universal counter-terrorism instruments and resolutions
29. States also need to give higher priority to enacting laws to implement the 13 universal counter-terrorism instruments and relevant Security Council resolutions where this has not already been done. Such laws would create a comprehensive legal framework to enable the effective prosecution of terrorists and their supporters. Avoiding legislative 'catch-up' and closing jurisdictional loopholes through which terrorists might escape prosecution are vital to strengthening the region's counter-terrorism response. Ease of travel across national borders heightens the need for States to enact laws to enable extradition or prosecution of terrorists located in their jurisdictions.
Complementary laws
30. Procedural laws that support the investigation and prosecution of terrorism offences and that reflect the contemporary security environment should be developed or strengthened where appropriate. These laws might cover issues such as obtaining evidence and the powers of law enforcement and the wide range of other government agencies (including border control and financial authorities) involved in counter-terrorism work. These agencies need effective tools, such as the power to stop, search, question and detain suspects, and confiscate assets, if they are to prevent terrorist attacks and dismantle terrorist networks. Further consideration could also be given to means of effectively regulating items - such as explosives, their precursors, or related technologies - that are used to make terrorists' weapons. In developing laws aimed at combating terrorism, an appropriate balance should be struck between security needs and respect for democratic values, human rights and due process of law.
Measures to strengthen international cooperation
31. There remains considerable scope to strengthen international legal cooperation arrangements. Improvements in the exchange of information between countries and enhanced provision of evidence through MLA could help to support prosecutions and prevent terrorist attacks. Where relevant, LIWG members should establish or strengthen their legal frameworks for MLA, extradition, asset freezing and proceeds of crime. Conclusion of the Treaty on Mutual Legal Assistance in Criminal Matters among like-minded ASEAN Countries in November 2004 represents a welcome development. It will be important for countries that are party to the Treaty to enact legislation so they can implement it effectively. Countries and organisations with the capacity to provide training for practitioners in the use of these tools are encouraged to do so.
Training for prosecutors and judges
32. Prosecutors and judges have a vital contribution to make to the fight against terrorism in the region. More needs to be done to develop the technical skills and terrorism-related knowledge of prosecutors to manage complex prosecutions, for example in the preparation of charges and prosecution briefs, and the presentation and use of evidence. Prosecutors and judges involved in terrorism cases also need to have a sound knowledge and understanding of the relevant criminal laws as well as laws governing procedural aspects of cases.
Technical and capacity-building assistance
33. Continuing external assistance will be essential to strengthening counter-terrorism legal regimes in the region. Countries and organisations that have the expertise and capacity to assist are strongly encouraged to do so. Assistance programs and activities should have a strong, practical focus, reflect the priority needs of the recipient country, aim to produce concrete outcomes, and be coordinated with the activities of other donors to avoid duplication. Donors should make full use of existing bilateral and multilateral mechanisms (such as the UN Counter-Terrorism Committee, the G-8 Counter-Terrorism Action Group and the APEC Counter-Terrorism Task Force) to share information about their technical and capacity-building assistance in areas related to counter-terrorism.
34. Areas in which assistance is required include: legislative drafting and advice on creating the necessary offences and jurisdiction, as well as regimes for extradition and mutual legal assistance; assistance with establishing financial intelligence units; training of personnel to analyse financial data and implementation of counter-terrorism related laws by operational agencies; the preparation and management of MLA and extradition requests; training for prosecutors and judges involved in complex transnational crime cases; and anti-terrorist financing. Exchanges, visits and other measures to build cross-border institutional linkages between legal agencies and prosecutorial services are valuable in underpinning operational and capacity-building activities. Measures to enhance cooperation and coordination between prosecutors and investigators are also desirable.
Law enforcement
Transnational terrorist movements and links
35. The evolution of the regional terrorist threat since the 2004 BRMMCT has highlighted the need to do more to address transborder movements of individuals, funding and other material involved in terrorist operations and support activities, including training. Maritime transborder movements are of particular concern to the countries of South East Asia and are inherently difficult to address. More work needs to be done to strengthen regional states' capacities in this area, including through: more effective maritime surveillance and border control systems and technologies; more timely and closer communications and coordination among key agencies at local, national and international levels; and strengthened response capabilities when terrorist-related movements are identified.
36. The persistence of links and collaboration between terrorist groups throughout the region underlines the need to further strengthen the capacities of law enforcement agencies to obtain, manage, analyse and share - where appropriate and consistent with legal frameworks - counter-terrorism information. Developing effective databases (including on terrorist networks, methodologies and bomb data) and mechanisms for appropriately sharing, bilaterally or on a wider basis, the information they contain remains a key challenge. International cooperation in investigating transnational terrorist activities is also important and should be further encouraged, subject to jurisdictional requirements. International counter-terrorism exercises (including discussion exercises) based on realistic scenarios are particularly useful for testing and enhancing capacities and coordination arrangements.
Inter-agency coordination
37. LEWG activities to date have involved mainly law enforcement officers, in the absence of other key players in counter-terrorism, such as customs and immigration officers. Efforts to counter the terrorist threat would be greatly enhanced by closer cooperation between a broad range of agencies, including defence, coastguard, customs, transport security and immigration authorities. This is particularly important in combating transborder terrorist movements, improving responses to terrorist incidents and developing and implementing effective national counter-terrorism policies. Participants are encouraged further to share, through appropriate mechanisms, information and experiences with other agencies in these areas.
