Smart Power Thinking in Counter-Terrorism and Counter-Insurgency

Ruthlessness and Sympathy: Smart Power Thinking in

Counter-Terrorism and Counter-Insurgency

Keiran Hardy

A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy.

Faculty of Law

November 2014

PLEASE TYPE THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet

Surname or Family name: HARDY

First name: KEIRAN Other name/s: ANTHONY

Abbreviation for degree as given in the University calendar: PhD

School: LAW Faculty: LAW

Title: RUTHLESSNESS AND SYMPATHY: SMART POWER THINKING IN COUNTER-TERRORISM AND COUNTER-INSURGENCY

Abstract 350 words maximum: (PLEASE TYPE)

In response to 9/11 and in the early stages of the Iraq War, Western governments relied on ‘hard’ coercive strategies for countering political violence that posed significant problems for human rights and the rule of law. Some years later, when it became clear that those coercive strategies would not provide a sustainable solution over the long-term, the same governments developed ‘soft’ policy responses to political violence which were designed to mitigate the excesses of previous years. These soft policy responses are viewed as having the capacity to improve social cohesion and reduce marginalisation, and they are designed to work alongside existing coercive measures.

In combining hard and soft responses in this way, Western governments have created strategies for countering political violence that epitomise Joseph Nye's influential theory of ‘smart power’. Smart power suggests that governments can best achieve their policy objectives by supplementing hard power (coercion, threats and inducements) with soft power. Nye defines soft power as the capacity to influence behaviour through culture, ideology and institutions. This smart power model hinges on three key ideas or premises: (1) hard power and soft power are distinct, (2) soft power is morally preferable to hard power, and (3) hard power and soft power are complementary. The thesis refers collectively to these three ideas as ‘smart power thinking’. What is striking about Nye's theory is that he recognises a range of tensions, problems and complexities underlying each idea, but he largely dismisses these more complex issues in recommending that governments develop smart power strategies.

This thesis critically examines smart power thinking in two separate but related fields: domestic counter-terrorism and foreign counter-insurgency. It does so through four case studies: UK counter-terrorism since 9/11, Australian counter-terrorism since 9/11, the Malayan Emergency of 1948-60 and the Iraq War during the Surge of 2007- 08. The Malayan Emergency provides an important historical case study because it gave rise to the idea that militaries can defeat insurgencies by ‘winning hearts and minds’. Through these case studies, the thesis explores the dangers and downsides of supplementing coercion with soft power. It offers recommendations as to how governments can devise more complex and nuanced smart power strategies that address the shortcomings of smart power thinking.

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iii Abstract

These soft policy responses are viewed as having the capacity to improve social cohesion and reduce marginalisation, and they are designed to work alongside existing coercive measures.

9/11, the Malayan Emergency of 1948-60 and the Iraq War during the Surge of 2007-

08. The Malayan Emergency provides an important historical case study because it gave rise to the idea that militaries can defeat insurgencies by ‘winning hearts and minds’. Through these case studies, the thesis explores the dangers and downsides of supplementing coercion with soft power. It offers recommendations as to how governments can devise more complex and nuanced smart power strategies that address the shortcomings of smart power thinking.

v Acknowledgements

When I first began reading acknowledgements pages, I assumed that the author had done all the work on his or her own, but felt obliged to mention people they knew or happened to be near them along the way, such as those in adjoining offices. I now know that this is emphatically not the case, and that it simply would not be possible to produce a large body of writing without the generous feedback and support of others.

First and foremost I would like to thank my supervisors – Professor George Williams,

Dr Ben Golder and Professor Lucia Zedner – for their incredible generosity and patience. I am enormously grateful for the time they have taken to read my work over the course of several years and to pass on detailed feedback as well as more general advice, insights and wisdom. They offered me intellectual freedom while showing me how to take my early ideas and shape them into a large research project. In doing so, they have taught me how to become a better researcher, writer, and thinker.

I have been incredibly fortunate to complete my PhD as part of a large and close-knit team on Professor George Williams’ Laureate Fellowship on Anti-Terror Laws. I am grateful to each member of the Laureate – George Williams, Fergal Davis, Nicola

McGarrity, Jessie Blackbourn, Svetlana Tyulkina, Tamara Tulich, Rebecca Ananian-

Welsh and Sangeetha Pillai – for their feedback, support, and friendship. In particular,

Nicola McGarrity read more of my work in detail than anybody who is not my supervisor should ever have read. A special thanks also goes to Professor Andrew

Lynch, who has remained a generous mentor since I was an undergraduate student.

vi Thanks are due to many others. The members of my research panel – Professors Jill

Hunter and Martin Krygier, and Dr Fergal Davis – provided valuable feedback and suggestions which helped to shape the final project. The members of the Gilbert +

Tobin Centre of Public Law – including Sean Brennan, Paul Kildea, Rosalind Dixon and Shipra Chordia – provided an even larger community of researchers and teachers in which to complete my PhD. The high standards set by all the members of the

Centre are a constant source of motivation and a reminder that research should be collaborative and contribute to public debate. I gratefully acknowledge the support of the Sir Anthony Mason PhD Award in Public Law, which partly funded my research.

I would also like to thank Vicki Sentas, Alana Maurushat and Fiona de Londras, who provided valuable advice, feedback and opportunities. Other PhD students in the law faculty – Jackie Hartley, Tamara Wood, Susanne Lloyd-Jones, Sally Richards,

Amanda Wilson, Aline Jaeckel and Rob Woods – offered friendship and support, as did the staff and students of the Centre for Criminology at Oxford University, where I was welcomed as a visitor. I would also like to thank Jenny Jarrett and Belinda

McDonald, whose tireless support makes everything run smoothly.

I would not have been able to complete this thesis without the loving support of my family: Garry, Wendy, Lara and Tristan. They push me to reach my potential while reminding me that I should always remain grateful for the opportunities I have received. Universities should provide some formal recognition of any family member or partner who has lived with someone completing a PhD.

vii LIST OF PUBLICATIONS AND PRESENTATIONS

The following publications and presentations arose from the writing of this thesis:

Articles

• ‘Resilience in UK Counter-Terrorism’ (2015) 19 Theoretical Criminology

(forthcoming)

Presentations

• ‘Smart Power Thinking in Australian Counter-Terrorism’, ARC Laureate

Fellowship Work-in-Progress Seminar, Faculty of Law, University of New

South Wales, 25 November 2013

• ‘Ruthlessness and Sympathy: Hard and Soft Power in Counter-Terrorism and

Counter-Insurgency’, Human Rights Centre, Durham University, 16 April

2013

• ‘Ruthlessness and Sympathy: Using Counter-Insurgency Strategy to

Understand Domestic Counter-Terrorism’, ARC Laureate Fellowship Work-

in-Progress Seminar, Faculty of Law, University of New South Wales, 20

February 2013

• ‘The Prevent Strategy’, Guest Lecture, Comparative Anti-Terrorism Law

(LAWS8289), University of New South Wales, 29 July 2012

• ‘From Coercion to Community Building? A Decade of UK Anti-Terror Law

and Policy’, ARC Laureate Fellowship Work-in-Progress Seminar, Faculty of

Law, University of New South Wales, 26 April 2012

viii TABLE OF CONTENTS

ABSTRACT iv

ACKNOWLEDGEMENTS vi

LIST OF PUBLICATIONS AND PRESENTATIONS viii

CHAPTER ONE

INTRODUCTION: SMART POWER THINKING 1

Introduction 1

I SMART POWER THINKING: THREE CLAIMS ABOUT HARD

POWER AND SOFT POWER 16

A Hard Power and Soft Power Are Distinct 17

B Soft Power is Morally Preferable to Hard Power 18

C Hard Power and Soft Power Are Complementary 24

D Conclusions 26

II COUNTER-TERRORISM 28

A Hard Power: Counter-Terrorism Laws 28

B Soft Power: CVE Programs 31

C Smart Power Thinking 33

III COUNTER-INSURGENCY 37

A Hard Power: Operation Iraqi Freedom 37

B Soft Power: The Surge 39

C Smart Power Thinking 46

D Conclusions 51

IV INVESTIGATING SMART POWER THINKING 52

ix PART ONE: COUNTER-TERRORISM

CHAPTER TWO

SMART POWER THINKING IN UK COUNTER-TERRORISM 64

Introduction 64

I HARD POWER IN UK COUNTER-TERRORISM 66

A Definition of Terrorism 67

B Proscription Regime 72

C Preparatory Offences 75

D Incitement Offences 78

E Pre- and Post-Conviction Powers 80

F Counter-Terrorism Financing Measures 83

G TPIM Notices 85

H Stop-and-Search Powers 93

I Port and Border Controls 95

J Conclusions 98

II SOFT POWER IN UK COUNTER-TERRORISM 100

A Background: Prevent and CONTEST 101

B Soft Power Responses to Terrorism 108

III TESTING SMART POWER THINKING: ARE HARD POWER AND

SOFT POWER DISTINCT? 114

A Pursue and Prevent 116

B Counter-Terrorism and Community Integration 120

C Individual Law and Policy Measures 123

x D Protect and Prepare 126

E Conclusions 129

IV IS SOFT POWER MORALLY PREFERABLE TO HARD POWER? 130

A Suspect Communities 131

B Limiting Political and Religious Choice 137

C Early Interventions 142

D Conclusions 148

V ARE HARD POWER AND SOFT POWER COMPLEMENTARY? 149

A Compatibility of Hard Power and Soft Power 150

B Effectiveness of Combining Hard Power and Soft Power 155

C Capacity to Rebalance Hard Power Strategy 157

VI CONCLUSIONS 159

CHAPTER THREE

SMART POWER THINKING IN AUSTRALIAN COUNTER-

TERRORISM 163

Introduction 163

I HARD POWER IN AUSTRALIAN COUNTER-TERRORISM 167

A Definition of Terrorism 169

B Proscription Regime 171

C Preparatory Offences 176

D Speech Offences 179

E Police Powers 182

F Questioning and Detention Warrants 188

xi G Control Orders 191

H Preventative Detention Orders 194

I Border and Transport Security 197

J Conclusions 199

II SOFT POWER IN AUSTRALIAN COUNTER-TERRORISM 201

A Background: The Slow Development of a Smart Power Strategy 202

B Soft Power Responses to Terrorism 217

C Conclusions 224

III TESTING SMART POWER THINKING: ARE HARD POWER AND

SOFT POWER DISTINCT? 225

IV IS SOFT POWER MORALLY PREFERABLE TO HARD POWER? 235

A Suspect Communities 236

B Limiting Political and Religious Choice 239

C Early Interventions 242

D Hard Power and Autonomy 245

V ARE HARD POWER AND SOFT POWER COMPLEMENTARY? 247

A Compatibility of Hard Power and Soft Power 248

B Effectiveness of Combining Hard Power and Soft Power 249

C Capacity to Rebalance Hard Power Strategy 250

VI CONCLUSIONS 254

xii PART TWO: COUNTER-INSURGENCY

CHAPTER FOUR

SMART POWER THINKING IN CLASSICAL COUNTER-INSURGENCY 257

Introduction 259

I CLASSICAL COUNTER-INSURGENCY 264

A What is Counter-Insurgency? 264

B Hard Power 273

C Soft Power 278

II THE MALAYAN EMERGENCY 284

A The Importance of Malaya 284

B The Insurgency Begins 288

C Responses to the Insurgency 270

D Smart Power: The Legacy of Malaya 298

III TESTING SMART POWER THINKING: ARE HARD POWER AND

SOFT POWER DISTINCT? 301

IV IS SOFT POWER MORALLY PREFERABLE TO HARD POWER? 307

V ARE HARD POWER AND SOFT POWER COMPLEMENTARY? 313

A Compatibility of Hard Power and Soft Power 313

B Effectiveness of Combining Hard Power and Soft Power 317

C Capacity to Rebalance Hard Power Strategy 325

VI CONCLUSIONS 327

xiii CHAPTER FIVE

SMART POWER THINKING IN CONTEMPORARY

COUNTER-INSURGENCY 331

Introduction 331

I SMART POWER THINKING IN FM 3-24 334

A Key Principles 334

B Armed Force and Civil Reconstruction 340

C Law 344

D Intelligence 347

II THE SURGE IN IRAQ 349

A ‘A New Way Forward’ 350

B Provincial Reconstruction Teams 357

C Human Terrain Teams 360

D A Qualified Success 363

III ARE HARD POWER AND SOFT POWER DISTINCT? 367

IV IS SOFT POWER MORALLY PREFERABLE TO HARD POWER? 375

A The Rule of Law 375

B Dehumanising Language 379

C Colonial Roots 382

D Imposing Choice 384

V ARE HARD POWER AND SOFT POWER COMPLEMENTARY? 389

A Compatibility of Hard Power and Soft Power 389

B Effectiveness of Combining Hard Power and Soft Power 394

C Capacity to Rebalance Hard Power Strategy 401

xiv VI CONCLUSIONS 404

CHAPTER SIX

CONCLUSION: RETHINKING SMART POWER 409

Introduction 409

I THE CONVERGENCE OF HARD POWER AND SOFT POWER 413

II THE DANGERS OF SOFT POWER 425

III INTERACTION BETWEEN HARD POWER AND SOFT POWER 438

A Tensions Between Hard Power and Soft Power 439

B Lack of Evidence Demonstrating Effectiveness of Smart Power 444

C Difficulties in Developing Smart Power Strategies 449

IV LESSONS FOR DEVISING SMART POWER STRATEGIES 456

xv 1

INTRODUCTION: SMART POWER THINKING

Introduction

From this arises the following question: whether it is better to be loved than feared, or

the reverse. The answer is that one would like to be both the one and the other, but

because it is difficult to combine them, it is far better to be feared than loved if you

cannot be both.1

- Niccolò Machiavelli, The Prince (1531)

More than four centuries ago, Niccolo Machiavelli advised princes in Italy that it was

more important to feared than to be loved. But in today’s world, it is best to be both.

Winning hearts and minds has always been important, but it is even more so in a

global information age.2

- Joseph S Nye, Jr, Soft Power: The Means to Success in World Politics (2004)

1 Niccolò Machiavelli, The Prince (George Bull trans, Penguin, first published 1531, 2004 ed) 71.

2 Joseph S Nye Jr, Soft Power: The Means to Success in World Politics (Public Affairs, 2004) 1.

1 Whether it be winning hearts and minds, addressing root causes, or building resilient

communities, the idea that governments can counter political violence by directing

social policy measures at the general population is pervasive and influential. Such

approaches are not the invention of contemporary governments more attuned to considerations of welfare and human rights. The phrase ‘winning hearts and minds’ is generally dated to the Malayan Emergency of 1948-60, in which British Army

General Sir Gerald Templer famously declared that he would defeat the violent communist insurgency by winning the support of the rural Malayan population.3

Indeed, such approaches can be traced back to Imperial Japan and the principle of

minshin haaku (‘winning the people’s hearts’), which provided that foreign

populations could be controlled by reducing taxes, dispensing benefits to local

farmers, and developing effective administration.4 The Japanese distinguished

between ‘the rule of branches and leaves’ (combating violence directly) and ‘the rule

of the roots’ (tackling the social and political issues contributing to that violence).5

3 See Paul Dixon, ‘“Hearts and Minds”? British Counter-Insurgency from Malaya to Iraq’ (2009) 32(3)

Journal of Strategic Studies 353, 361; Richard Stubbs, ‘From Search and Destroy to Hearts and Minds:

The Evolution of British Strategy in Malaya 1948-60’ in Daniel Marston and Carter Malkasian (eds),

Counterinsurgency in Modern Warfare (Osprey, 2008) 101, 101, 109. It is commonly accepted that

Templer coined the modern usage of the term, although the phrase can be traced back to the Bible: see

Holy Bible: New King James Version (Thomas Nelson, 1980) Jeremiah 31:33 (‘I will put My law in

their minds, and write it on their hearts; and I will be their God, and they shall be My people’);

Philippians 4:7 (‘let your requests be made known to God; and the peace of God, which surpasses all

understanding, will guard your hearts and minds through Christ Jesus’); Revelation 2:23 (‘I will kill her

children with death, and all the churches shall know that I am He who searches the minds and hearts’).

4 Michael Burleigh, Small Wars, Faraway Places: The Genesis of the Modern World – 1945-65 (Pan

Books, 2014) 16.

5 Ibid.

2 Recent years have seen a resurgence of these principles. In response to the

9/11 attacks and in the early stages of the Iraq War, Western governments relied on

‘hard’ coercive strategies that posed significant problems for human rights and the rule of law. When it became clear that these coercive strategies would not provide a sustainable solution over the long-term, the same governments developed ‘soft’ policy responses to political violence which were designed to mitigate the excesses of previous years.6 These soft policy responses are viewed as distinct from coercive measures, in part because they have the capacity to improve social cohesion and reduce marginalisation.7 As in early versions of these principles, however, these soft policy responses are not viewed as a replacement for coercion. The position currently accepted amongst Western governments is that hard and soft approaches are both necessary elements in an effective strategy for countering political violence.8

6 See, eg, Home Office, Prevent Strategy (TSO, June 2011, Cm 8092) (‘Prevent Strategy 2011’);

Australian Government, Counter-Terrorism White Paper: Securing Australia – Protecting Our

Community (Department of the Prime Minister and Cabinet, 2010) 63-68; Government of Canada,

Building Resilience Against Terrorism: Canada’s Counter-Terrorism Strategy (Government of

Canada, 2011). These soft policy responses to political violence are explored further in Part II(B) below and in the chapters that follow.

7 See, eg, United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UN GAOR, 60th sess,

UN Doc A/RES/60/288, 4, [3], [6]; Sharon Pickering, Jude McCulloch and David Wright-Neville,

Counter-Terrorism Policing: Community, Cohesion and Security (Springer, 2008) 8; David Cole and

Jules Lobel, Less Safe, Less Free: Why America is Losing the War on Terror (New Press, 2007) 14,

265.

8 See, eg, Home Office, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (TSO,

July 2011, Cm 8123); Australian Government, Counter-Terrorism White Paper, above n 6;

Government of Canada, Building Resilience Against Terrorism, above n 6; and United Nations Global

3 One of the most influential theoretical expressions of these ideas is Joseph

Nye’s theory of smart power. Smart power suggests that governments can best

achieve their policy objectives by supplementing hard power with soft power.9 Nye

defines hard power as the capacity to influence behaviour through direct coercion,

threats and inducements.10 He defines soft power as the capacity to influence behaviour through the ‘attractive power’ of culture, ideology and institutions.11

Basically, a state improves its soft power by adopting foreign and domestic policies

that promote a positive image in the international sphere, thereby causing other states

to admire and emulate its example.12 By striking the right ‘balance’ between hard and soft power, Nye argues, governments can achieve their policy objectives whilst avoiding the problems associated with strategies that rely mainly on coercion.13

As the opening quotation from Machiavelli shows, Nye is certainly not the

first theorist to contemplate the benefits of combining contrasting forms of state

power. Machiavelli captured the idea in the image of the Centaur – a mythological

creature, half man, half beast, that a shrewd Prince should emulate if he wishes to rule

effectively:

Counter-Terrorism Strategy, GA Res 60/288, UN GAOR, 60th sess, UN Doc A/RES/60/288, 4-7, each of which recommends a range of both ‘hard’ and ‘soft’ responses to terrorism.

