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Building Peace in Permanent War: Terrorist Listing & Conflict

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Building Peace in Permanent War: Terrorist Listing & Conflict Building Peace Building Peace in Permanent War Terrorist Listing and Confl ict in Permanent War Transformation Published by Transnational Institute International State Crime Initiative Supported by Berghof Foundation and the Joseph Rowntree Charitable Trust Louise Boon-Kuo Ben Hayes Vicki Sentas Gavin Sullivan Copyright © 2015 by Louise Boon-Kuo, Ben Hayes, Vicki Sentas, Gavin Sullivan This publication is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 license. You may copy and distribute the document, only in its entirety, as long as it is attributed to the authors and used for non-commercial, educational, or public policy purposes. ISNN 978-90-70563-43-1 ISNN 978-90-70563-45-5 (e-book) Published by International State Crime Initiative School of Law, Queen Mary University of London Mile End Road London E1 4NS United Kingdom statecrime.org/ Transnational Institute PO Box 14656 1001 LD Amsterdam The Netherlands Email: [email protected] www.tni.org Supported by the Berghof Foundation and the Joseph Rowntree Charitable Trust Authors: Louise Boon-Kuo, University of Sydney, [email protected] Ben Hayes, Statewatch, [email protected] Vicki Sentas, University of New South Wales, [email protected] Gavin Sullivan, University of Amsterdam, [email protected] Recommended citation: Boon-Kuo, L., Hayes, B., Sentas, V and Sullivan, G. (2015). Building Peace in Permanent War: Terrorist Listing & Conflict Transformation. London; Amsterdam: International State Crime Initiative; Transnational Institute. Layout and design: Hans Roor, Jubels bv, Amsterdam Printing: Jubels bv, Amsterdam Building Peace in Permanent War Terrorist Listing and Conflict Transformation Copyright © 2015 by Louise Boon-Kuo, Ben Hayes, Vicki Sentas, Gavin Sullivan This publication is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 license. Contents You may copy and distribute the document, only in its entirety, as long as it is attributed to the authors and used for non-commercial, educational, or public policy purposes. Preface i ISNN 978-90-70563-43-1 ISNN 978-90-70563-45-5 (e-book) Acknowledgements iii Abbreviations iv Published by International State Crime Initiative Introduction: Peacebuilding In A War Without End 1 School of Law, 1. Scope of the study 3 Queen Mary University of London 2. Selection of case studies 4 Mile End Road 3. Methodology 5 London E1 4NS United Kingdom Chapter 1: Counterterrorism Laws and Peacebuilding 7 statecrime.org/ Introduction 7 1. Global counterterrorism, targeted sanctions and terrorist proscription regimes 8 Transnational Institute 1.1 UN targeted sanctions: the global legal architecture of the war against terror 8 PO Box 14656 (i) Resolution 1373 (2001) and the policy of global proscription 9 1001 LD Amsterdam (ii) Resolutions 1267 (1999), 1390 (2002) and the targeting of global terrorist networks 10 The Netherlands (iii) Resolutions 751 (1992), 1844 (2008) and the targeting of Al-Shabaab 11 Email: [email protected] 1.2 The European Union: a regional approach to countering terrorism 12 www.tni.org 1.3 The counterterrorism laws of nation-states and list-based liabilities 14 (i) Legal liabilities 15 Supported by the (ii) Scope of Prohibited Support: peacebuilding within the net of preemption 17 Berghof Foundation 2. Targeting ‘networks’, catching ‘supporters’ 20 2.1 From compelling compliance to constraint 20 and the Joseph Rowntree Charitable Trust 2.2 Casting the net as widely as possible: preemption and disruption of ‘association’ 21 2.3 Targeting and disrupting peacebuilders: 7 key features 23 Authors: Louise Boon-Kuo, University of Sydney, [email protected] (i) Counterterrorism prohibitions encompass many peacebuilding activities 24 Ben Hayes, Statewatch, [email protected] (ii) Policy concerns about the vulnerability of non-profit organisations 24 Vicki Sentas, University of New South Wales, [email protected] (iii) No specific exemptions for peacebuilders 24 Gavin Sullivan, University of Amsterdam, [email protected] (iv) A global regime: overlapping laws and extraterritorial application 25 (v) The process of listing: intelligence material and executive powers 26 Recommended citation: (vi) A plethora of further lists: practical challenges in identification of legal requirements 27 Boon-Kuo, L., Hayes, B., Sentas, V and Sullivan, G. (2015). (vii) Due diligence and the private sector: expanding the risk based net 28 Building Peace in Permanent War: Terrorist Listing & Conflict Transformation. Conclusion 29 London; Amsterdam: International State Crime Initiative; Transnational Institute. Chapter 2: Transforming Peacebuilding: The Impacts of Listing 31 Layout and design: Hans Roor, Jubels bv, Amsterdam