Awareness raising and the ideological dimension
38. There was recognition among LEWG Participants of the need to complement traditional law enforcement responses to terrorism with broader-based, proactive efforts aimed at addressing the factors driving individuals to involvement in terrorism. Law enforcement agencies could play a role in areas like community policing, but other government agencies, educational and religious institutions and community groups also need to be closely engaged. In particular, further efforts to raise public awareness of the nature of the terrorist threat, the methods and ideologies exploited by terrorist groups, and the impact of terrorism would be valuable. Participant countries should consider doing more to compare and coordinate their respective efforts to address violent radicalism, terrorist propaganda and other factors that can contribute to terrorism.
Incident response and WMD terrorism
39. While a number of regional forums have sought to strengthen international efforts to respond to natural disasters and public health emergencies, less work has been done specifically to address emergency management in relation to terrorist incidents. There is scope for further efforts, taking into account varying levels of threat and capacity throughout the region, to strengthen national capabilities and international coordination in responding to serious terrorist incidents. These efforts should address contingencies including mass casualty attacks involving 'conventional' terrorist bombings, as well as acts of chemical, biological, radiological and nuclear (CBRN) terrorism. Specific initiatives might include the establishment of national centres to analyse terrorist bombs, CBRN threats and facilitate liaison with international counterparts. Governments could also cooperate more closely in strengthening policy responses aimed at preventing terrorists' acquisition and use of CBRN devices. Such work would involve a range of military and/or civilian agencies beyond law enforcement.
IV. Conclusion
40. The Bali Counter-Terrorism Process has demonstrated that a regionally-focused forum dedicated to confronting the terrorist threat can make a significant contribution to global counter-terrorism efforts. It has underscored the resolve of governments to meet this threat on all fronts through practical measures at the domestic and international levels.
41. Through the targeted efforts of the two Working Groups over eight separate meetings and seminars, Participants have been able comprehensively to take stock of counter-terrorism capacities in the key legal and law enforcement sectors. They have not only identified priorities for further work to strengthen these capacities, but also made considerable progress in developing practical solutions to some of the challenges facing more effective national and international counter-terrorism efforts. Significantly, the process has also strengthened bonds of understanding, shared purpose and cooperation between counter-terrorism practitioners from a wide range of participating governments and organisations.
42. While Australia, Indonesia, Japan and Thailand have played leading roles in organising the nine regional meetings under the auspices of the Bali Counter-Terrorism Process, the enthusiastic contributions of other regional countries at these meetings has underpinned their success.Capitalising on the momentum this process has achieved over the last two years will depend on the active involvement of all those who share a commitment to the broader goals of the process.Participants are encouraged to explore resourceful, flexible and practical ways to build on the progress made so far. While the Working Group structures may provide a useful basis for future work, they should not exclude individual Participants developing alternative arrangements among Participants or different subsets of Participants, according to the particular task at hand, and the varying capacities and needs of those involved.
43.Similarly, Participants should take the opportunity to advance the broad goals of the Bali counter-terrorism process through other existing regional fora and institutions where these provide an appropriate vehicle. These could include, inter-alia, the Association of Southeast Asian Nations (ASEAN), the Asia Pacific Economic Cooperation (APEC), the ASEAN Regional Forum (ARF), and the Pacific Islands Forum (PIF), the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) and the Asia-Pacific Group on Money Laundering (APG). JCLEC will continue to provide structured training for law enforcement practitioners from the region and a venue for various specialised regional workshops, with a strong focus on counter-terrorism. SEARCCT will remain an important venue for dedicated counter-terrorism cooperation involving a wide range of policy makers and practitioners. ILEA's work will continue to build law enforcement capacities of broad relevance to counter-terrorism work.
44. Such regional work will continue to build on and complement counter-terrorism efforts at the national, bilateral, sub-regional and multilateral levels. In keeping with the spirit of the Bali Counter-Terrorism Process, the emphasis should be on practical collaboration and concrete outcomes. Structures and formal processes are a means to these ends, not ends in themselves
45. A sobering array of regional counter-terrorism challenges remain. However, the Bali Counter-Terrorism Process has shown that these are not insurmountable when the region and its friends work as one to confront the terrorist scourge. This shared commitment, and the habits of practical cooperation fostered by the Bali Counter-Terrorism Process, provide a strong foundation on which to continue to work together toward securing peace, stability, security and economic prosperity in our region and beyond.
Annex: list of Bali Counter-Terrorism Process participants
Australia, Brunei Darussalam, Cambodia, Canada, the People's Republic of China, Fiji, France, Germany, India, Indonesia, Italy, Japan, Laos, Malaysia, Myanmar, the Netherlands, New Zealand, Papua New Guinea, the Philippines, the Republic of Korea, the Russian Federation, Singapore, Thailand, Timor-Leste, Vietnam, the United Kingdom, the United States of America and representatives of the European Union.
Senior representatives of relevant United Nations committees, the ASEAN Secretariat, the Pacific Islands Forum Secretariat, the APEC Secretariat, the APG Secretariat and Interpol participated as observers.
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