9 Nye, Soft Power, above n 2, xiii, 147; Joseph S Nye Jr, The Future of Power (Public Affairs, 2011)

xiv.

10 Nye, Soft Power, above n 2, 5; Joseph S Nye Jr, Bound to Lead: The Changing Nature of American

Power (Basic Books, 1990) 31.

11 See Nye, Soft Power, above n 2, x, 6-8; Nye, Bound to Lead, above n 10, 31-32.

12 Nye, Soft Power, above n 2, x, 8, 11, 62.

13 Ibid 147.

4 You must understand, therefore, that there are two ways of fighting: by law or by

force. The first way is natural to men, and the second to beasts. But as the first way

often proves inadequate one must needs have recourse to the second. So a prince

must understand how to make a nice use of the beast and the man. The ancient writers

taught princes about this by an allegory, when they described how Achilles and many

other princes of the ancient world were sent to be brought up by Chiron, the centaur,

so that he might train them his way. All the allegory means, in making the teacher

half beast and half man, is that a prince must know how to act according to the nature

of both, and that he cannot survive otherwise.14

The Machiavellian Centaur was used by Gramsci to describe the concept of hegemony, in which states are said to rule through a combination of coercion and consent.15 Other influential theorists have long described the contrasting ways in which states control populations: Michael Mann distinguished despotic and infrastructural power,16 John A Hall distinguished capstone and organic states,17 and

14 Machiavelli, above n 1, 74.

15 Antonio Gramsci, Selections from the Prison Notebooks (Quintin Hoare and Geoffrey Nowell Smith trans, Lawrence and Wishart, 1971) 169-170. See Geraldo Zahran and Leonardo Ramos, ‘From

Hegemony to Soft Power: Implications of a Conceptual Change’ in Inderjeet Parmar and Michael Cox

(eds), Soft Power and US Foreign Policy: Theoretical, Historical and Contemporary Perspectives

(Routledge, 2010) 12, 21; Benedetto Fontana, ‘State and Society: The Concept of Hegemony in

Gramsci’ in Mark Haugaard and Howard H Lentner (eds), Hegemony and Power: Consensus and

Coercion in Contemporary Politics (Lexington, 2006) 23, 28, 32-33.

16 Michael Mann, ‘The Autonomous Power of the State: Its Origins, Mechanisms and Results’ (1984)

25(2) European Journal of Sociology 185-213; Michael Mann, The Sources of Social Power: Volume 1

– A History of Power from the Beginning to AD 1760 (Cambridge University Press, 1986) 169-170.

5 Foucault famously distinguished sovereign and disciplinary power.18 There is in addition an entire body of regulatory theory, derived from Ayres’ and Braithwaite’s enforcement pyramid, which considers how governments should combine coercive legislation with other methods for influencing behaviour, such as taxes and education.19 Of these accounts, Nye’s is neither the most influential in academic circles nor the most theoretically rigorous. Even within the field of international relations, Nye is not the only theorist who deserves credit for the concepts of hard, soft and smart power. Nye claims that he ‘invented’ soft power,20 but by his own admission he inherited the concept from other theorists such as Steven Lukes, who also described the ability of states to co-opt rather than coerce individuals.21

What makes Nye so important to questions about state power is his ability to influence contemporary policymaking. This is because he provides an accessible conceptual framework that is susceptible of practical application. Policymakers are unlikely to cite Gramsci or Foucault when responding to a foreign crisis, but they

17 John A Hall, ‘Capstones and Organisms: Political Forms and the Triumph of Capitalism’ (1985)

19(2) Sociology 173.

18 Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin, 1971).

19 See generally Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the

Deregulation Debate (Oxford University Press, 1992); John Braithwaite, To Punish or Persuade:

Enforcement of Coal Mine Safety (State University of New York Press, 1985); Neil Gunningham,

Darren Sinclair and Peter Grabosky, Smart Regulation: Designing Environmental Policy (Clarendon,

1998); Navroz K Dubash and Bronwen Morgan, The Rise of the Regulatory State of the South:

Infrastructure and Development in Emerging Economies (Oxford University Press, 2013).

20 Nye, Soft Power, above n 2, xv.

21 Steven Lukes, Power: A Radical View (Macmillan, 1980) 21-25. See Nye, The Future of Power, above n 9, 11-14.

6 have certainly invoked Nye to shape and justify recent strategic choices. Nye’s

influence was particularly strong in the early years of the Obama administration, with former Secretary of State Hillary Clinton eschewing Bush-era unilateralism in favour of a smart power foreign policy.22 Clinton invoked the concept of smart power to declare that the Obama administration would focus not only on maintaining its military and economic strength, but also on engaging with regional institutions, supporting free trade, and defending ‘fundamental freedoms and universal human rights’.23 Harold Koh, Yale law professor and former State Department Legal Adviser to the Obama administration, is another prominent advocate of Nye’s work. Koh argues that the US government should develop smart power solutions to transnational conflicts which ‘emphasize cooperation over confrontation’.24 Smart power has become the catch-cry of liberals and democrats who recognise both the necessity and dangers of coercive action. It is viewed as the new benchmark for achieving policy objectives – a strategic compromise between excessive coercion and undue pacifism.

And yet, Nye’s own work provides clues as to the dangers and limits of smart power strategies. His theory of smart power hinges on three core ideas or premises, which are identified in Part I below. These three ideas are as follows: (1) hard power

22 Hillary Clinton, ‘The art of smart power’, New Statesman (London), 18 July 2012. See also former

Defence Secretary Robert Gates, who referred to soft power in the 2007 Landon Lecture at Kansas

State University: Robert Gates, ‘Landon Lecture’ (Speech delivered at University of Kansas,

Manhattan Campus, 26 November 2007)

1199>.

23 Clinton, above n 22.

24 University of Virginia School of Law, ‘US State Department’s Legal Adviser Calls for “Smart-

Power” Approach to Transnational Conflicts’ (15 February 2012)

news/2012_spr/koh_talk.htm>.

7 and soft power are distinct, (2) soft power is morally preferable to hard power, and (3)

hard power and soft power are complementary. In other words, he views hard and soft

power as two distinct approaches, the second morally preferable to the first, which

should be combined in a two-pronged strategy. For ease of reference, the thesis refers

collectively to these three ideas as ‘smart power thinking’.

What is striking about Nye’s theory is that he recognises a range of tensions,

problems and complexities underlying each of these three ideas, but he largely

dismisses these more complex issues in recommending that governments develop

smart power strategies. For example, he points out that Hitler, Stalin, Mao and Osama

bin Laden all relied heavily on soft power,25 but he nonetheless asserts that soft power

should be conceived as morally preferable to coercion.26 These more complex issues give sufficient reason to doubt and question the benefits of smart power strategies. It is not clear why Nye remains such a fervent advocate for smart power, at least in its current form, when he recognises from the outset that the three ideas providing the foundation of his theory prove significantly more problematic when tested against real-world examples.

This thesis critically examines smart power thinking in Western efforts to

counter political violence. It does so through case studies in two separate but related

fields: domestic counter-terrorism and foreign counter-insurgency. The premise

underlying this inquiry, justified in the rest of this chapter, is that smart power

thinking has recently emerged in these two fields as the key strategic framework guiding Western efforts to counter political violence. This is not to imply that

25 Nye, Soft Power, above n 2, 95; Nye, The Future of Power, above n 9, 23, 81; Joseph S Nye Jr, The

Powers to Lead (Oxford University Press, 2008) 43, 141.

26 Nye, The Powers to Lead, above n 25, 43-44, 141-143.

8 counter-terrorism and counter-insurgency should be conceived as one and the same, as several commentators have suggested through the concept of ‘global insurgency’.27

Rather, this thesis examines smart power thinking in counter-terrorism and counter-insurgency because Nye’s theory epitomises current strategic thinking in these two fields. Both domestically and in their overseas military operations, Western governments have developed social policy responses to mitigate the detrimental effects of coercion. In this respect, they reached the same conclusion as Nye: that a strategy which combines hard and soft power is preferable to a strategy which relies only on hard power. In other words, smart power strategies emerged in counter-

27 See David Kilcullen, The Accidental Guerrilla: Fighting Small Wars in the Midst of a Big One

(Oxford University Press, 2009); David Kilcullen, Counterinsurgency (Oxford University Press, 2010)

165-226; David Kilcullen, ‘Counter-insurgency Redux’ (2006/7) 48(4) Survival 111; David J Kilcullen,

‘Countering Global Insurgency’ (2005) 28(4) Journal of Strategic Studies 597; Thomas R Mockaitis,

The ‘New’ Terrorism: Myths and Reality (Praeger Security International, 2007) 113-114; Thomas R

Mockaitis, ‘Winning Hearts and Minds in the “War on Terrorism”’ (2003) 14(1) Small Wars &

Insurgencies 21; John Mackinlay, The Insurgent Archipelago: From Mao to Bin Laden (Columbia

University Press, 2009); Robert M Cassidy, Counterinsurgency in the Global War on Terror (Stanford

University Press, 2008); Daniel S Roper, ‘Global Counterinsurgency: Strategic Clarity for the Long

War’ (2008: Autumn) Parameters: US Army War College Quarterly 92-108); Bruce Hoffman, ‘Does

Our Counter-Terrorism Strategy Match the Threat? (RAND, 2005); Kurt M Campbell and Richard

Weitz, ‘Non-Military Strategies for Countering Islamist Terrorism: Lessons Learned from Past

Counterinsurgencies’ (Hudson Institute, 2006). For persuasive critiques of this global insurgency thesis, see Matthew Kowalski, ‘Global Insurgency or Global Confrontation? Counter-Insurgency and the “Long War” on Terrorism’ (2008) 65; Michael J Boyle, ‘Do Counterterrorism and

Counterinsurgency Go Together?’ (2010) 86(2) International Affairs 333. A similar issue is raised in debates about the concept of ‘Fourth Generation Warfare’: see Colonel Thomas X Hammes, The Sling and the Stone: On War in the 21st Century (Zenith Press, 2006); Terry Terriff, Aaron Karp and Regina

Karp (eds), Global Insurgency and the Future of Armed Conflict (Routledge, 2008).

9 terrorism and counter-insurgency as a solution to the problems of relying excessively

on coercion. Nye’s theory provides a useful conceptual framework for understanding

these recent developments in Western efforts to counter political violence.

More importantly, counter-terrorism and counter-insurgency provide useful

case studies for critically examining Nye’s theory. What is striking about recent smart power responses to political violence is that they have frequently failed to mitigate the detrimental effects of coercion. In particular, they have repeatedly displayed similar tensions, problems and complexities to those that Nye raises and then largely discounts in developing his theory. If the problems that Nye raises with regard to smart power thinking are confirmed by real-world responses to political violence, then smart power might not provide a viable solution to the problems associated with coercion. Western governments may have some thinking still to do, and some important lessons still to learn, if they want to counter political violence effectively without undermining the democratic values they are ultimately trying to protect.

This thesis therefore critically examines smart power thinking in counter- terrorism and counter-insurgency. Its core argument is that there are dangers and downsides to smart power strategies which are given insufficient attention, both in

Nye’s theory and in current government policy. This is not to suggest that smart power strategies will always exacerbate the problems posed by coercion. Nor is it a call for governments to return to the excessively coercive strategies of previous years.

Rather, it is a call for more complex and cautious thinking about smart power. It is a warning against simplistic, hackneyed rhetoric about supplementing coercion with efforts to ‘win hearts and minds’. Smart power strategies undoubtedly provide some benefits to excessive coercion, but in many cases soft power – and the relationship it

10 creates with hard power – produces its own dangers. To date, these dangers and

downsides of smart power strategies have received little if any sustained attention.28

To guide this inquiry, the label ‘smart power thinking’ has been chosen

purposely over the more common term ‘smart power’. This is to emphasise that smart

power is closely associated with Nye but it also predates him (as evidenced by the

military strategies of colonial Britain and Imperial Japan) and transcends him, as his

approach is broadly reflected in the work of several prominent theorists (including

Machiavelli, Gramsci, and Foucault).29 In other words, Nye is famously associated with smart power, but he is more a product of this way of thinking than its creator.

The label ‘smart power thinking’ has also been chosen because smart power is more than just the idea that hard power should be supplemented with soft power. This is the key idea associated with smart power, but it relies on two prior assumptions: that hard power and soft power are distinct, and that soft power is morally preferable to hard power. If Nye’s theory is to be tested and challenged fully, then these two

28 To date, most commentators have focused on critiquing soft power rather than smart power, and they have done so on a theoretical level rather than through detailed case studies of how these concepts are applied in practice: see, eg, Steven Lukes, ‘Power and the Battle for Hearts and Minds: On the

Bluntness of Soft Power’ in Felix Berenskoetter and M J Williams (eds), Power in World Politics

(Abingdon: Routledge, 2007) 83; Janice Bially Mattern, ‘Why “Soft Power” Isn’t So Soft:

Representational Force and Attraction in World Politics’ in Felix Berenskoetter and M J Williams

(eds), Power in World Politics (Routledge, 2007) 98; Edward Lock, ‘Soft Power and Strategy:

Developing a “Strategic” Concept of Power’ in Inderjeet Parmar and Michael Cox (eds), Soft Power and US Foreign Policy: Theoretical, Historical and Contemporary Perspectives (Routledge, 2010) 32.

29 Machiavelli, above n 1, 74; Gramsci, above n 15, 169-170; Foucault, above n 18. On some of the similarities and differences between Nye and Foucault, see Lock, above n 28, 40-42.

11 prior assumptions deserve equal critical attention. Smart power thinking is a holistic

term which ascribes equal importance to each of these core elements in Nye’s theory.

This inquiry differs from and builds upon existing critiques of Nye’s theory,

which may be divided roughly into two categories. On the one hand, some

commentators engage with Nye on a theoretical level, such as by comparing his

theory to those of Gramsci and Foucault.30 This literature centres on theoretical

questions about the nature of power: what is power, who wields it, and how does it

influence behaviour? For example, by drawing on Foucault, Edward Lock argues that

Nye focuses too heavily on the agents of power and understates the importance of its

subjects.31 Lock suggests that Nye’s theory would be more accurate and nuanced if he integrated Foucault’s ideas about power as a set of relationships throughout society.32

On the other hand, some commentators do not engage with Nye on a theoretical level, but they disagree with the policy and political implications of his work. Niall Ferguson argues that soft power is not as important as Nye suggests

because ‘it’s, well, soft’.33 Ferguson accepts that the United States has significant cultural influence in the Middle East (as evidenced by the ubiquity of its pop music and takeaway food) but he disagrees that this equates to any meaningful ‘influence in

world affairs’.34 By contrast, Layne warns against the expansionist foreign policies

30 Zahran and Ramos, above n 15; Lock, above n 29.

31 Lock, above n 28, 36-37, 39.

32 Ibid 41-46.

33 Niall Ferguson, ‘Power’ (2003) 134 Foreign Policy 18, 21.

34 Ibid. A similar comment was made recently by Malcolm Turnbull, Communications Minister for the

Australian government and former leader of the Australian Liberal Party, to support the purchasing of

58 joint strike fighters (at a cost of some $12 billion) for the Royal Australian Air Force. In a televised discussion about soft power, Turnbull quipped that ‘I’d love to think that the security of the country

12 implicit in the idea of soft power, which ‘led to disasters like Vietnam and Iraq’.35 He

argues that soft power is ‘nothing more than … a polite way of describing the

ideological expansionism inherent in US liberal internationalism’,36 and that this approach is in reality ‘accelerating the decline of American power’.37 Others have stressed the practical difficulties in using soft power effectively, particularly as its success will depend on whether an audience is susceptible to a change in attitude.38

Both categories of literature address important questions surrounding Nye’s

theory, but the first does not sufficiently address the policy implications of his work,

and the second does not sufficiently engage with his core ideas. To bridge this gap,

this thesis takes a different approach: it identifies the core conceptual ideas underlying

Nye’s theory, and then critiques these ideas by testing them against real-world case

studies of law and policy. In other words, the key task in the following chapters is to

assess whether Nye’s theory accurately describes the practice of countering political

violence. In some respects, this leads to similar conclusions to the literature outlined

could be entrusted solely to Bananas in Pyjamas, Peppa Pig, the Wiggles, but sadly it is not’: Q&A

(ABC TV), Death and Taxes (28 April 2014) .

35 Christopher Layne, ‘The Unbearable Lightness of Soft Power’ in Inderjeet Parmar and Michael Cox

(eds), Soft Power and US Foreign Policy: Theoretical, Historical and Contemporary Perspectives

(Routledge, 2010) 51, 73.

36 Ibid.

37 Ibid.

38 Matthew Kroenig, Melissa McAdam and Steven Weber, ‘Taking Soft Power Seriously’ (2010) 29(5)

Comparative Strategy 412, 414; Angus Taverner, ‘The Military Use of Soft Power – Information

Campaigns: The Challenge of Application, Their Audiences and Effects’ in Inderjeet Parmar and

Michael Cox (eds), Soft Power and US Foreign Policy: Theoretical, Historical and Contemporary

Perspectives (Routledge, 2010) 137, 145.

13 above, and these parallels are noted in the case studies that follow.39 Ultimately, however, this thesis makes a different contribution because it is guided by a different

aim. The primary aim of this thesis is to understand the difference and relationship

between hard and soft power in Western responses to political violence, and in doing

so, to consider how Western governments can devise smart power strategies for

countering political violence so that they mitigate the detrimental effects of coercion

to the greatest extent.

This thesis differs from the literature outlined above in two further respects.

First, most of this existing literature focuses narrowly on critiquing soft power; it does

not address Nye’s more recent and now more influential work on smart power.40 By focusing on smart power, this thesis considers Nye’s theory in a more holistic way: it considers not only the concept of soft power, but also how soft power differs from and interacts with hard power. Secondly, this thesis applies Nye’s theory to detailed case studies of counter-terrorism and counter-insurgency. To date, there has been no sustained analysis of Nye’s theory in these contexts.41 In particular, Nye’s theory is

39 See discussion in Chapter Two, Part IV(B); Chapter Four, Part III; Chapter Five, Part IV(C).

40 See, Lukes, above n 28; Mattern, above n 28; Lock, above n 28; Ferguson, above n 33; Layne, above n 35; Kroenig, McAdam and Weber, above n 38; Taverner, above n 38. Two exceptions are Ernest J

Wilson III, ‘Hard Power, Soft Power, Smart Power’ (2008) 616 Annals of the American Academy of

Political and Social Science 110; and Suzanne Nossel, ‘Smart Power’ (2004) 83(2) Foreign Policy

131, although these largely make the same argument as Nye in advocating the use of smart power.