Introduction 31 Printing: Jubels bv, Amsterdam 1. Terrorist listing and peacebuilding: conflicting aims? 32 Contents 1.1 Peacebuilding norms: contrasting approaches to violence 32 (i) Conflict transformation 32 (ii) Liberal peacebuilding 33 (iii) Hybrid peacebuilding 34 2. The impacts of terrorist listing: insights from peacebuilders 35 2.1 Peacebuilders’ decisions to engage or withdraw 35 2.2 Impartiality and neutrality: critical stages in the peace process 38 2.3 Exemptions for peacebuilders: the intensification of listing’s selectivity 39 2.4 Impacts on listed entities: the use of violence and group legitimacy 40 2.5 Impacts on state conflict parties: willingness to engage listed actors in peace talks 43 3. Transforming peacebuilding through counterterrorism listing 44 3.1 The convergence between peace and development as techniques of security 45 3.2 Counterinsurgency, law and conflict 46 (i) Population management to prevent insurgency 47 (ii) Preemptive legal warfare 48 (iii) Listing as counterinsurgency 49 (iv) Tracing the effects of counterterrorism on inclusive peace building 50 3.3 Transforming armed conflicts into terrorism: the question of justifiable political violence 51 (i) Conferral of legal and political status: parties to the conflict 54 (ii) Accountability and responsibility for violence 54 (iii) Non-interference with self-determination and institutionalised violence 56 Conclusion 56 Chapter 3: Conflict Resolution and Counterterrorism in Somalia: The Security-Peacebuilding Nexus 59 Introduction 59 1. Understanding counterterrorism and peacebuilding in Somalia 61 1.1 Origins of conflict and failure of ‘top-down’ peace 61 1.2 The rise of political Islam 62 (i) Islamic awakening and the emergence of AIAI 62 (ii) Al-Qaida in East Africa 63 (iii) Islamic courts and the emergence of Al-Shabaab 64 1.3 Counterterrorism, preemption and immunity through containment 65 (i) Military intervention, targeted killing and counterinsurgency 65 (ii) Failed State doctrine 69 (iii) Targeted sanctions, terrorism lists and counterterrorist financing measures 70 2. Counterterrorism, peacebuilding and the effects of entanglement 73 2.1 Convergence: the ‘Security-Peacebuilding’ nexus 73 2.2 The differential distribution of liability risk 76 (i) Risk aversion and withdrawal 77 (ii) Political immunity and protection 78 (iii) Formal compliance/informal practice: operating in the ‘grey area’ 79 (iv) Indifference and the outsourcing of risk 81 Conclusion 83 Contents Chapter 4: Proscribing Hamas, Punishing Gaza, Paralysing the Peace Process 87 Introduction 87 1. Background 88 1.1 The occupation, the PLO and the Oslo process 88 1.2 Hamas 90 1.3 Designation of Palestinian organisations as terrorist 91 1.4 The “peace process” and the “war on terror” 92 2. The Impact of Hamas’ designation as terrorist on peacebuilders 94 2.1 From sanction to siege: the transformative effects of proscription on peacebuilding in the OPT 95 (i) The exclusion of Hamas and paralysis of the MEPP 97 (ii) Creating proxies for Israeli security 97 (iii) Securitising conflict transformation programs 99 2.2 From silent diplomacy to silencing advocacy: risk aversion, self-censorship and withdrawal 101 2.3 The secure and the securitised: outsourcing, risk management and “due diligence” 105 2.4 Indiscipline and creativity: formal compliance and informal practice 109 Conclusion 110 Addendum (January 2015) 112 Chapter 5: Listing the PKK, Transforming Peacebuilding 113 Introduction 113 1. Background to the conflict 115 1.1 The PKK and the Kurdish movement 116 2. The listing of the PKK: global coercive instruments 117 2.1 Turkey 118 2.2 The international ban of the PKK 119 3. The effects of listing the PKK on conflict transformation 120 3.1 Recognition of the armed conflict: why legitimising and delegitimising the PKK matters 120 3.2 Listing constrains political processes: ceasefires and Track 1 negotiations 121 (i) The Oslo Peace Process 2009-2011 123 (ii) The relationship between peace and security in the aftermath of Oslo 124 (iii) Sanctions against Kurdish negotiators 126 (iv) The entrapment and prosecution of Adem Uzun 127 3.3 The impact of listing the PKK on diaspora Kurds 130 (i) Suppressing terrorist financing 130 (ii) Disrupting the diaspora 131 3.4 The impact of listing the PKK on Kurds in Turkey 132 (i) The KCK Operations and sabotage of the peace process: the largest counterterrorism prosecution in the world? 134 4. Doing justice with peace: INGOs and support for the peace process 136 (i) Recognition that Kurdish human rights violations in Turkey are obstacles to political resolution of the conflict 137 (ii) Acting against impunity: supporting justice work in diverse, intersecting forms 137 (iii) Repeal of Turkey’s Anti-Terror Law has been a key demand from the Kurdish movement and is considered vital to a resolution
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