41 There have been some mentions of hard and soft power in the literature on domestic counter-

terrorism, but the terms have been used as shorthand for coercive laws and community-policing practices, and Nye’s theory has not been examined in detail: see Pickering, McCulloch and Wright-

Neville, Counter-Terrorism Policing, above n 7, 8; Martin Innes, ‘Policing Uncertainty: Countering

14 traditionally used to understand foreign policy,42 and the extent to which his theory is relevant to domestic law and policy remains unclear. By exploring the relevance of smart power in domestic counter-terrorism, this thesis contributes both to the existing literature on Nye, as well as ongoing debates as to how Western governments can devise permanent counter-terrorism strategies that do not unduly infringe rights.43

This introductory chapter explains smart power thinking and how it has

developed in counter-terrorism and counter-insurgency. The chapter proceeds in four

parts. Part I identifies the three core ideas that constitute smart power thinking, and

explores the tensions, problems and complexities underlying each. Parts II and III

demonstrate how smart power thinking has developed in counter-terrorism and

counter-insurgency. Part IV outlines the investigation to take place in the four case

studies that follow. The purpose of these case studies is to test the three components

of smart power thinking across different but related contexts, and in doing so, to

consider whether smart power responses to political violence need rethinking.

Terror through Community Intelligence and Democratic Policing’ (2006) 605 ANNALS of the

American Academy of Political and Social Science 222, 232-234.

42 See especially Inderjeet Parmar and Michael Cox, Soft Power and US Foreign Policy: Theoretical,

Historical and Contemporary Perspectives (Routledge, 2010).

43 See, eg, Victor V Ramraj et al (eds), Global Anti-Terrorism Law and Policy (Cambridge University

Press, 2012, 2nd ed); Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge

University Press, 2011); George Williams, ‘The Legal Legacy of the War on Terror’ (2013) 12

Macquarie Law Journal 3, 7; George Williams, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35

Melbourne University Law Review 1136, 1144; Andrew Ashworth and Lucia Zedner, Preventive

Justice (Oxford University Press, 2014) 171-195.

15 I SMART POWER THINKING: THREE CLAIMS ABOUT HARD

POWER AND SOFT POWER

Nye coined the term ‘soft power’ in 1990 to counter suggestions that the United

States had suffered a rapid decline in power during the latter years of the Cold War.44

He argued that cultural and ideological influence was becoming at least as important

in the globalised world as traditional notions of military and economic strength,45 and

that the United States had the ‘soft power resources to meet the challenges of

transnational interdependence’.46 He later developed a general theory of soft power,47

and the concept has since had a significant impact on foreign policy discourse and

international relations theory through its use by the media, academics, and political

leaders.48

After soft power became influential in this way, Nye developed the concept of

smart power to ‘counter the misperception that soft power alone can produce effective

foreign policy’.49 He defines smart power as ‘the combination of the hard power of coercion and payment with the soft power of persuasion and attraction’.50 This section

44 Nye, Bound to Lead, above n 10, 32.

45 Ibid 173-201.

46 Ibid 265.

47 Nye, Soft Power, above n 2.

48 Ibid xii; Nye, The Future of Power, above n 9, 81. See, eg, Lukes, above n 28; Ferguson, above n 33;

Gates, above n 22; Dorian Lynskey, ‘Britain’s soft power is greater than Gangnam style: so appreciate it’, The Guardian (London), 19 June 2013; Dave Boyer, ‘Obama’s “soft power” policy in a world of

hurt’, The Washington Times, 13 August 2013.

49 Nye, The Future of Power, above n 9, 22.

50 Ibid xiii.

16 identifies three ideas or claims that are central to his theory of smart power. The thesis

refers collectively to these three ideas as ‘smart power thinking’. These ideas are then

tested across different contexts through the case studies in the chapters that follow.

A Hard Power and Soft Power are Distinct

The first core idea underlying Nye’s theory of smart power is that hard power and soft power describe two distinct approaches to influencing behaviour. On the surface, this seems an obvious point and a simple dichotomy to illustrate. For example, if State A wants to stop State B from harming its own citizens, State A could take two different approaches. It could threaten State B with military action and economic sanctions

(hard power), or it could persuade State B to act in accordance with human rights norms (soft power).

Beyond simple examples it can be difficult to accurately distinguish hard and soft power. Nye recognises these difficulties, but he nonetheless believes that it is valid and useful to think of hard and soft power as distinct. He explains that hard and soft power are related because both are methods for influencing behaviour.51 He accepts that hard and soft power are not entirely discrete because they ‘range along a spectrum from coercion to economic inducement to agenda setting to pure attraction’.52 He also recognises that the two approaches can be difficult to distinguish in practice because institutions typically associated with hard power can produce soft power, and vice versa. Militaries, for example, are typically associated with hard power, but they can also contribute to soft power by promoting an image of

51 Nye, Soft Power, above n 2, 7.

52 Ibid.

17 invincibility that is admired by other states.53 Conversely, multilateral treaties are typically associated with soft power because they promote cooperation,54 but they can

also contribute to hard power by improving a state’s access to military and economic

resources.

Nye largely discounts the importance of these complexities, claiming instead that the distinction between hard and soft power is ‘strong enough to allow us to employ the useful shorthand reference’.55 The case studies in this thesis consider

whether this dichotomy is a valid and useful one to rely upon when describing and

devising smart power responses to political violence.

B Soft Power is Morally Preferable to Hard Power

The second core idea in Nye’s theory is that soft power is morally preferable to hard

power. Again, Nye recognises that this is not true in all cases, but he nonetheless

suggests that it is valid and useful to think of soft power in this way. He is aware, for

example, that soft power can be used for immoral purposes – including those as

abhorrent as genocide and terrorism. He explains that Hitler, Stalin, Mao and Osama

bin Laden all relied heavily on soft power because each had the ability to attract large

numbers of followers.56 He gives the example of the 9/11 attacks, for which bin

53 Ibid 7, 9, 116; Nye, The Future of Power, above n 9, 25; Joseph S Nye Jr, ‘Notes For a Soft-Power

Research Agenda’ in Felix Berenskoetter and M J Williams (eds), Power in World Politics (Routledge,

2007) 162, 168.

54 See Nye, Soft Power, above n 2, 64-65.

55 Ibid 8.

56 Ibid 95; Nye, The Future of Power, above n 9, 23, 81; Nye, The Powers to Lead, above n 25, 43,

141.

18 Laden used soft power ‘to attract nineteen people to commit suicide and mass murder’.57 For this reason, Nye insists that soft power is a descriptive rather than normative concept.58 He remarks that ‘it is not necessarily better to twist minds than to twist arms’.59 On this reading, the concept of soft power is devoid of moral content.

At the same time, Nye suggests that there is some moral or normative content to the concept of soft power. There is an inherent tension in Nye’s theory because he claims that soft power is value-neutral, and yet he also implies a strong link between soft power and the ideals typically associated with Western systems of government.

He explains that policy decisions ‘produce soft power when they promote broadly shared values such as democracy and human rights’.60 For this he relies on the problematic notion that these values are capable of being described as ‘universal’.61

He argues that universal values produce soft power more effectively than minority values:

When a country’s culture includes universal values and its policies promote values

and interests that others share, it increases the probability of obtaining its desired

outcomes because of the relationships of attraction and duty that it creates. Narrow

values and parochial cultures are less likely to produce soft power.62

57 Nye, The Powers to Lead, above n 25, 141.

58 Nye, The Future of Power, above n 9, 81.

59 Ibid 81; Nye, The Powers to Lead, above n 25, 43.

60 Nye, Soft Power, above n 2, 62.

61 Ibid 11. See Zahran and Ramos, above n 15, 24.

62 Nye, Soft Power, above n 2, 11.

19 More specifically, Nye argues that soft power is morally preferable to hard power because it relies on means that allow individuals greater autonomy. He believes that this distinction is morally significant even though soft power can be used to achieve the same ends as hard power. He gives the example of stealing a person’s money:

If I want to steal your money, I can threaten you with a gun, I can lure you into a

fraudulent get-rich-quick scheme, or I can persuade you with a false claim that I am a

guru who will save the world. I can then abscond with your money. The first two

approaches rest on the hard power of coercion and inducement, whereas the third

depends solely on attraction or soft power. Nonetheless, the intentions and result

remain theft in all three instances. On the other hand, soft power uses means that

allow (on the surface, at least) more choice and leeway to the victim than hard power

does.63

Nye later returned to this idea, arguing that soft power should generally be favoured over hard power because it allows individuals a greater capacity to exercise choice:

On the dimensions of means, as opposed to goals and consequences, I argued that a

moral case can be made for preferring soft power. By its very nature, it depends on

what goes on in the mind of the followers and usually leaves more space for others to

exercise choice. If we value autonomy of individuals and respect their choices, then,

although coercion may sometimes be necessary, it should generally be disfavored,

and it is usually more moral for a leader who has options to prefer soft power.64

63 Nye, The Powers to Lead, above n 25, 43-44.

64 Ibid 141-142.

20 Definitions of autonomy are contested, but key to most accounts is the idea that individuals should have the capacity to determine the course of their own lives.65 As

Waldron puts it, autonomy ‘evokes the image of a person in charge of his own life, not just following his desires but choosing which of his desires to follow’.66

Autonomy is the capacity for ‘unimpaired critical self-reflection’: the ability not only to have desires and preferences, but also to reflect upon and determine those desires and preferences.67 This is referred to as a second-order cognitive ability, and it is possessed only by humans and not by other animals.68 For this reason, autonomy plays a central role in theories of human rights because it is a defining component of what it means to be ‘human’.69 It also lies at the heart of political liberalism, which emphasises the importance of individuals having the capacity to ‘pursue a conception

65 John Christman and Joel Anderson (eds), Autonomy and the Challenges to Liberalism: New Essays

(Cambridge University Press, 2005) 3. See, eg, Gerald Dworkin, The Theory and Practice of Autonomy

(Cambridge University Press, 1988) 108; Christopher W Morris, ‘Human Autonomy and the Right to

Be Free’ (1980) 4(4) Journal of Libertarian Studies 379, 381.

66 Jeremy Waldron, ‘Moral Autonomy and Personal Autonomy’ in John Christman and Joel Anderson

(eds), Autonomy and the Challenges to Liberalism: New Essays (Cambridge University Press, 2005)

307, 307.

67 Marina A L Oshana, ‘Autonomy and Self-Identity’ in John Christman and Joel Anderson (eds),

Autonomy and the Challenges to Liberalism: New Essays (Cambridge University Press, 2005) 77, 77.

68 See Christman and Anderson, above n 65, 3; Dworkin, above n 65, 108; Waldron, above n 66, 307;

Joseph Raz, The Morality of Freedom (Oxford University Press, first published 1986, 2009 ed) 369;

David A J Richards, ‘Rights and Autonomy’ (1981) 92(1) Ethics 3, 6.

69 See, eg, Jill Marshall, Personal Freedom Through Human Rights Law? Autonomy, Identity and

Integrity Under the European Convention on Human Rights (Martinus Nijhoff, 2009) 49, 57-86. See also John Christman, ‘Constructing the Inner Citadel: Recent Work on the Concept of Autonomy’

(1988) 99(1) Ethics 109-124, 119; Morris, above n 65, 379, 381.

21 of the good, and to deliberate in accordance with it’.70 An autonomous being is one who can choose how to act and what to think without having desires and preferences imposed externally upon them. This understanding of personal (or individual) autonomy is usually distinguished from the concept of ‘freedom’: freedom describes the instrumental capacity to adopt a particular course of action (e.g. to move wherever one chooses), whereas autonomy is the mental capacity to choose how to act.71

This suggests another important tension in Nye’s theory, because he defines soft power as the capacity to ‘co-opt’ others by determining their desires and preferences.72 In distinguishing hard and soft power, he describes two different ways to influence behaviour: compelling a person to act against their initial preferences

70 John Rawls, Political Liberalism (Columbia University Press, first published 1993, 2011 ed) 72. See also Gerald F Gaus, ‘The Place of Autonomy within Liberalism’ in John Christman and Joel Anderson

(eds), Autonomy and the Challenges to Liberalism: New Essays (Cambridge University Press, 2005)

272.

71 Christman, ‘Constructing the Inner Citadel’, above n 69, 111-112. Freedom (sometimes referred to as liberty) is typically divided into two types – positive and negative – although some definitions of positive freedom overlap with notions of personal autonomy. See Isaiah Berlin, ‘Two Concepts of

Liberty’ in Henry Hardy (ed), Liberty: Incorporating ‘Four Essays on Liberty’ (Oxford University

Press, 2002) 166, who provides the classic statement of positive and negative freedom (at 169, 178), being the capacity both to realise one’s goals and to not have others interfering with that activity.

Berlin defines positive freedom (at 178) as acting according to ‘conscious purposes, which are my own’, ‘deciding, not being decided for’, and ‘conceiving goals and policies of my own’, which are all similar to the concept of personal autonomy outlined above. This concept of personal autonomy is generally distinguished from moral autonomy, which involves Kantian questions as to the ‘relation between one person’s pursuit of his own ends and others’ pursuit of theirs’: Waldron, above n 66, 307.

72 Nye, Soft Power, above n 2, 2, 7; Nye, Bound to Lead, above n 10, 31; Nye, The Future of Power, above n 9, 11, 13.

22 (hard power) and changing those initial preferences so that the other person wants to

act in accordance with your objectives (soft power).73 Nye describes this second

method as ‘getting others to want the outcomes you want’.74 To continue his theft

example from above,75 hard power is compelling a person to hand over their money

when they do not want to, whereas soft power is persuading a person that they want to

hand over their money. If soft power involves changing individual preferences in this

way, then it is difficult to see how soft power can preserve autonomy, as an individual

is not autonomous if they are acting according to desires that are not authentically

their own.76 Nye is aware of the potential for soft power to undermine autonomy in

this way, such as when governments manipulate individuals through propaganda and

brainwashing,77 and yet he still favours a basic rule that ‘a preference for soft means can be morally justified’.78 He glibly remarks: ‘there is still some wisdom in the old

adage that sticks and stones can break your bones, but words don’t really hurt you’.79

It is possible that Nye uses the word autonomy in the passage extracted above

but intends to suggest that soft power allows individuals greater freedom than hard

power. Indeed, in some of his other works, Nye uses the word freedom instead of

73 See Nye, The Future of Power, above n 9, 11, 13.

74 Nye, Soft Power, above n 2, 5.

75 Nye, The Powers to Lead, above n 25, 43-44.

76 Commentators relate autonomy to the idea that a person is ‘“truly or “deeply” herself in acting’:

Oshana, above n 67, 77. See also Dworkin, above n 65, 108, who refers to individuals as autonomous

‘when their decisions and actions are their own’.

77 Nye, The Powers to Lead, above n 25, 142-143.

78 Ibid 142.

79 Ibid.

23 autonomy while giving the same hypothetical theft scenario.80 To this extent, Nye conflates autonomy and freedom when advocating the normative benefits of soft power. However, his repeated references to the idea of ‘choice’ and ‘what goes on in the mind of the followers’ suggests that his intended focus is on the concept of personal autonomy referred to above.81 This is also the more contestable claim, as it

seems that hard power will in most cases have a greater impact on freedom

(imprisonment, for example, clearly restricts an individual’s freedom to a greater

extent than most plausible uses of soft power). The case studies in this thesis therefore

focus on this question of autonomy: that is, whether soft power allows individuals

greater autonomy than hard power in Western efforts to counter political violence.

C Hard Power and Soft Power are Complementary

The third core idea in Nye’s theory is that hard power and soft power are

complementary. This has become synonymous with ‘smart power’, but it is really the

last of three components necessary to understand the concept in full. Once more, Nye

recognises that this statement is not true in all cases, but he nonetheless suggests that

policymakers should follow it as a general rule. He recognises that hard and soft

power ‘sometimes interfere with each other’,82 particularly when a government relies

excessively on hard power to the detriment of its soft power. For example, he argues

that the invasion of Iraq in 2003 was a ‘stunning victory’ for hard power but costly in

80 Nye, ‘Notes For a Soft-Power Research Agenda’, above n 53, 169-170.

81 See Nye, The Powers to Lead, above n 25, 43-44, 141-142. See also Nye, ‘Notes for a Soft-Power

Research Agenda’, above n 53, 170.

82 Nye, Soft Power, above n 2, 25.

24 terms of soft power because it caused a ‘dramatic decline in the popularity of the

United States’.83 He also notes the reverse: that excessive reliance on soft power can undermine hard power, such as when a government becomes reluctant to defend itself with force.84 Gallarotti refers to these twin problems as ‘hard disempowerment’

(excessive reliance on hard power to the detriment of soft power) and ‘soft disempowerment’ (excessive reliance on soft power to the detriment of hard power).85

This suggests a complex and conflicting relationship between hard and soft power, but Nye nonetheless suggests that combining both approaches is an effective strategy for achieving policy objectives. He describes smart power as ‘the ability to combine hard and soft power into effective strategies in varying contexts’.86 Hard

power should be supplemented with soft power because soft power has become

crucial to power relations in the globalised world,87 and because excessive reliance on hard power will prove counter-productive.88 Typically, this means that hard power

should be used against individuals who cannot be co-opted or won over, while soft

power is used simultaneously to win the support of the general population.89

83 Ibid xi-xii. See generally 127-134.

84 Ibid 25.

85 Giulio M Gallarotti, Cosmopolitan Power in International Relations: A Synthesis of Realism,

Neoliberalism, and Constructivism (Cambridge University Press, 2010) 55-57, 156-225.

86 Nye, The Future of Power, above n 9, xiv.

87 See, eg, Nye, Soft Power, above n 2, 21-23, 31; Nye, Bound to Lead, above n 10, 188-201.

88 See, eg, Nye, Soft Power, above n 2, xi-xii; 25, 127.

89 See Nye, The Future of Power, above n 9, 231-232: ‘In a struggle against terrorism, the United

States needs to use hard power against the hard-core terrorists, but we cannot hope to win unless we win the hearts and minds of mainstream Muslims’.

25 Implicit in Nye’s recommendation to combine hard and soft power are three more specific ideas. First, Nye suggests that hard and soft power are mutually reinforcing (or at least compatible) methods for influencing behaviour. Secondly, he suggests that combining hard and soft power is an effective strategy for achieving policy objectives. Thirdly, he suggests that governments can readjust or rebalance their existing strategies such that hard and soft power do not interfere with each other

– an assumption, in other words, that hard and soft power can be made complementary. Striking an appropriate balance between hard and soft power requires

‘[c]hoosing among power behaviours, choosing command power or co-optive power in different situations, and adjusting tactics so that they reinforce, rather than undercut, each other’.90 Put another way, Nye suggests that it is possible for governments to create an effective smart power strategy by reducing their existing reliance on hard power. The thesis tests this component of smart power thinking by considering these three things: whether hard and soft power are compatible, whether combining hard and soft power is effective, and whether it is possible for governments to rebalance their existing reliance on hard power to create a smart power strategy.

D Conclusions

Taken together, the three key ideas above sum up the core conceptual framework of

Nye’s theory. In this thesis, ‘smart power thinking’ refers collectively to these three ideas: (1) hard power and soft power are distinct; (2) soft power is morally preferable to hard power; (3) hard power and soft power are complementary. Put another way,

90 Nye, The Future of Power, above n 9, 225.

26 smart power thinking is when a government believes the best solution to a policy

problem is to combine two contrasting responses, one morally preferable to the other.

Nye recognises that these three ideas belie a more complex reality; his theory

in its entirety is not as simplistic as this tripartite formulation suggests. But it is curious that he strongly favours these simple, shorthand rules when in each case he recognises a range of evident problems underlying each. It is not clear why Nye believes that governments should think in these terms when he recognises from the outset that these three ideas prove significantly more problematic when tested against real-world examples. If these three ideas do not stand, then Western governments do not have a solid theoretical foundation for developing smart power strategies.

Nye avoids this potential downfall by framing each idea as a rule of thumb: a basic principle that is not reliable in every situation but is nonetheless sufficiently accurate to guide policy development. It may be that this is a valid conclusion to reach: that, despite the evident tensions and complexities underlying smart power thinking, governments will nonetheless fare best if they develop policy according to these three conceptual rules. But Nye’s own awareness of the problems underlying smart power thinking gives sufficient reason to doubt and interrogate this claim. The purpose of this thesis is therefore to test the three ideas set out above and to determine the extent to which they provide a valid and useful conceptual framework for achieving policy objectives. The thesis does so through detailed case studies in counter-terrorism and counter-insurgency, because smart power thinking has recently emerged in these two fields as the key strategic framework guiding Western efforts to counter political violence.

27 II COUNTER-TERRORISM

A Hard Power: Counter-Terrorism Laws

In response to the 9/11 attacks, Western governments enacted domestic legislation that undermined longstanding norms of criminal justice, human rights and the rule of law.91 Infamously, the Bush administration enacted the USA PATRIOT Act six weeks after 9/11.92 That legislation was not as problematic as many presidential orders issued around the same time, but it quickly became a symbol of the Bush administration’s approach to the ‘War on Terror’.93 In the United Kingdom, Tony

91 See generally, Cole and Lobel, above n 7; Roach, The 9/11 Effect, above n 43; Ramraj et al, above n

43; Kent Roach, September 11: Consequences for Canada (McGill-Queen’s University Press, 2003);

Andrew Lynch, Edwina Macdonald and George Williams (eds), Law and Liberty in the War on Terror

(Federation Press, 2007); Andrew Lynch and George Williams, What Price Security? Taking Stock of

Australia’s Anti-Terror Laws (Federation Press, 2007); David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press, 2003); Benjamin J Goold and Liora

Lazarus (eds), Security and Human Rights (Hart, 2007).

92 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and

Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub L No 107-56, 115 Stat 272. See Philip A

Thomas, ‘Emergency and Anti-Terrorist Powers: 9/11 – USA and UK’ (2002-03) 26 Fordham

International Law Journal 1193, 1209-1210; John A E Vervaele, ‘The Anti-Terrorist Legislation in the

US: Inter Arma Silent Leges?’ (2005) 13(2) European Journal of Crime, Criminal Law and Criminal

Justice 201, 206-208; David L Harrison, ‘The USA PATRIOT Act: A New Way of Thinking, an Old

Way of Reacting, Higher Education Responds’ (2004) 5(2) North Carolina Journal of Law and

Technology 177; Beryl A Howell, ‘Seven Weeks: the Making of the USA PATRIOT Act’ (2003-04) 72

George Washington Law Review 1145.

93 Roach, The 9/11 Effect, above n 43, 175-176, 182, 184-186.

28 Blair’s government enacted legislation allowing the indefinite detention of non- citizens reasonably suspected of involvement in international terrorism.94 In Australia, the conservative Howard government enacted five Bills containing expanded surveillance powers, improved border security measures, and pre-emptive criminal offences.95 In Canada, the Chrétien government’s most controversial responses were new laws allowing for preventive arrests and investigative hearings.96 In these four countries, counter-terrorism financing measures (such as asset-freezing and the seizure of property) have also played an important role.97 These controversial powers have been continually supplemented in response to subsequent attacks, and aside from a few notable exceptions,98 most have become permanent features of domestic law.

94 Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, pt IV (now repealed). These powers were repealed after the House of Lords held that the government had derogated unlawfully from the right to liberty, and that the powers were incompatible with the right to freedom from discrimination: A v

Secretary of State for the Home Department [2004] UKHL 56.

95 Security Legislation Amendment (Terrorism) Act 2002 (Cth); Suppression of the Financing of

Terrorism Act 2002 (Cth); Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002

(Cth); Border Security Legislation Amendment Act 2002 (Cth); Telecommunications Interception

Legislation Amendment Act 2002 (Cth).

96 See Roach, The 9/11 Effect, above n 43, 390-393. These powers lapsed under a ‘sunset clause’ in

2007 but were re-enacted in 2013: see Combating Terrorism Act, SC 2013, c 9.

97 See Roach, The 9/11 Effect, above n 43, 179-180 (US), 259, 262-263, 265-266 (UK), 320-322 (Aus),

382-385 (Can).

98 Two key examples are the UK’s indefinite detention powers for non-citizen terrorist suspects in the

Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, pt IV (now repealed), and the control order regime which replaced them: Prevention of Terrorism Act 2005 (UK) c 2 (now repealed). See Chapter

Two, Part I(G).

29 These counter-terrorism laws can be described as hard power responses to

terrorism because they rely on coercive state action and the threat of such action.99

Arrest, temporary detention and imprisonment are all obvious examples of coercive

state powers because each involves a direct and immediate restriction on individual

liberty. Financing restrictions are not as immediate a restriction on liberty as arrest or

imprisonment, but they are still coercive in the sense that they forcibly deny

individuals access to their funds and assets, thereby limiting their freedom to live as

they choose.100 Search and surveillance powers are perhaps less obviously connected to the concept of hard power, but they can be classified under the same heading – either because they compel individuals to submit to an intrusive search of their person or premises, or, in the case of covert search and surveillance powers, because they directly increase the capacity of governments to disrupt terrorist attacks or to arrest and imprison individuals for terrorism offences. Each of these examples has in addition a deterrent effect. The threat of coercive state action implicit in each legislative power can be sufficient to influence behaviour by dissuading individuals from engaging in terrorist activity.

99 As per Nye’s definition of hard power: Nye, Soft Power, above n 2, 5; Nye, Bound to Lead, above n

10, 31.

100 See HM Treasury v Ahmed [2010] UKSC 2, in which Lord Hope (at [38], [60]) described the UK’s counter-terrorism financing restrictions as having a ‘devastating’ impact on individuals that effectively made them into ‘prisoners of the state’.

30 B Soft Power: CVE Programs

Some years after 9/11, a contrasting approach to counter-terrorism developed alongside these hard power responses. Facing an increased threat of home-grown terrorism, as well as rising discontent about the use of counter-terrorism laws in

Muslim communities, many Western governments developed social policy strategies

to counter the spread of terrorist ideology and radicalisation. These policy strategies

(which might collectively be called ‘countering violent extremism programs’ or ‘CVE

programs’) combine multiple approaches to preventing terrorism, including

community policing initiatives, interventions for individuals ‘at risk’ of radicalisation,

education programs, and broader efforts to improve social cohesion and integration.

The current national counter-terrorism strategies of the United Kingdom,

Australia and Canada all include a CVE program with broadly similar aims.101 The

aim of the ‘Prevent’ strand in Canada’s Counter-Terrorism Strategy, for example, is

to prevent radicalisation by ‘building partnerships with groups and individuals in

Canadian communities’.102 This involves community-policing initiatives such as the

National Security Community Outreach program, which is coordinated by the Royal

Canadian Mounted Police (RCMP).103 Similarly, the United States’ National Counter-

101 Home Office, CONTEST, above n 8, 58-77; Australian Government, Counter-Terrorism White

Paper, above n 6, 63-68; Government of Canada, Building Resilience Against Terrorism, above n 6,

14-15.

102 Government of Canada, Building Resilience Against Terrorism, above n 6, 14.

103 Ibid. See Royal Canadian Mounted Police, National Security Community Outreach (2011)

. The program aims to improve relations between the RCMP and ‘communities affected by national security investigations’.

31 Terrorism Strategy refers to engagement with ‘community concerns and interests’ as a

‘critical part’ of the Obama administration’s efforts to prevent domestic terrorism.104

Debates continue as to how extremism and radicalisation should be defined, and the social and economic factors that contribute to each.105 For the purposes of this thesis, what is important is that CVE programs can be described, at least on face value, as a soft power response to terrorism. This is because, whatever specific projects and programs a CVE program includes, they are all broadly designed to stop individuals from becoming terrorists by changing their motives, attitudes and ideology. This contrasts with the coercive and deterrent effect of counter-terrorism laws. As Nye explains, soft power involves changing others’ initial preferences

(‘getting others to want the outcomes you want’) rather than compelling others to act

104 United States Government, National Strategy for Counterterrorism (The White House, June 2011)

11.

105 See, eg, Alex P Schmid, ‘Radicalisation, De-Radicalisation, Counter-Radicalisation: A Conceptual

Discussion and Literature Review’ (International Centre for Counter-Terrorism, March 2013); Lorenzo

Vidino and James Brandon, Countering Radicalisation in Europe (International Centre for the Study of

Radicalisation and Political Violence, 2012); HM Government, Prevent Strategy (TSO, June 2011, Cm

8092) 17-21; House of Commons Communities and Local Government Committee, Parliament of

United Kingdom, Preventing Violent Extremism: Sixth Report of Session 2009-10 (HC 65, 30 March

2010) 24-34 (‘CLG Committee’); Jonathan Githens-Mazer and Robert Lambert, ‘Why Conventional

Wisdom on Radicalization Fails: The Persistence of a Failed Discourse’ (2010) 86(4) International

Affairs 889; King’s College London, Recruitment and Mobilisation for the Islamist Militant Movement in Europe (International Centre for the Study of Radicalisation and Political Violence, 2007); Rachel

Briggs, Catherin Fieschi and Hannah Lownsbrough, Bringing it Home: Community-Based Approaches to Counter-Terrorism (Demos, 2006).

32 against their initial preferences.106 Imagine, for example, that an individual intends to

kill large numbers of civilians by placing a bomb on a city street. Counter-terrorism

laws are a hard power response because, at a certain point, they would be used to

arrest, imprison or otherwise restrict the liberty of the individual contrary to those

intentions. CVE programs, by contrast, are a soft power response because they would

aim to change those intentions; they would aim to influence the individual so that he

or she does not want to place the bomb on the street in the first place. CVE programs

aim to do this by countering terrorist ideology, by cultivating a positive image of the

police, by supporting individuals at risk of radicalisation, and by improving

community relations.

C Smart Power Thinking

It is clear, then, that Western governments have relied on both hard and soft power in

their domestic responses to terrorism since 9/11. More precisely, soft power

developed alongside existing hard power responses as a crucial component of

Western counter-terrorism. This is to say that counter-terrorism laws and CVE

programs are similar in nature to the concepts of hard and soft power. This is notable

but of itself does not lead to any critical insights into counter-terrorism or smart

power thinking. What is more significant for the purposes of this thesis is how the

difference and relationship between counter-terrorism laws and CVE programs is

perceived, and how these perceptions have influenced the development of counter-

terrorism strategy.

106 Nye, Soft Power, above n 2, 5-7; Nye, Bound to Lead, above n 10, 31-32; Nye, The Future of

Power, above n 9, 11, 13.

33 The Global Counter-Terrorism Strategy, published by the United Nations

General Assembly in 2006,107 shows that counter-terrorism laws and CVE programs

are viewed according to the same three ideas that constitute smart power thinking.

First, like hard and soft power, counter-terrorism laws and CVE programs are viewed

as two distinct approaches to counter-terrorism. The Global Counter-Terrorism

Strategy clearly separates these approaches under the headings of ‘measures to

prevent and combat terrorism’ (hard power) and ‘measures to address the conditions

conducive to the spread of terrorism’ (soft power).108 Secondly, like soft power, CVE programs are viewed as morally preferable to counter-terrorism laws. Whereas counter-terrorism laws have created a range of recognised problems for human rights and the rule of law, including an evident backlash of resentment in Muslim communities,109 the General Assembly views CVE programs as a mechanism for

increasing religious tolerance and reducing marginalisation.110 Thirdly, like hard and

107 United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UN GAOR, 60th sess, UN Doc

A/RES/60/288.

108 United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UN GAOR, 60th sess, UN Doc

A/RES/60/288, 4-7.

109 See, eg, Cole and Lobel, above n 7, 146, 265; Christina Pantazis and Simon Pemberton, ‘From the

“Old” to the “New” Suspect Community’ (2009) 49 British Journal of Criminology 646. See also Gabe

Mythen, Sandra Walklate and Fatima Khan, ‘“I’m a Muslim, but I’m Not a Terrorist”: Victimization,

Risky Identities and the Performance of Safety’ (2009) 49 British Journal of Criminology 736; David

Anderson QC, The Terrorism Acts in 2012: Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 (TSO, July 2013) [9.17].

110 United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UN GAOR, 60th sess, UN Doc

A/RES/60/288, 4, [3] (calling on Member States to develop education and public awareness programs that will promote ‘respect for all religions, religious values, beliefs or cultures’); [6] (calling on

34 soft power, counter-terrorism laws and CVE programs are viewed as complementary.

Despite the ostensible benefits of CVE programs and the many recognised problems with counter-terrorism laws, CVE programs are viewed as a supplement to and not as a replacement for coercive legal measures. After recommending that Member States develop CVE programs to address the underlying causes of terrorism,111 the strategy recommends in addition a list of coercive legal measures such as arrest, prosecution, and financing restrictions.112 As in Nye’s theory, the underlying rationale is that counter-terrorism laws (hard power) will be used against individuals and groups who are involved in illegal activity, while CVE programs (soft power) will simultaneously be directed at the surrounding population.113

Academic commentators on domestic counter-terrorism have reinforced the second limb of smart power thinking with regard to CVE programs. McCulloch and

Member States to develop social inclusion agendas that have the potential to ‘reduce marginalization and the subsequent sense of victimization that propels extremism and the recruitment of terrorists’).

111 United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UN GAOR, 60th sess, UN Doc

A/RES/60/288, 4-5.

112 United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UN GAOR, 60th sess, UN Doc

A/RES/60/288, 5-7. These three ideas are reinforced by the first report of the UN Working Group on

Radicalisation, which was one of nine working groups established to implement the Global Counter-

Terrorism Strategy: First, the Working Group’s report suggests that CVE programs are ‘separate’ to coercive legal responses. Secondly, the report notes that CVE programs have the capacity to improve

‘dialogue, respect and understanding’, ‘social inclusion of the marginalized’, and ‘human rights and the rule of law’. Thirdly, the report suggests that CVE programs should be conceived as ‘additional to suppressive and coercive action’ (emphasis added): see Counter-Terrorism Implementation Task Force,

First Report of the Working Group on Radicalisation and Extremism that Lead to Terrorism: Inventory of State Programmes (2008) [2]-[3] .

113 See, eg, Home Office, Prevent Strategy, above n 6, 32 [6.41].

35 Pickering argue that Western governments should use non-punitive measures to target

the underlying causes of terrorism because this ‘raises none of the contentious issues

associated with … counter-terrorism legislation’.114 They invoke Nye in arguing that

this ‘soft power’ approach is ‘critical to a successful counter-terrorism strategy within

societies that are defined by high levels of cultural and religious diversity’.115

Similarly, in a prominent work on US counter-terrorism, Cole and Lobel argue that

the ‘best way forward’ in domestic counter-terrorism is to ‘favor noncoercive

preventive safeguards’, to ‘develop close positive ties with Arab and Muslim

communities’, and to ‘address the underlying factors that lead individuals and groups

to adopt terrorist tactics in the first place’.116

In short, more than a decade on from 9/11, the established position among

Western governments is that the most effective strategy for preventing domestic

terrorism is to combine two contrasting responses: counter-terrorism laws and CVE

programs. CVE programs are viewed as morally preferable to coercive counter-

terrorism laws because they have the capacity to increase religious tolerance and

reduce marginalisation. The idea is that CVE programs will work effectively

alongside counter-terrorism laws, and that this two-pronged strategy will prove more

effective in preventing terrorism than either approach taken in isolation.

114 Jude McCulloch and Sharon Pickering, ‘Pre-Crime and Counter-Terrorism: Imagining Future Crime in the “War on Terror”’ (2009) 49(5) 628, 640.

115 Pickering, McCulloch and Wright-Neville, Counter-Terrorism Policing, above n 7, 8. See also

Sharon Pickering, Jude McCulloch and David Wright-Neville, ‘Counter-Terrorism Policing: Towards

Social Cohesion’ (2008) 50 (1/2) Crime, Law and Social Change 91, 91.

116 Cole and Lobel, above n 7, 14, 265.

36 Like the concepts of hard and soft power, then, counter-terrorism laws and

CVE programs are viewed as two distinct approaches, one morally preferable to the

other, which are designed to work alongside each other in a two-pronged strategy.

This smart power approach to counter-terrorism has developed some years after initial

Western responses to 9/11, which focused heavily if not exclusively on hard power. In

this respect, smart power thinking has clearly emerged as the key strategic framework

guiding Western counter-terrorism in the second decade after 9/11.

III COUNTER-INSURGENCY

A Hard Power: Operation Iraqi Freedom

On 20 March 2003, the Bush administration launched Operation Iraqi Freedom, a

conventional warfare offensive that led to the fall of Baghdad after only three weeks

of combat operations. This was the epitome of hard power in action. Supported by

troops from the UK, Australia, and Poland, the US military unleashed ‘shock and

awe’: an overwhelming barrage of Tomahawk cruise missiles, bunker-busting bombs,

Abrams tanks, Bradley Fighting Vehicles and heavily armoured infantry divisions. On

1 May 2003, standing proudly atop the USS Abraham Lincoln in front of a banner

declaring ‘Mission Accomplished’, President Bush famously declared that ‘major

combat operations in Iraq have ended’ – a mistake he was later to regret.117

117 The White House, ‘President Bush Announces Major Combat Operations in Iraq Have Ended’, 1

May 2003 .

See Jon Ward, ‘Bush regrets “mission accomplished” banner’, Washington Times, 11 November 2008;

37 The hard power approach of shock and awe may have led quickly to the fall of

Baghdad, but it proved ill suited to the urban warfare that followed. Soon after the

initial invasion, US and Coalition forces faced a violent and growing insurgency in

Iraq, particularly in the Sunni Triangle encompassing Baghdad, Fallujah and Tikrit.

There were a number of contributing reasons: a security vacuum created by the

withdrawal of US troops from dangerous urban areas, the disbanding of the Iraqi

army and security services, and the policy of de-Ba’athification, which purged the

Iraqi civil service and left up to 120,000 Iraqi public servants unemployed.118 In

combination with other factors – existing sectarian tensions, the continuing presence

of foreign troops on Iraqi soil, and the torture of detainees in Baghdad’s Abu Ghraib

prison – these ill-advised strategic choices led to a dramatic escalation in violence.

What followed was not a conventional battle between military forces –

something the US military was well equipped to deal with – but rather a period of

‘insurgency’: an uprising of armed non-state actors characterised by suicide

bombings, rocket-propelled grenade (RPG) attacks and roadside bombings with

improvised explosive devices (IEDs). After the bombing of the Golden Dome

Mosque in Samarra on 22 February 2006, the insurgency escalated further still, with

Alexander Mooney, ‘Bush: “I regret saying some things I shouldn’t have said’, CNN (online), 11

November 2008 .

118 See Carter Malkasian, ‘Counterinsurgency in Iraq: May 2003—January 2010’ in Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern Warfare (Osprey, 2008) 287, 287-294;

Michael Eisenstadt and Jeffrey White, ‘Assessing Iraq’s Sunni Arab Insurgency’ (2006) (May/June)

Military Review 33; Toby Dodge, ‘What Were the Causes and Consequences of Iraq’s Descent into

Violence After the Initial Invasion?’, Submission to the Iraq Inquiry (UK)

38 the daily death toll in Baghdad tripling and a further 365,000 Iraqis made homeless.119

By mid-2006, sectarian violence between Iraq’s Sunni and Shiite factions was moving

towards full-blown civil war, al-Qaeda in Iraq (AQI) was intensifying its terror

campaign, and the US military was suffering its heaviest losses of the war.120 The world’s most powerful military machine was being worn down by a much smaller, irregular band of fighters, and it was clear that a change in strategy was needed.

B Soft Power: The Surge

That change came on 5 January 2007, when Defence Secretary Robert Gates announced that General David Petraeus would replace General George Casey as

Commander of the Multi-National Force in Iraq (MNF-I).121 Gates had only recently taken up his own post, replacing Donald Rumsfeld who had resigned after the

November 2006 mid-term elections.122 On 10 January 2007, amid continuing concerns over the handling of the war, President Bush addressed the US people to outline a ‘New Way Forward’ for their troops.123 Bush explained that he would counter the growing violence in Iraq by deploying more than 20 000 additional

119 David H Ucko, The New Counterinsurgency Era: Transforming the US Military for Modern Wars

(Georgetown University Press, 2009) 104; Thomas E Ricks, The Gamble: General Petraeus and the

Untold Story of Iraq, 2006-2008 (Allen Lane, 2009) 32-33.

120 See Ricks, above n 119, 34-37, 45, 55, 57.

121 Ucko, above n 119, 114.

122 Ucko, above n 119, 112-113; Ricks, above n 119, 74-77. In those elections, the Republican Party lost the majority they had previously held in both Houses of Congress.

123 George Bush, ‘President’s Address to the Nation’, 10 January 2007

whitehouse.archives.gov/news/releases/2007/01/20070110-7.html>.

39 troops, mostly into Baghdad.124 This rapid deployment came to be known as ‘The

Surge’. The first of the Surge troops – the 2nd brigade of the 82nd airborne division – arrived in eastern Baghdad in February 2007.125

The purpose of the Surge was not simply to boost troop numbers but also to

lead a new, ‘softer’ approach to warfare in Iraq. David Kilcullen, a former Australian

army officer and senior advisor to General Petraeus in Iraq, has described this as a

‘very different approach’ to the initial invasion and its aftermath.126 Instead of directly targeting insurgents with combat operations (an ‘enemy-centric approach’), the Surge introduced a ‘population-centric’ approach which was designed to protect and build relationships with Iraqi communities.127 Brigades were moved off large forward- operating bases and into smaller outposts where they could patrol their own local

‘beat’ with Iraqi police units.128 Soldiers were instructed to ‘Get out of your Humvees, get out of your tanks, your Brads [Bradley Fighting Vehicles], and walk around’.129

The military conducted a thorough census of Iraqi households (dubbed ‘Operation

Close Encounters’) in which soldiers interviewed community members about their

grievances.130 Interviewing soldiers were ordered to sit down, take off their helmets

and sunglasses, politely accept any food and drinks offered, and ‘speak respectfully’

124 The final number of troops was closer to 30 000, including a helicopter brigade and support troops:

Ricks, above n 119, 122.

125 Ibid 166.

126 Kilcullen, The Accidental Guerrilla, above n 27, 129. See also Ricks, above n 119, 163.

127 Kilcullen, The Accidental Guerrilla, above n 27, 128-129.

128 Ibid 129-130; Lieutenant-Colonel Jim Crider and Thomas Ricks, Inside the Surge: One

Commander’s Lessons in Counterinsurgency (Center for a New American Security, June 2009) 11.

129 Army Major Joseph Halloran, quoted in Ricks, above n 119, 166.

130 Crider and Ricks, above n 128, 11; Ricks, above n 119, 168.

40 with their hosts.131 Significant funds were invested in hybrid civilian-military units:

Provincial Reconstruction Teams (PRTs), first used in Afghanistan from 2002, relied on lawyers and engineers to improve governance and build infrastructure; Human

Terrain Teams (HTTs) relied on anthropologists to understand the Iraqi culture.132

These practices can be described as examples of soft power because of the

counter-insurgency principles on which they were based. Counter-insurgency is an

approach to irregular warfare that developed in the years following World War 2

when the British and French militaries faced violent uprisings in several of their

colonies. Thereafter, the term ‘insurgency’ came to describe a protracted campaign in

which non-state actors combine political and military tactics for the purpose of

overthrowing an established government.133 Counter-insurgency played an important

role during the Cold War period of decolonisation, although it was largely neglected

by the US military after Vietnam until it was revived by the so-called ‘Petraeus boys’

131 Ricks, above n 119, 168.

132 See, eg, Malkasian, above n 118, 299; Roberto J Gonzalez, American Counterinsurgency: Human

Science and the Human Terrain (Prickly Paradigm Press, 2009); Touko Piiparinen, Jacob Kipp et al,

‘The Human Terrain System: A CORDS for the 21st Century’ (2006) 86(5) Military Review 8; Major

General Roger Lane and Emma Sky, ‘The Role of Provincial Reconstruction Teams in Stabilization’

(2006) 151(3) The RUSI Journal 46; The White House, ‘Fact Sheet: Expanded Provincial

Reconstruction Teams Speed the Transition to Self-Reliance’, 13 July 2007

whitehouse.archives.gov/news/releases/2007/07/20070713.html>. The problems that PRTs and HTTs

pose for smart power thinking are addressed in Chapter Five.

133 For definitions of insurgency, see Frank Kitson, Low Intensity Operations: Subversion, Insurgency,

Peace-Keeping (Faber & Faber, 1971) 3; David Galula, Counterinsurgency Warfare: Theory and

Practice (Praeger Security International, first published 1964, 2006 ed) 2; FM 3-24, below n 136, [1-

2]; British Army Field Manual, below n 153, [1-10].

41 in Iraq.134 This revival has made counter-insurgency one of the most heavily debated topics in contemporary military literature.135

The contemporary US approach to counter-insurgency is set out in the famed

US Army/Marine Corps Counterinsurgency Field Manual No. 3-24 (‘FM 3-24’), which was written by Petraeus and a team of counter-insurgency experts and published, somewhat controversially, by the University of Chicago Press in 2007.136

Counter-insurgency is sometimes referred to as ‘graduate level warfare’ because

134 On the ‘Petraeus boys’ and the rise of the ‘warrior intellectual’, see Gonzalez, above n 133, 8-12;

Jeffrey H Michaels and Matthew Ford, ‘Bandwagonistas: Rhetorical Re-Description, Strategic Choice and the Politics of Counter-Insurgency’ (2011) 22(2) Small Wars & Insurgencies 352. For an account of Petraeus and his rising influence in Washington, see Ricks, above n 119, 15-31.

135 See, eg, Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern Warfare

(Osprey, 2008); John A Nagl, Learning to Eat Soup with a Knife: Counterinsurgency Lessons from

Malaya and Vietnam (University of Chicago Press, 2005); Paul B Rich and Isabelle Duyvesteyn (eds),

The Routledge Handbook of Insurgency and Counterinsurgency (Routledge, 2012); Douglas Porch,

‘The Dangerous Myths and Dubious Promise of COIN’ (2011) 22(2) Small Wars & Insurgencies 239;

Kalev I Sepp, ‘From “Shock and Awe” to “Hearts and Minds” The Fall and Rise of US

Counterinsurgency Capability in Iraq’ (2007) 28(2) Third World Quarterly 217; Jonathan Gilmore, ‘A

Kinder, Gentler Counter-Terrorism: Counterinsurgency, Human Security and the War on Terror’

(2011) 42(1) Security Dialogue 21. Indeed, counter-insurgency has become sufficiently influential that its principles are now expanding into other fields, such as constitutional and international humanitarian law: see Ganesh Sitaraman, The Counterinsurgent’s Constitution: Law in the Age of Small Wars

(Oxford University Press, 2013); Ganesh Sitaraman, ‘Counterinsurgency, the War on Terror, and the

Laws of War’ (2009) 95(7) Virginia Law Review 1745.

136 US Army/Marine Corps, Counterinsurgency Field Manual: US Army Field Manual No 3-24

(University of Chicago Press, 2007) (‘FM 3-24’). On plagiarism in FM 3-24 and the lack of the usual peer review process by the University of Chicago Press, see Gonzalez, above n 132, 10-12.

42 Petraeus and other influential ‘warrior scholars’ hold doctorates from prestigious

universities.137

Counter-insurgency is rather unhelpfully defined in FM 3-24 as the ‘military,

paramilitary, political, economic, psychological, and civic actions taken by a

government to defeat insurgency’.138 As Kilcullen notes, this means that counter-

insurgency is basically ‘whatever governments do to defeat rebellions’.139

Nonetheless, the overarching principle of counter-insurgency strategy is that

governments should aim to win the support of the general population by developing

infrastructure, improving governance, providing essential services and fostering

economic development (for ease of reference these efforts might collectively be

termed ‘civil reconstruction’).140 The underlying premise is that insurgents are only

capable of defeating a much larger, conventional military force because they are able

to hide amongst a surrounding population which either actively or tacitly supports the

insurgency.141 In Vietnam, for example, the Viet Cong were able to drain the

137 FM 3-24, above n 137; 1; Michaels and Ford, above n 134, 354; Gonzalez, above n 133, 8-9.

Petraeus holds a PhD in international relations from Princeton University, David Kilcullen holds a PhD in political science from the University of New South Wales, and John A Nagl holds a PhD in history from St Antony’s College, Oxford.

138 FM 3-24, above n 136, [1-2]. The British Army Field Manual similarly defines counter-insurgency as ‘[t]hose military, law enforcement, political, economic, psychological and civic actions taken to defeat insurgency, while addressing the root causes’: British Army Field Manual, below n 153, [1-11].

139 Kilcullen, Counterinsurgency, above n 27, 2.

140 See Robert Thompson, Defeating Communist Insurgency: Experiences from Malaya and Vietnam

(Chatto & Windus, 1974) 112; Kitson, above n 133, 50-51, FM 3-24, above n 137, [1-4], [1-113], [5-

42]-[5-49]; Kilcullen, The Accidental Guerrilla, above n 27, 265; Kilcullen, Counterinsurgency, above n 27, 218. This idea is explored in detail in Chapters Four and Five.

141 See Kilcullen, Counterinsurgency, above n 27, 7-8.

43 resources of a significantly more powerful opponent by hiding amongst the

population and emerging periodically to launch hit-and-run-style armed attacks. Mao

captured this idea by teaching his communist forces in the 1920s that the guerrilla

must ‘swim in the people like the fish swims in the sea’.142 According to counter- insurgency strategy, if the government can win the support of the population through civil reconstruction, the population will not allow the insurgents to hide among them, and the insurgents will be captured or killed by the government’s military forces.143

As Nye explains, soft power involves changing the initial preferences of

others so that they ‘want the outcomes you want’.144 Civil reconstruction in counter- insurgency is a soft power approach because its purpose is to change the preferences of the population – from supporting the insurgency to supporting the government’s campaign against the insurgents. The US military aims to do this through specific projects such as building roads, schools and medical clinics,145 but also more broadly

by encouraging economic development and exporting the values of democracy and

human rights. As FM 3-24 explains, counter-insurgency is about supporting a ‘free

market economy’, upholding the ‘full panoply of human rights’, and providing the

142 See Mao Tse-Tung, On Guerrilla Warfare (Samuel B Griffith trans, Illinois University Press, 2000)

8, 93.

143 See in particular, Thompson, above n 140, 56: ‘If the guerillas [sic] can be isolated from the population, i.e. the “little fishes” removed from “the water”, then their eventual destruction becomes automatic’.

144 Nye, Soft Power, above n 2, 5.

145 For examples of infrastructure projects in Iraq, see Special Inspector General for Iraq

Reconstruction (SIGIR), Learning From Iraq: A Final Report from the Special Inspector General for

Iraq Reconstruction (SIGIR, March 2013) 75-120.

44 population with ‘security under the rule of law’.146 Civil reconstruction in counter- insurgency is a soft power approach because it relies on the ‘attractive power’ of

Western culture.147

Of course, Iraq during the Surge did not become a purely ‘friendly’ affair.148

The military’s reliance on hard power may have reduced in comparison to the shock and awe approach of 2003, but hard power continued to play a central role through major combat operations. In June 2007, the US military launched Operation Phantom

Thunder, a coordinated offensive against AQI bases and networks throughout Iraq.

Phantom Thunder led to the deaths of nearly 2000 insurgents, the kill or capture of nearly 400 high-value targets, and the discovery of some 1100 weapons caches.149

Phantom Thunder formally concluded in August 2007, but major offensives against

AQI continued into 2008 under Operations Phantom Strike and Phantom Phoenix.150

146 FM 3-24, above n 136, [1-131], 156 [Figure 5-2], [D-38].

147 As per Nye’s definition of soft power: Nye, Soft Power, above n 2, 6.

148 Kilcullen is quick to debunk this myth of The Surge being a ‘soft’ approach to warfare, although he also participates in creating it: see Kilcullen, The Accidental Guerrilla, above n 27, 145: ‘This was not some sort of kindhearted, soft approach, as several armchair war-hawks claimed at the time from behind the safety of their desks in Washington and other distant cities. It was not about being “nice” to the population and hoping they would somehow see us as the “good guys” and stop supporting the insurgents’.

149 Institute for the Study of War, ‘Operation Phantom Thunder’ (2014)

; John Garamone, ‘Odierno describes Operation Phantom Thunder’ (2014)

46512>

150 Institute for the Study of War, ‘Operation Phantom Strike’ (2014)

; Institute for the Study of

45 This is, nonetheless, how the story of the Surge is portrayed: as a significant shift in emphasis towards soft power as the key to operational success. Nye recounts the Surge as follows:

By 2006, the American military was rediscovering the lessons of counterinsurgency

that had been almost deliberately forgotten after Vietnam, then obscured by the focus

on high-tech warfare, and finally relegated primarily to the branch of the special

forces. The U.S. Army /Marine Corps Counterinsurgency Field Manual [FM 3-24]

supervised by General David Petraeus adopted lessons from British, French, and

Vietnam experience to make securing the civilian population, rather than destroying

the enemy, the top priority. The real battle became one for civilian support to deny

the insurgent ‘fish’ the cover of the civilian ‘sea’ to swim in. Counterinsurgency,

commonly called ‘COIN’, downplayed offensive operations and emphasized winning

the hearts and minds of the civilian population … Soft power was integrated into

military strategy. Hard power was used to clear an area of insurgents and to hold it,

and the soft power of building roads, clinics and schools filled in behind.151

C Smart Power Thinking

It is clear that the US military relied on both hard and soft power during the recent

Iraq War. More precisely, soft power developed alongside hard power during the

Surge as a crucial component of US military strategy. As in counter-terrorism, however, what is more significant for the purposes of this thesis is how the difference

War, ‘Operation Phantom Phoenix (2014) .

151 Nye, The Future of Power, above n 9, 37.

46 and relationship between hard and soft power in counter-insurgency is perceived, and how these perceptions influence strategic choices in counter-insurgency campaigns.

The US might have pulled its last combat troops out of Iraq,152 but the following ideas reflect current US counter-insurgency doctrine in FM 3-24 and, as such, they continue to play an important role in the ongoing conflict in Afghanistan. A close analogue to

FM 3-24 exists in the current British Army Field Manual,153 which further suggests that this way of thinking will continue to shape Western military operations, both in the Middle East and elsewhere.

The contemporary US approach to counter-insurgency clearly reflects the three ideas that constitute smart power thinking. The first idea, perhaps obviously enough, is that armed force and civil reconstruction describe two distinct approaches to countering insurgencies. This is reflected in the views of Kilcullen and others who refer to civil reconstruction during the Surge as a ‘very different approach’ to the initial invasion and its aftermath.154 The second idea is that civil reconstruction is

152 At the time of writing, the Islamic State organisation (formerly the Islamic State of Iraq and Syria

[ISIS], also known as ISIL, and a derivative of al-Qaeda in Iraq) has recently taken control of several major cities across the country and has declared an Islamic caliphate in the region. The United States has deployed up to 750 military personnel to act as advisers to the Iraqi government and to protect the

US Embassy, although these troops will not, for the moment at least, be taking on a combat role: see

Chris Johnston, ‘Islamic State leader calls on all Muslims to aid “caliphate”’, The Guardian (London)

6 July 2014; Martin Chulov, ‘Iraq requests US air strikes as Isis insurgents tighten grip on oil refinery’,

The Guardian (London), 19 June 2014; Spencer Ackerman, ‘Obama sending additional troops to Iraq to safeguard US embassy’, The Guardian (London), 1 July 2014; Alissa J Rubin and Suadad Al-Salhy,

‘Iraqi Parliament wobbles over forming government’, The New York Times, 7 July 2014.

153 British Army, British Army Field Manual: Volume 1, Part 10 – Countering Insurgency (Army Code

71876, October 2009) (‘British Army Field Manual’).

154 Kilcullen, The Accidental Guerrilla, above n 27, 129; Ricks, above n 119, 163.

47 morally preferable to armed force. Civil reconstruction presented itself as a solution

to the excesses of combat operations in Iraq, which were not only ineffective in

countering the post-invasion insurgency but also counter-productive to the extent that

they generated substantial anti-American resentment. This is particularly evident in

FM 3-24’s attitude towards the use of force and human rights obligations. In contrast

to the shock and awe approach of 2003 – which caused immense collateral damage

and led to atrocities such as the torture of detainees in Abu Ghraib – FM 3-24

emphasises that excessive military force is counter-productive and that all prisoners of

war should be treated in accordance with the Geneva Conventions.155 This second idea is also broadly reflected in FM 3-24’s repeated references to counter-insurgency as a strategy for building legitimacy, upholding human rights and establishing the rule of law.156

The third idea is that armed force and civil reconstruction are complementary.

Despite its apparent benefits, civil reconstruction is viewed as a supplement to and not

as a replacement for armed force in counter-insurgency operations. FM 3-24 describes

combat operations and various aspects of civil reconstruction as mutually reinforcing

‘logical lines of operation’ (LLOs).157 It likens these LLOs to the strands of a rope: one strand alone cannot accomplish its task, but ‘a strong rope is created’ when these strands are ‘woven together’.158 This third limb of smart power thinking is also evident in the concept of a ‘clear-hold-build’ operation, to which Nye alludes in the

155 FM 3-24, above n 136, [7-38]-[7-44].

156 See ibid [1-131]-[1-132], [D-38].

157 Ibid [5-7]-[5-18].

158 Ibid [5-13].

48 above quotation.159 A clear-hold-build operation is a three-phase process in which armed force is first used to ‘clear’ a hostile area of insurgents and subsequently to

‘hold’ it so that the military can ‘build’ governance and infrastructure.160 Like

counter-terrorism laws and CVE programs in counter-terrorism, armed force and civil

reconstruction in counter-insurgency are viewed as the mutually reinforcing

components of a two-pronged, smart power strategy. Once again, the underlying logic

is that armed force (hard power) should be used against individuals who cannot be co-

opted or won over, while civil reconstruction (soft power) should be used

simultaneously to win the support of the surrounding population.161

Smart power thinking in counter-insurgency has a long history dating back to

the ‘classical’ British and French theorists writing in the early Cold War era. In

particular, smart power thinking in counter-insurgency can be traced back to the

Malayan Emergency of 1948-60, in which Sir Gerald Templer coined the now

ubiquitous phrase ‘winning hearts and minds’. When Templer took charge of the

British campaign against the communist insurgency in 1952, he remarked that he

would be successful only if he could ‘win the hearts and minds’ of two-thirds of the

Malayan population.162 Prior to Templer’s arrival, the British administration tried to

159 Nye, The Future of Power, above n 9, 37.

160 See FM 3-24, above n 136, [5-50]-[5-70]. This idea was first developed by Thompson, who suggested a three-stage process of ‘clear-hold-winning’: see Thompson, above n 140, 111-113.

161 See, eg, Kilcullen, Counterinsurgency, above n 27, 4: ‘Some insurgents at the irreconcilable extremes simply cannot be co-opted or won over; they must be hunted down, killed, or captured, and this is necessarily a ruthless process conducted with the utmost energy that the laws of war permit’.

162 See Dixon, above n 3, 361; Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 3, 101,

109.

49 defeat the insurgency by adopting a hard power approach based on emergency legal

powers such as preventive detention, collective punishments and forced relocation.163

Templer adapted this strategy by introducing a soft power approach in which

the members of ‘New Villages’ were provided with education, medical care, road and

rail access, food and clean water, and jobs on agricultural land.164 When the state of

emergency was formally lifted in 1960, Templer’s successes were lauded as the

model counter-insurgency campaign, and his efforts have since provided much of the

historical justification for counter-insurgency strategy, including its contemporary

form in FM 3-24.165 Sir Robert Thompson, who served under Templer as Permanent

Secretary for Defence in Malaya, wrote about his experiences and offered an early

version of smart power thinking. In Defeating Communist Insurgency, one of the key

works of classical counter-insurgency theory, Thompson explained that ‘[t]here

should be in the whole of the government’s approach an adroit and judicious mixture

of ruthlessness and sympathy’.166

163 See, eg, Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 3, 103; Nagl, above n

135, 63-68; Richard Stubbs, Hearts and Minds in Guerrilla Warfare: The Malayan Emergency 1948-

1960 (Oxford University Press, 1989) 66-92; Mark Moyar, A Question of Command:

Counterinsurgency from the Civil War to Iraq (Yale University Press, 2009) 112-114; Anthony Short,

The Communist Insurrection in Malaya: 1948-1960 (Frederick Muller, 1975) 138-142; John

Newsinger, British Counterinsurgency: From Palestine to Northern Ireland (Palgrave, 2002) 45. The

Malayan Emergency is explored in detail in Chapter Four.

164 See Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 3, 111; Stubbs, Hearts and

Minds in Guerrilla Warfare, above n 163, 169-173; Nagl, above n 135, 75; Newsinger, above n 163,

56.

165 See FM 3-24, above n 136, xxiv.

166 Thompson, above n 140, 146.

D Conclusions

Smart power thinking has a much longer pedigree in counter-insurgency than in

counter-terrorism, in which the combination of counter-terrorism laws and CVE

programs is a relatively recent phenomenon. Nonetheless, in both counter-terrorism

and counter-insurgency, smart power thinking has recently played a dominant role in

shaping the policy choices of Western governments. This has happened in different

contexts for different reasons: counter-insurgency operations in the streets of Baghdad

are clearly of a different nature to counter-terrorism operations in the streets of New

York, London or Sydney. Counter-terrorism and counter-insurgency are nonetheless similar in the importance they ascribe to smart power thinking. More than a decade on from legal responses to 9/11 and the invasion of Iraq, the established position among

Western governments is that political violence should be countered by two distinct

approaches – one based in hard power, the other based in soft power. In both domestic

counter-terrorism after 9/11 and the Iraq War, soft power developed alongside hard

power and is viewed as morally preferable to hard power. And in both counter-

terrorism and counter-insurgency, hard and soft power approaches are viewed as the

mutually reinforcing components of a two-pronged strategy. In this broad strategic

sense, smart power thinking has clearly emerged as the key conceptual framework

guiding Western efforts to counter political violence, both at home and abroad.

51 IV INVESTIGATING SMART POWER THINKING

Much has been written in recent years about the relationship between counter- terrorism and counter-insurgency.167 There is an historical relationship between these two fields,168 as well as important links in contemporary practice. For example, it is difficult to neatly separate counter-terrorism and counter-insurgency with regard to al-

Qaeda’s role in provoking sectarian conflict in Iraq. Prominent commentators have also offered contrasting views as to the strategic and theoretical insights that counter- insurgency can provide into domestic counter-terrorism.169 The most famous of these is Kilcullen’s ‘global insurgency’ thesis.170 The global insurgency thesis suggests that domestic terrorism in various regional theatres is linked in a complex transnational insurgency, and that Western governments should therefore apply the principles of counter-insurgency on a global scale. For example, Kilcullen suggests that the

167 See, eg, Kilcullen, The Accidental Guerrilla, above n 27; Kilcullen, Counterinsurgency, above n 27,

165-226; Kilcullen, ‘Counter-insurgency Redux’, above n 27; Kilcullen, ‘Countering Global

Insurgency’, above n 27; Mockaitis, The ‘New’ Terrorism, above n 27, 113-114; Mockaitis, ‘Winning

Hearts and Minds in the “War on Terrorism”’, above n 27; Mackinlay, above n 27; Cassidy, above n

27; Roper, above n 27; Hoffman, above n 27; Campbell and Weitz, above n 27; Kowalski, above n 27;

Boyle, above n 27.

168 See especially Michael Burleigh, Blood and Rage: A Cultural History of Terrorism (Harper

Perennial, 2009) 88-151 (Chapter on ‘Terror and Decolonisation’).

169 See text to above n 167. Cf McCulloch and Pickering, ‘Pre-Crime and Counter-Terrorism’, above n

114, 636-637; David Miller and Rizwaan Sabir, ‘Counter-Terrorism as Counterinsurgency in the UK

“War on Terror”’ in Scott Poynting and David White (eds), Counter-Terrorism and State Political

Violence (Routledge, 2012) 12.

170 Kilcullen, Counterinsurgency, above n 27, 165-226; Kilcullen, ‘Counter-insurgency Redux’, above n 27; Kilcullen, ‘Countering Global Insurgency’, above n 27.

52 international community should protect women’s rights, improve access to education,

and create ‘effective representational bodies’ for the world’s Muslim populations.171

These are important issues, but for the purposes of this thesis, the only

relevant relationship between counter-terrorism and counter-insurgency is that these two fields both rely upon and reinforce smart power thinking. In both counter- terrorism and counter-insurgency, it is widely accepted that governments should rely on two distinct approaches, one morally preferable to the other, which should be combined in a two-pronged strategy. This aligns closely with Nye’s theory. In domestic counter-terrorism, counter-terrorism laws and CVE programs play the roles of hard and soft power in a smart power strategy; in foreign counter-insurgency, these roles are played by armed force and civil reconstruction.

If Nye’s support for smart power is well founded, it would seem that Western governments have arrived at the best available approach to countering political violence. Smart power seemingly provides a strategic compromise which is neither too hard – like initial legal responses to 9/11 and the invasion of Iraq – nor too soft.

Nye certainly gives this impression with his support of soft power in counter- terrorism and counter-insurgency:

In the fight against terrorism … it is essential to have a narrative that appeals to the

mainstream and prevents its recruitment by radicals. In the battle against

insurgencies, kinetic military force must be accompanied by soft power instruments

that help to win over the hearts and minds (shape the preferences) of the majority of

the population.172

171 Kilcullen, Counterinsurgency, above n 27, 218-219.

172 Nye, The Future of Power, above n 9, 19-20.

Nye does not go into any detail on soft power in domestic counter-terrorism, but he is

vocal in his support for counter-insurgency, grouping Petraeus in a class of

‘[s]ophisticated military men’ who have ‘long understood that battles are not won by

kinetic effects alone’.173 Nye recognises that a counter-insurgency campaign may not be the most appropriate policy choice in every situation,174 but he otherwise praises the general approach. He remarks that counter-insurgency is ‘attractive as a doctrine in the way that it pays careful attention to the tactical balancing of hard and soft power’.175

And yet, what is striking about smart power responses to political violence is

that they have frequently failed to mitigate the detrimental effects of coercion. In

many cases they have simply aggravated the problems created by existing hard power

strategies. As discussed in Chapter Two, soft power responses to terrorism in the UK

have been heavily criticised for further alienating Muslim communities and for

confusing counter-terrorism and community integration.176 As discussed in Chapters

Four and Five, counter-insurgency campaigns have attracted criticism on several grounds, including that they disempower local communities and shape foreign cultures in accordance with the strategic interests of the West.177 Many of these issues

173 Ibid 43.

174 Ibid 230.

175 Ibid.

176 See discussion in Chapter Two, Part III(B) and IV(A). See especially CLG Committee, above n 106.

177 See Chapter Four, Part IV; Chapter Five; Part IV(C). See especially Colleen Bell, ‘Hybrid Warfare and Its Metaphors’ (2012) 3(3) Humanity 225; Moritz Feichtinger, Stephan Malinowski and Chase

Richards, ‘Transformative Invasions: Western Post-9/11 Counterinsurgency and the Lessons of

Colonialism’ (2012) 3(1) Humanity 35; Porch, above n 135; Sepp, above n 135; Gilmore, above n 135.

54 resemble those that Nye discounts in developing his theory, which gives significant reason to doubt the supposed benefits and theoretical foundations of smart power.

The aim of this thesis is therefore to critically examine Nye’s theory by

exploring the tensions, problems and complexities underlying smart power

approaches to counter-terrorism and counter-insurgency. More specifically, this thesis

undertakes detailed case studies of counter-terrorism and counter-insurgency in order

to explore the blurring between hard and soft power, the ways in which soft power

impacts negatively on autonomy, and the ways in which hard and soft power conflict.

The thesis asks: does smart power thinking provide a valid and useful conceptual

framework for countering political violence, or can Nye’s theory be improved upon

such that it addresses these evident tensions, problems, and complexities?

The thesis is divided into two parts – one focused on counter-terrorism, the

other on counter-insurgency – with two substantive case studies in each. The purpose

of these case studies is to test the three components of smart power thinking across

different but related contexts. To this end, each case study considers three key

questions which align with the components of smart power thinking. First, to what

extent are hard power and soft power distinct? Secondly, to what extent is soft power

morally preferable to hard power (i.e. to what extent does soft power allow

individuals greater autonomy than hard power)? Thirdly, to what extent are hard

power and soft power complementary (i.e. to what extent are hard and soft power

compatible, to what extent is combining hard and soft power effective, and to what

extent are governments capable of rebalancing their existing reliance on hard power)?

The conclusion returns to these three questions and draws some general insights into

smart power thinking. It does so by considering in greater detail the benefits and

dangers of relying upon smart power thinking in the face of recurring evidence to the

55 contrary. It provides recommendations as to how governments might craft more complex and nuanced smart power strategies that address the shortcomings of smart power thinking.

Part One focuses on domestic counter-terrorism in the United Kingdom

(Chapter Two) and Australia (Chapter Three). The UK is an obvious case study: its counter-terrorism laws provided a template for many Western governments legislating to prevent terrorism after 9/11,178 and its Prevent strategy is the key example of a national CVE program.179 Australia is a natural comparator: the Australian

178 See Kent Roach, ‘The Post-9/11 Migration of Britain’s Terrorism Act 2000’ in Sujit Choudhry (ed),

The Migration of Constitutional Law (Cambridge University Press, 2006) 374-202.

179 Prevent Strategy 2011, above n 6. The Prevent strategy has received significant funding and attention compared to CVE programs in other Western nations: as a comparison between the UK and

Australia, for example, the Prevent strategy received £140m in 2008/9, whereas the Australian government has only recently devoted $9.7m to a similar national program for ‘building resilient communities’: see Home Office, Pursue Prevent Protect Prepare: The United Kingdom’s Strategy for

Countering Terrorism (TSO, March 2009, Cm 7547) 12. Cf Commonwealth Attorney-General’s

Department, Countering Violent Extremism (2010) ; Australian Government,

Resilient Communities (2012) . The Prevent strategy has also been the subject of major parliamentary review and has generated substantial academic literature: see, eg,

CLG Committee, above n 105; House of Commons Home Affairs Committee, Parliament of United

Kingdom, Roots of Violent Radicalisation: Nineteenth Report of Session 2010-12 (HC 1446, 6

February 2012); Githens-Mazer and Lambert, above n 105; Rachel Briggs, ‘Community Engagement for Counterterrorism: Lessons from the United Kingdom’ (2010) 86(4) International Affairs 971-981;

Arun Kundnani, Spooked! How Not to Prevent Violent Extremism (Institute of Race Relations, 2009);

Paul Thomas, ‘Failed and Friendless: The UK’s “Preventing Violent Extremism” Programme’ (2010)

12(3) British Journal of Politics and International Relations 442; Charlotte Heath-Kelly, ‘Reinventing

Prevention or Exposing the Gap? False Positives in UK terrorism governance and the Quest for Pre-

Emption’ (2012) 5(1) Critical Studies on Terrorism 69; Suraj Lakhani, ‘Preventing Violent Extremism:

56 government looked directly to the UK when drafting its own legal responses to 9/11 and the London bombings,180 and the two countries share a number of obvious legal, political and cultural ties, such as a commitment to parliamentary democracy and the rule of law. There are also important differences between the UK and Australia which allow for fertile comparison. For example, Australia has not experienced a major

Islamist terrorist attack on its own soil and it has a lower relative Muslim population.181 As discussed in Chapter Three,182 these factors might explain why

Australia has developed soft power responses to terrorism that conform more closely to Nye’s theory compared to those found in the UK’s Prevent strategy.

It might seem that the United States would provide a more appropriate case study of smart power thinking in domestic counter-terrorism than the UK and

Perceptions of Policy from Grassroots and Communities’ (2012) 51(2) The Howard Journal 190;

Yahya Birt, ‘Promoting Virulent Envy’ (2009) 154(4) The RUSI Journal 52; Anthony Richard, ‘The

Problem with “Radicalization”: The Remit of “Prevent” and the Need to Refocus on Terrorism in the

UK’ (2011) 87(1) International Affairs 143.

180 Most notably, the Australian definition of terrorism in s 100.1 of the Criminal Code Act 1995 (Cth) largely recreated the UK definition in s 1 of the Terrorism Act 2000 (UK) c 11, and the Australian control order regime in div 104 of the Criminal Code Act 1995 (Cth) largely recreated the (now repealed) UK control order regime in the Prevention of Terrorism Act 2005 (UK) c 2. See Roach, ‘The

Post-9/11 Migration of Britain’s Terrorism Act 2000’, above n 178; Roach, The 9/11 Effect, above 43,

318, 334-335, 340.

181 See, eg, Scott Poynting and Victoria Mason, ‘“Tolerance, Freedom, Justice and Peace”?: Britain,

Australia and Anti-Muslim Racism Since 11 September 2001’ (2006) 27(4) Journal of Intercultural

Studies 365, 370-371; Scott Poynting and Victoria Mason, ‘The New Integrationism, The State and

Islamophobia: Retreat from Multiculturalism in Australia’ (2008) 36 International Journal of Law,

Crime and Justice 230, 231.

182 See Chapter Three, Part III.

57 Australia, considering that Nye has written largely for a US audience. There are four

main reasons why the UK and Australia have been chosen as case studies instead of

the United States. The first reason is that the Bush and Obama administrations have

given far less attention to implementing a national CVE program compared to the UK

and Australian governments. Whereas the UK and Australian governments began

developing soft power responses to terrorism at the national level as early as 2005,183

it was not until August 2011 that the White House published a national counter-

terrorism strategy for ‘empowering local communities’,184 and even then the

document was only eight pages long. Before that strategy was published, the Obama

administration ‘largely refrained from engaging in counter-radicalisation efforts and

instead focused on tactical counterterrorism measures’, such as drone strikes in the

border areas of Pakistan.185 Given this lack of investment in soft power responses to terrorism, the United States could learn a lot from the UK and Australian experiences

– both as to the potential benefits of CVE programs and their evident problems and

dangers.

A second reason is that it would be impossible to consider the Bush and

Obama administrations’ domestic responses to terrorism without taking into account

the wider context of the counter-insurgency campaigns in Iraq and Afghanistan. The

183 Thomas, ‘Failed and Friendless’, above n 179, 443; Council of Australian Governments’

Communiqué, Special Meeting on Counter-Terrorism (Australian Government, 27 September 2005)

184 The White House, Empowering Local Partners to Prevent Violent Extremism in the United States

(The White House, 2011). See also The White House, Strategic Implementation Plan for Empowering

Local Partners to Prevent Violent Extremism in the United States (The White House, 2011).

185 Lydia Khalil, US Counter-Radicalisation Strategy: The Ideological Challenge (Australian Strategic

Policy Institute, 2012) 3.

58 aim of this thesis is to investigate the insights that counter-terrorism and counter-

insurgency – as two related but ultimately separate fields – can provide into smart power thinking. A case study that blurred the lines so significantly between counter- terrorism and counter-insurgency would confuse this inquiry. By contrast, it is possible to consider the UK and Australian governments’ domestic responses to terrorism in relative isolation from their military contributions to the wars in the

Middle East.

A third reason is that Nye and others have already critiqued US responses to

terrorism with regard to hard and soft power – largely to argue that the invasion of

Iraq in 2003 relied excessively on hard power and undermined US soft power as a

result.186 The UK and Australia provide new case studies of how hard and soft power operate in the counter-terrorism context. The fourth and final reason is that the concepts of hard and soft power have traditionally been used to analyse foreign policy, and their relevance to domestic law and policy remains unclear. Some commentators on domestic counter-terrorism use ‘hard power’ and ‘soft power’ as shorthand for coercive laws and community policing practices, but they have done so without discussing Nye’s theory in any detail.187 To date, therefore, there has been no

sustained analysis of Nye’s theory in the context of domestic counter-terrorism.

Whereas foreign military operations in the Middle East are crucial to understanding

the US government’s responses to terrorism, the UK and Australia provide case

186 See Nye, Soft Power, above n 2, xi-xii, 127-134; Gallarotti, above n 85, 180-201.

187 Pickering, McCulloch and Wright-Neville, Counter-Terrorism Policing, above n 7, 8; Pickering,

McCulloch and Wright-Neville, ‘Counter-Terrorism Policing’, above n 115, 91; Innes, above n 41,

232-234.

59 studies of counter-terrorism that are sufficiently isolated from foreign policy

questions to explore the relevance of hard and soft power in a domestic setting.

Part Two tests smart power thinking with regard to classical counter-

insurgency (Chapter Four) and contemporary counter-insurgency (Chapter Five).

Chapter Four examines the basic principles of counter-insurgency strategy and the

events of the Malayan Emergency.188 The Malayan Emergency is an important case

study because it is the key historical event that gave rise to smart power thinking in

counter-insurgency. Chapter Five examines the contemporary US approach to

counter-insurgency in FM 3-24 and its application during the Surge in Iraq.

There are many counter-insurgency campaigns throughout the 20th century

which could have been selected as case studies.189 For reasons explained in greater detail in Chapter Four, the Malayan Emergency has been selected for two reasons: (1) it is considered a successful counter-insurgency campaign, and (2) victory is commonly attributed to the government’s ability to develop a smart power strategy.190

Indeed, Malaya is the only significant counter-insurgency campaign in the colonial

era which satisfies these two criteria.191 For this reason, Malaya holds something of a

188 The principles of classical counter-insurgency strategy are set out in Kitson, above n 133; Galula, above n 133; Thompson, above n 140. See Chapter Four, Part I.

189 For a range of historical counter-insurgency campaigns, see Marston and Malkasian, above n 135;

Newsinger, above n 163.

190 See Chapter Four, Parts II(A), II(D).

191 See ibid. Another possible candidate is the British campaign in Oman (1965-1975), although it was a small-scale conflict and most historians attribute victory to the efforts of Britain’s Special Air Service

(SAS) in the Battle of Mirbat: Newsinger, above n 163, 147, 150. See discussion in Chapter Four, Part

II(A).

60 mythical status amongst counter-insurgency experts.192 Without Sir Gerald Templer’s efforts to ‘win hearts and minds’, it is unlikely that the classical counter-insurgency theorists would have ascribed such importance to smart power thinking, and it is unlikely that a smart power approach would subsequently have proved so influential in shaping contemporary military operations in the Middle East. In other words, the

Malayan Emergency provides the historical foundations on which counter-insurgency experts build their claims about the benefits of combining hard and soft power.

The Surge further contributes to this idea that governments can defeat insurgencies by developing smart power strategies. According to the popular narrative, General Petraeus and his team of experts saved the US military from ignominious defeat in Iraq by applying an updated version of classical counter- insurgency principles. Petraeus’ approach is recorded in FM 3-24, and if book sales and Internet downloads of the manual are any indication, then the story of the Surge has certainly captured the public consciousness.193 In this respect, the Surge

192 For example, John Nagl describes the Malayan Emergency as a ‘rare’ and ‘remarkable’ example of a counter-insurgency campaign: see Nagl, above n 135, 107. The British Army Field Manual explains that the conflict is ‘generally defined as the most successful British campaign, and one that has provided much of the doctrine for current British operations’: British Army Field Manual, above n 153,

CS5-1 [1].

193 The field manual was downloaded 1.5 million times in the first month that it was posted online: FM

3-24, above n 136, xvii. The US media described the manual as ‘landmark’, ‘paradigm-shattering’,

‘revolutionary’ and ‘Zen-tinged’: Gonzalez, above n 132, 10. Lucas notes that ‘[s]omething is seriously awry, when an official government publication, especially a military field manual, can make compelling reading’: George R Lucas, ‘The Morality of “Military Anthropology’ (2008) 7(3) Journal of Military Ethics 165, 165. Other best-selling books by prominent journalists have also recounted the story of the Surge: see Ricks, above n 119; Bob Woodward, The War Within: A Secret White House

2006-2008 (Simon & Schuster, 2008).

61 contributes to the idea first established in Malaya that smart power is the key to

victory in counter-insurgency.

This is why Iraq has been chosen as a case study over Afghanistan, where the

development of counter-insurgency principles was incremental and attracted far less

attention.194 In addition, the fact that the US military has withdrawn its combat troops

from Iraq means that the conflict (or at least the period during which the Surge troops

were deployed) can be considered as a relatively complete case study.195 This is not

the case with the ongoing conflict in Afghanistan, where the results are not yet clear.

In combination, these four case studies (UK counter-terrorism, Australian

counter-terrorism, the Malayan Emergency and the Iraq War) test smart power

thinking across a range of relevant contexts and variables: domestic/foreign, major

power/middle power, peacetime/wartime, civil/military and contemporary/historical.

This ensures that the conclusions drawn in Chapter Six about the validity and

usefulness of smart power thinking are informed by a broad spectrum of state

responses to political violence. In particular, each case study describes a similar and

now familiar scenario: a government responds initially to a threat of political violence

by relying excessively on coercion, and then attempts to rectify that hard power

strategy by increasing its reliance on soft power. The following chapters consider

whether this pervasive and influential smart power logic needs rethinking.

194 See Daniel Marston, ‘Realizing the Extent of Our Errors and Forging the Road Ahead: Afghanistan

2001—2010’ in Daniel Marston and Carter Malkasian, Counterinsurgency in Modern Warfare

(Osprey, 2008) 251.

195 See text to above n 152. While serious, recent events involving the Islamic State organisation do not change the results of the Surge, as the final Surge troops were withdrawn in July 2008. To some extent, these recent events do, however, support the idea that the success achieved by Petraeus’ smart power strategy is generally overstated: see discussion in Chapter Five, Part V(B).

PART ONE: COUNTER-TERRORISM

63 2

SMART POWER THINKING IN UK COUNTER-TERRORISM

Introduction

Effective security measures, intelligence and policing are essential. But ultimately,

modern terrorism will be defeated only by addressing the political and social issues

by a debate about values, by democracy and by public solidarity. That is why we are

working with all communities to tackle the social factors underlying radicalisation.1

- Home Secretary John Reid introducing the Prevent strategy in July 2006

A smart power approach to counter-terrorism can clearly be seen in the pairing of the

Pursue and Prevent strands of the United Kingdom’s (UK’s) national strategy for

countering terrorism, known as ‘CONTEST’.2 The Pursue strand of CONTEST

contains a range of hard power legal measures – including criminal offences, counter-

terrorism financing measures and special investigative powers – which are designed

1 Parliament of the United Kingdom, Hansard, House of Commons, 10 July 2006, vol 448, col 1116

(John Reid).

2 Home Office, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (TSO, July

2011, Cm 8123) (‘CONTEST 3’).

64 to coerce individuals and deter them from becoming involved in terrorism.3 The

Prevent strand (or ‘Prevent strategy’), by contrast, is a national program for countering terrorist ideology and radicalisation that relies heavily on soft power.4

This chapter tests the three core ideas underlying smart power thinking by

mapping and analysing the UK’s hard and soft power responses to terrorism. It

focuses on counter-terrorism law and policy that operates within the domestic sphere,

and not with military commitments or other international responses to terrorism in

which the UK has been involved. Part I sets out the UK’s hard power legal responses

to terrorism. It explains key aspects of these domestic laws and provides some

necessary background and context on their enactment. Part I focuses on the legislation

as it currently stands, but it also assesses the extent to which the Coalition government

has amended the laws of the previous Labour governments.5 This is necessary for

later sections, which rely on the Coalition government’s approach to assess whether

there are limits to achieving a smart power strategy in domestic counter-terrorism.

Part II sets out the UK’s soft power responses to terrorism in the Prevent

strategy. It provides some necessary background on the development of Prevent and

CONTEST before setting out the UK’s soft power responses to terrorism in five

categories. As in Part I, this section focuses on current responses, but it also explains

some key differences between the Labour and Coalition governments’ approaches.

Parts III-V test the three components of smart power thinking by assessing

whether Nye’s theory accurately describes the difference and relationship between

3 See ibid 44-56.

4 Home Office, Prevent Strategy (TSO, June 2011, Cm 8092) (‘Prevent Strategy 2011’).

5 See Home Office, Review of Counter-Terrorism Powers: Review Findings and Recommendations

(TSO, January 2011, Cm 8004).

65 hard and soft power in UK counter-terrorism. First, Part III considers the extent to which the UK’s hard and soft power responses to terrorism are distinct. Next, Part IV considers the extent to which the UK’s soft power responses to terrorism are morally preferable to the UK’s hard power responses to terrorism. To do so, Part IV considers three ways in which legal responses to terrorism impact negatively on autonomy. In each respect, it compares the impact of soft power responses to terrorism in Prevent.

Lastly, Part V considers the extent to which the UK’s hard and soft power responses to terrorism are complementary. As foreshadowed in the previous chapter,6 it does so by considering the extent to which the UK’s hard and soft power responses to terrorism are compatible, the extent to which combining hard and soft power has proved effective, and the extent to which the UK government was capable of rebalancing its existing reliance on hard power to create a smart power strategy.

I HARD POWER IN UK COUNTER-TERRORISM

Unlike most Western nations, the UK had significant experience in responding to domestic terrorism when the Twin Towers fell on 9/11. As explained below, Tony

Blair’s Labour government had enacted broad and permanent counter-terrorism powers more than 12 months before the 9/11 attacks. These powers were supplemented by the Blair government in response to 9/11 and the London bombings in July 2005, and again by the Brown government in 2008.7 Between 2010 and 2014,

6 Chapter One, Part I(C).

7 Anti-Terrorism, Crime and Security Act 2001 (UK) c 24; Terrorism Act 2006 (UK) c 11; Counter-

Terrorism Act 2008 (UK) c 28.

66 the Coalition government amended some of the Labour governments’ counter- terrorism laws in what has been described as a process of ‘cautious liberalisation’.8

This section sets out the UK’s hard power legal responses to terrorism. It does not aim to comprehensively address all the issues raised by these laws. Rather, the aim of this section is to provide a broad overview of the different ways in which the

UK government uses hard power to prevent terrorism, and to assess the extent to which the Coalition government has amended the previous Labour governments’ counter-terrorism laws. Later sections assess how these hard power legal responses differ from and interact with soft power responses to terrorism in the Prevent strategy.

A Definition of Terrorism

Although not strictly a hard power measure in itself, the UK’s definition of terrorism in s 1 of the Terrorism Act 2000 (UK) (TA2000) determines the scope of most

8 David Anderson QC, The Terrorism Acts in 2012: Report of the Independent Reviewer on the

Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 (TSO, July 2013) 12. These later amendments were influenced by a growing sense of security in the UK, by important court decisions on Labour’s counter-terrorism laws, and by the influence of the Liberal-Democrats within the

Coalition government: Anderson, above n 9, 12 [1.8]. On the increasing recognition given to human rights norms in UK counter-terrorism, see Aileen Kavanagh, ‘Constitutionalism, Counterterrorism, and the Courts: Changes in the British Constitutional Landscape’ (2011) 9(1) International Journal of

Constitutional Law 172; Helen Fenwick and Gavin Phillipson, ‘UK Counter-Terror Law Post-9/11:

Initial Acceptance of Extraordinary Measures and the Partial Return to Human Rights Norms’ in Victor

V Ramraj et al (eds), Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed,

2012) 481; cf Ed Cape, ‘The Counter-Terrorism Provisions of the Protection of Freedoms Act 2012:

Preventing Misuse or a Case of Smoke and Mirrors?’ (2013) 5 Criminal Law Review 385.

67 criminal offences and other coercive powers in the UK’s counter-terrorism laws. The

TA2000 was enacted 14 months before 9/11 when the Blair government consolidated its temporary and emergency powers relating to terrorism in Northern Ireland.9 Many

of the UK’s temporary and emergency powers relating to terrorism in Northern

Ireland had been renewed into de facto permanency, but they could be used only

against terrorism related to Northern Ireland and not against international terrorist

groups.10 When introducing the TA2000 into Parliament, Home Secretary Jack Straw explained that the UK needed general counter-terrorism powers to address the possibility of a terrorist attack on UK soil by an organisation operating outside the

UK. He gave the example of Aum Shinrikyo, the millenarian cult that had killed 13 people and injured some 50 others by releasing sarin gas into the Tokyo subway in

1999.11 In contrast to most other Western nations, therefore, the UK had enacted extensive and permanent counter-terrorism powers before 9/11 for a broad, general purpose. It was only after 9/11, when the Blair government introduced further counter-terrorism powers through the Anti-Terrorism, Crime and Security Act 2001

9 See Northern Ireland (Emergencies Provisions) Act 1973 (UK) c 53; Prevention of Terrorism

(Temporary Provisions) Act 1974 (UK) c 56; Prevention of Terrorism (Temporary Provisions) Act

1989 (UK) c 4; Northern Ireland (Emergency Provisions) Act 1996 (UK) c 22.

10 The legislation extended to certain categories of international terrorism but did not apply generally to domestic terrorism in the UK: see Terrorism Act 2000 (UK) c 11, Explanatory Notes, [8].

11 United Kingdom, Parliamentary Debates, House of Commons, 14 December 1999, vol 341, col 159

(Jack Straw).

68 (UK) (ATCSA 2001), that debates surrounding UK counter-terrorism laws focused specifically on the threat of terrorism posed by al-Qaeda and similar organisations.12

The definition of terrorism in s 1 of the TA2000 sets out three main requirements for an act to qualify as ‘terrorism’.13 The first is an intention requirement. It requires that an act of terrorism be designed to influence a government or international governmental organisation or to intimidate a section of the public.14

The second is commonly referred to as a motive requirement. It requires that an act of terrorism be committed for the purpose of advancing a political, religious, racial or ideological cause.15 The third is a harm requirement. Sub-section (2) lists a range of alternative harms that an act needs to cause in order to qualify as terrorism, including

‘serious violence against a person’ and ‘serious damage to property’.16 Sub-section

(2) sets a low threshold as the list does not include death or serious bodily injury and

12 Anti-Terrorism, Crime and Security Act 2001 (UK) c 24. See Parliament of United Kingdom,

Hansard, House of Commons, 14 November 2001, vol 374, cols 861-880; Parliament of United

Kingdom, Hansard, House of Commons, 19 November 2001, vol 375, cols 18-123.

13 Terrorism Act 2000 (UK) c 11, s 1.

14 Terrorism Act 2000 (UK) c 11, s 1(1)(b). An act of terrorism need not satisfy this intention requirement if the act or threat falls within the list of possible harms in sub-s (2) and involves the use of firearms or explosives: Terrorism Act 2000 (UK) c 11, s 1(3).

15 Terrorism Act 2000 (UK) c 11, s 1(1)(c). For opposing views on whether this motive requirement should be included in legal definitions of terrorism, see Ben Saul, ‘The Curious Element of Motive in

Definitions of Terrorism: Essential Ingredient or Criminalising Thought?’ in Andrew Lynch, Edwina

Macdonald and George Williams (eds), Law and Liberty in the War on Terror (Federation Press, 2007)

28; Kent Roach, ‘The Case for Defining Terrorism With Restraint and Without Reference to Political or Religious Motive’ in Andrew Lynch, Edwina Macdonald and George Williams (eds), Law and

Liberty in the War on Terror (Federation Press, 2007) 39.

16 Terrorism Act 2000 (UK) c 11, s 1(2).

69 only refers to these less serious harms. Sub-section (4) expands the definition to acts

of terrorism committed against foreign governments.17 Another important

consideration is sub-s (1), which begins by defining terrorism as the ‘use or threat of

action ...’.18 This means that a person who threatens to commit a terrorist act would fall under the definition in the same way as if he or she committed a terrorist act.

The s 1 definition of terrorism expands the scope of the UK’s counter-

terrorism laws to a wide range of conduct that would not ordinarily be described as

terrorism. In a report on the UK definition of terrorism, Lord Carlile (then the UK’s

Independent Reviewer of Terrorism Legislation) admitted that the definition could

plausibly extend to environmental activists and women’s rights campaigners.19 This is possible because the UK definition of terrorism – in contrast to statutory definitions of terrorism in Australia, Canada, South Africa and New Zealand – includes no exemption for acts of political protest.20 Lord Carlile was therefore left in ‘no doubt that non-terrorist activities … could fall within the definition as currently drawn’.21

17 Terrorism Act 2000 (UK) c 11, s 1(4). See R v F [2007] 2 All ER 193, in which the England and

Wales Court of Appeal explained that, by virtue of this sub-section, the definition of terrorism would

apply to acts of violence committed against the dictators of oppressive foreign regimes. On how the

definition of terrorism applies to acts committed in foreign armed conflicts, see R v Gul [2012] EWCA

Crim 280; Secretary of State for the Home Department v DD (Afghanistan) [2010] EWCA Civ 1407.

18 Terrorism Act 2000 (UK) c 11, s 1(1).

19 Lord Carlile of Berriew QC, The Definition of Terrorism: A Report by Lord Carlile of Berriew QC,

Independent Reviewer of Terrorism Legislation (TSO, March 2007) 25-26 [34].

20 Cf Criminal Code Act 1995 (Cth), s 100.1(3) (Aus); Criminal Code, RSC 1985, c 46, s

83.01(b)(ii)(E) (Can); Protection of Constitutional Democracy Against Terrorist and Related Activities

Act 2004 (South Africa) s 1(xxv)(3)-(4); Terrorism Suppression Act 2002 (NZ) s 5(4)-(5).

21 Lord Carlile of Berriew QC, The Definition of Terrorism, above n 19, [60].

70 He only recommended two minor changes to the s 1 definition, however, as he believed that UK police and prosecutors could be trusted to use the legislation responsibly against serious terrorist activity.22 While generally this has proved to be the case, there have still been examples of UK authorities misusing the powers.23 It is clear in any case that the broad and vague drafting of the UK definition poses

22 Lord Carlile’s first recommendation was to raise the standard of ‘influencing’ a government in s 1(1)(b) to ‘intimidating’ a government, although this was never adopted: Lord Carlile of Berriew QC,

The Definition of Terrorism, above n 19, 34 [59], 47 [Recommendation 11]. His second recommendation, to include ‘racial’ and ‘ethnic’ causes within the motive requirement in sub-s (1)(c), was partially adopted by the government (referencing ‘racial’ but not ‘ethnic’ causes) in 2008: see Lord

Carlile of Berriew QC, The Definition of Terrorism, above n 19, 37, 48 [Recommendation 12];

Counter-Terrorism Act 2008 (UK) c 28, s 75. For the government response to Lord Carlile’s report, see

Home Office, The Government Reply to the Report by Lord Carlile of Berriew QC, Independent

Reviewer of Terrorism Legislation: The Definition of Terrorism (June 2007, Cm 7058).

23 See, eg, the case of Walter Wolfgang, an 82 year old Jewish refugee who was forcibly ejected and detained under counter-terrorism powers at the 2005 Labour party conference after yelling ‘nonsense’ in response to Foreign Secretary Jack Straw’s promise to rebuild Iraq as stable, democratic nation:

BBC News (online), ‘Labour issues apology to heckler’, 28 September 2005

. See also the recent case of Guardian journalist David

Miranda, who was detained at Heathrow Airport for nearly nine hours under sch 7 of the Terrorism Act

2000 (UK) c 11: Nicholas Watt, ‘Nick Clegg queries whether police acted lawfully over David

Miranda’, The Guardian (London), 24 August 2013; Jonathan Watts, ‘David Miranda: “They said I would be put in jail if I didn’t co-operate”’, The Guardian (London), 20 August 2013; Alan

Rusbridger, ‘David Miranda, schedule 7 and the danger that all reporters now face’, The Guardian

(London), 20 August 2013. Also of significant concern under the Labour governments was the controversial stop-and-search powers in s 44 of the Terrorism Act 2000 (UK) c 11, which were used more than 250,000 times in a single year and led to no successful prosecutions for terrorism offences in

Great Britain: see Anderson, The Terrorism Acts in 2012, above n 8, 7, 90.

71 significant problems for the principle of legality, which requires criminal legislation to be drafted in sufficiently narrow and precise language.24 The current Independent

Reviewer of Terrorism Legislation, David Anderson QC, has also recommended no specific changes to s 1, although he has supported the possibility of a major review of the definition of terrorism in future years.25

B Proscription Regime

The TA2000 does not criminalise acts of terrorism per se, but the s 1 definition of terrorism determines the scope of various criminal offences relating to terrorist activity. As of 30 September 2013, 120 individuals were in custody in Great Britain for terrorism-related offences.26 Between 11 September 2001 and 30 September 2013,

24 This is because the definition of terrorism determines scope of the UK’s criminal offences for terrorist activity as set out below. On legal definitions of terrorism and the principle of legality, see

Keiran Hardy and George Williams, ‘What is “Terrorism”? Assessing Domestic Legal Definitions’

(2011) 16(1) UCLA Journal of International Law and Foreign Affairs 77, 82-88, 111-120. See generally Ben Golder and George Williams, ‘What is “Terrorism”? Problems of Legal Definition”

(2004) 27(2) University of New South Wales Law Journal 270; Kent Roach, ‘Defining Terrorism: The

Need for a Restrained Definition’, in Nicola LaViolette and Craig Forcese (eds), The Human Rights of

Anti-Terrorism (Irwin Law, 2008) 97; Cathleen Powell, ‘Defining Terrorism: Why and How’, in

Nicola LaViolette and Craig Forcese (eds), The Human Rights of Anti-Terrorism (Irwin Law, 2008)

128.

25 Anderson, The Terrorism Acts in 2012, above n 8, 54 [4.5], 59 [4.21]-[4.22].

26 Home Office, Operation of Police Powers Under the Terrorism Act 2000 and Subsequent

Legislation: Arrests, Outcomes and Stops and Searches, Quarterly Update to 30 September 2013,

Great Britain (6 March 2014) [1.3]

72 a total of 585 individuals were charged with terrorism-related offences.27 Of those,

210 were convicted under terrorism legislation and a further 175 were convicted for

other offences, such as conspiracy to murder and the unlawful use of firearms.28

Offences under the UK’s terrorism legislation can be divided into three main

categories. The first category of offences, found in Pt 2 of the TA2000, rely on the

proscription of terrorist organisations. Under s 3 of the TA2000, the Home Secretary

has the power to list organisations as proscribed terrorist organisations if he or she

reasonably believes that the organisation is ‘concerned in terrorism’.29 Under s 3(5),

an organisation is concerned in terrorism if it commits or participates in acts of

terrorism, prepares for terrorism, promotes or encourages terrorism, or is ‘otherwise

concerned’ in terrorism.30 An individual may be imprisoned for up to ten years for being a member of or supporting a proscribed organisation,31 or for up to six months

for wearing an item of clothing ‘in such circumstances as to arouse reasonable

suspicion that he is a member or supporter of a proscribed organisation’.32 At June

2014, there were 60 organisations proscribed under the TA2000: 14 of these are organisations in Northern Ireland that were proscribed under previous legislation; the other 46 are international terrorist organisations including al-Qaeda, Jemaah

Islamiyah, the Liberation Tigers of Tamil Eelam (LTTE) and the military wing of

under-the-terrorism-act-2000-and-subsequent-legislation-arrests-outcomes-and-stops-and-searches- quarterly-update-to-30-s>.

27 Ibid [2.6].

28 Ibid.

29 Terrorism Act 2000 (UK) c 11, s 3(4)

30 Terrorism Act 2000 (UK) c 11, s 3(5).

31 Terrorism Act 2000 (UK) c 11, ss 11-12.

32 Terrorism Act 2000 (UK) c 11, s 13.

73 Hezbollah.33 Of the 431 individuals charged under the UK’s terrorism legislation since 11 September 2001, 30 (7 per cent) were charged with being a member of a proscribed terrorist organisation.34

An organisation may appeal to the Proscribed Organisations Appeal

Commission (POAC) against its listing as a terrorist organisation,35 although the prospects of appeal are limited by the use of evidence that is not disclosed to the organisation.36 POAC can appoint security-cleared lawyers (‘special advocates’) to see the classified material and act on behalf of proscribed organisations,37 although this system has proved contentious because the applicants cannot speak to their lawyer once their lawyer has seen the ‘closed material’.38 This special advocate procedure is considered in further detail below.39

33 Home Office, Proscribed Terror Groups or Organisations (27 June 2014) 3

34 Home Office, Operation of Police Powers Under the Terrorism Act 2000 and Subsequent

Legislation, above n 26, [2.5].

35 Terrorism Act 2000 (UK) c 11, s 5.

36 Terrorism Act 2000 (UK) c 11, sch 3, cl 5(3)-(4).

37 Terrorism Act 2000 (UK) c 11, sch 3, cl 7.

38 See House of Commons Constitutional Affairs Committee, Parliament of the United Kingdom, The

Operation of the Special Immigration Appeals Commission (SIAC) and the Use of Special Advocates:

Seventh Report of Session 2004-05 (Volume 1) (HC323-I, 3 April 2005); Joint Committee on Human

Rights, Parliament of United Kingdom, Counter-Terrorism Policy and Human Rights: Prosecution and

Pre-Charge Detention – Twenty-fourth Report of Session 2005-06 (HL Paper 240, 1 August 2006) 16-

17; Andrew Boon and Susan Nash, ‘Special Advocacy: Political Expediency and Legal Roles in

Modern Judicial Systems’ (2006) 9(1) Legal Ethics 101; John Ip, ‘The Rise and Spread of the Special

Advocate’ (2008) (Winter) Public Law 717; Aileen Kavanagh, ‘Special Advocates, Control Orders and the Right to a Fair Trial’ (2010) 73(5) Modern Law Review 824; Rebecca Scott Bray and Greg Martin,

C Preparatory Offences

A second category of criminal offences prohibits conduct that is preparatory to or otherwise related to terrorism. In contrast to normal criminal offences which operate after the fact, such as theft or murder, the primary purpose of these offences is to prevent terrorist acts rather than punish individuals for committing them.40 This is clear because the offences apply significant penalties to conduct that is only remotely connected to a future attack. Section 15 of the TA2000, for example, is a funding offence which attracts a maximum penalty of 14 years’ imprisonment.41 Under s 15, one person (A) may be charged for providing funds to another person (B) where A

‘Closing Down Open Justice in the United Kingdom’ (2012) 37(2) Alternative Law Journal 126;

Nicola McGarrity and Edward Santow, ‘Anti-Terrorism Laws: Balancing National Security and a Fair

Hearing’ in Victor V Ramraj et al (eds), Global Anti-Terrorism Law and Policy (Cambridge University

Press, 2nd ed, 2012) 122.

39 In Part I(G) (‘TPIM Notices’).

40 See Anderson, The Terrorism Acts in 2012, above n 8, 121-122. For this reason many of the UK’s counter-terrorism laws have been described and critiqued as a form of ‘pre-crime’: see Lucia Zedner,

‘Pre-Crime and Post-Criminology?’ (2007) 11 Theoretical Criminology 261; Lucia Zedner, ‘Fixing the

Future? The Pre-Emptive Turn in Criminal Justice’ in Bernadette McSherry, Alan Norrie and Simon

Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal

Law (Hart, 2008) 35; Lucia Zedner, ‘Preventive Justice or Pre-Punishment? The Case of Control

Orders’ (2007) 60(1) Current Legal Problems 174; Jude McCulloch and Sharon Pickering, ‘Pre-Crime and Counter-Terrorism: Imagining Future Crime in the “War on Terror”’ (2009) 49(5) British Journal of Criminology 628. The problems that pre-crime measures pose for autonomy are considered below in

Part IV(C).

41 Terrorism Act 2000 (UK) c 11, ss 15, 22.

75 has ‘reasonable cause to suspect’ that B might use those funds for the purposes of

terrorism.42 Section 54 of the TA2000 is a training offence; it provides a maximum

penalty of 10 years’ imprisonment where a person provides or receives training (or

invites another person to receive training) in the making or use of firearms,

radioactive material, explosives, or chemical, biological or nuclear weapons.43

Sections 57 and 58 of the TA2000 provide offences relating to the possession

and collection of information.44 Of those charged under the terrorism legislation since

9/11, 116 (27 per cent) have been charged with one of these offences.45 Under s 57, an

individual may be imprisoned for up to 15 years if he or she possesses an article in

circumstances which give reasonable cause to suspect that the possession is for

purposes connected with terrorism.46 Under s 58, an individual may be imprisoned for up to 10 years if he or she collects or makes a record of information ‘likely to be useful to a person committing or preparing an act of terrorism’.47 The individual need

not personally be preparing an act of terrorism, so long as the information collected

would be useful to any other person preparing to do so.48 It is a defence for the person

to prove that he or she had a ‘reasonable excuse’ for collecting the information.49

42 Terrorism Act 2000 (UK) c 11, s 15(1)(b).

43 Terrorism Act 2000 (UK) c 11, s 54(1)-(3). It is a defence for the individual to prove that the training was for a purpose ‘wholly other’ than terrorism: Terrorism Act 2000 (UK) c 11, s 54(5).

44 Terrorism Act 2000 (UK) c 11, ss 57-58.

45 Home Office, Operation of Police Powers Under the Terrorism Act 2000 and Subsequent

Legislation, above n 26, [2.5].

46 Terrorism Act 2000 (UK) c 11, s 57(1). See R v G [2009] UKHL 13, [51]-[70].

47 Terrorism Act 2000 (UK) c 11, s 58(1)(a).

48 Terrorism Act 2000 (UK) c 11, s 58(1)(a).

49 Terrorism Act 2000 (UK) c 11, s 58(3). See R v G [2009] UKHL 13.

76 As part of the Blair government’s response to 9/11, the ATCSA 2001 included

new criminal offences that related specifically to the threat of terrorism posed by al-

Qaeda. The ATCSA 2001 was introduced into Parliament in early November of 2001

in an effort to ‘close loopholes’ and ‘set aside anomalies’ in the TA2000.50 It was also

a response to Security Council Resolution 1373, which was adopted on 28 September

2001 and required UN member states to establish serious criminal offences relating to

the preparation and perpetration of acts of terrorism.51 The Act received royal assent

on 14 December after some significant attention in the House of Lords but a mere 16

hours of debate in the House of Commons.52 It included updated criminal offences for

using and trading in nuclear, chemical, and biological weapons.53 Section 114, which

introduced an offence for ‘hoax’ biological attacks, was a direct response to repeated

anthrax attacks in the United States and similar scares in the UK.54

After the London bombings in July 2005, the Blair government enacted

further criminal offences for terrorist activity through the Terrorism Act 2006 (UK)

(TA2006).55 The broadest of these is a general offence of preparing acts of terrorism

50 Parliament of the United Kingdom, Hansard, House of Commons, 19 November 2001, vol 375, col

22.

51 SC Res 1373, UN SCOR, 56th sess, 4385th mtg, UN Doc S/RES/1373 (28 September 2001), art

(2)(e).

52 See Philip A Thomas, ‘Emergency and Anti-Terrorist Powers: 9/11 – USA and UK’ (2002-03) 26

Fordham International Law Journal 1193, 1216-1218.

53 Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, pt 6. See, eg, the offences of transferring biological agents in s 43 and using a nuclear weapon in s 47.

54 Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, s 114. See, eg, Sandra Laville and David

Millward, ‘Anthrax parcel scare hits Stock Exchange’, The Telegraph (London), 17 October 2001.

55 Terrorism Act 2006 (UK) c 11.

77 (s 5), which provides a maximum penalty of life imprisonment for ‘any conduct’ done in preparation for a terrorist act.56 Section 6 provides a general offence of providing or receiving training for terrorism.57 It is irrelevant whether this training is linked to a specific terrorist act, so long as it is training related to terrorism in a general sense.58

D Incitement Offences

A third category of criminal offences prohibits certain speech acts and related conduct. These were enacted in response to Security Council Resolution 1624, which required UN member states to criminalise the incitement of terrorism.59 Section 1 of the TA2006 is an offence punishable by seven years’ imprisonment for encouraging or glorifying terrorism.60 A person will commit this offence if he or she publishes a statement and is ‘reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement’ to engage in terrorism.61

56 Terrorism Act 2006 (UK) c 11, s 5(1). Of the 431 individuals charged under the UK’s terrorism legislation since 11 September 2011, 15 per cent (65 individuals) have been charged with preparing acts of terrorism: Home Office, Operation of Police Powers Under the Terrorism Act 2000 and

Subsequent Legislation, above n 26, [2.5].

57 Terrorism Act 2006 (UK) c 11, s 6.

58 Terrorism Act 2006 (UK) c 11, s 6(4)(b).

59 SC Res 1624, UN SCOR, 60th sess, 5251st mtg, UN Doc S/RES/1624 (14 September 2005) art 1(a).

60 Terrorism Act 2006 (UK) c 11, s 1. On how these encouragement offences reflect the concept of

‘militant democracy’, see Ian Cram, Terror and the War on Dissent: Freedom of Expression in the Age of Al-Qaeda (Springer, 2009) 15-18; Clive Walker, ‘Militant Speech About Terrorism in a Smart

Militant Democracy’ (2011) 80 Mississippi Law Journal 1395, 1418-1435.

61 Terrorism Act 2006 (UK) c 11, s 1(2)(b)(ii). On the criminalisation of ‘indirect’ incitement, see

David G Barnum, ‘Indirect Incitement and Freedom of Speech in Anglo-American Law’ (2006) 3

78 If the statement ‘glorifies’ past or future acts of terrorism, or terrorism generally, it must be a statement that a reasonable audience would understand as encouragement to emulate that conduct.62 Section 2 is a related offence providing the same penalty where a person ‘disseminates terrorist publications’ that encourage or glorify terrorism.63 Under ss 1 and 2, it is irrelevant whether anybody was in fact encouraged by the statement or publication to commit an act of terrorism.64 An important related provision is s 3, which provides that an individual will be deemed to have endorsed material he or she has posted on the Internet if the government has issued a notice to take down that material and the individual refuses.65

R v Gul demonstrates the extraordinary scope of these offences.66 In that case, a UK law student had uploaded videos onto YouTube of insurgents attacking

Coalition forces in Iraq and Afghanistan. The videos were accompanied by statements praising the bravery of the insurgents and encouraging further attacks. Uploading

European Human Rights Law Review 258; Adrian Hunt, ‘Criminal Prohibitions on Direct and Indirect

Encouragement of Terrorism’ (2007) (June) Criminal Law Review 441. The Joint Committee on

Human Rights accepted in principle that the government had justified the need for a criminal offence targeting indirect incitement of terrorism, but it considered that the offence in section 1 of the TA2006 was inconsistent with the right to freedom of expression due to the vagueness of the ‘glorification’ requirement, the breadth of the definition of terrorism in s 1 of the TA2000, and the lack of an requirement that the person intentionally incites the conduct: Joint Committee on Human Rights,

Parliament of the United Kingdom, Counter-Terrorism Policy and Human Rights: Terrorism Bill and

Related Matters – Third Report of Session 2005-06 (HL Paper 75-I) 3.

62 Terrorism Act 2006 (UK) c 11, s 1(3)(b).

63 Terrorism Act 2006 (UK) c 11, s 2.

64 Terrorism Act 2006 (UK) c 11, ss 1(5), 2(8)

65 Terrorism Act 2006 (UK) c 11, s 3. Section 4 stipulates how these notices are to be served.

66 R v Gul [2012] EWCA Crim 280.

79 these videos caused no direct harm to others, and yet the student received five years’ imprisonment for disseminating terrorist publications with intent to encourage terrorism.67

E Pre- and Post-Conviction Powers

The UK’s counter-terrorism laws provide for special police powers where an individual is suspected of committing one of the offences set out above. First, s 41 of the TA2000 allows police to arrest an individual suspected of committing a terrorism offence without a warrant.68 Between 11 September 2001 and 30 September 2013, a total of 2547 arrests were made for terrorism-related offences.69 Of these, around two- thirds (65 per cent) were made under s 41.70

After an individual is arrested under s 41, he or she may be detained for up to

14 days without charge.71 The rationale for this extended period of pre-charge

67 R v Gul [2012] EWCA Crim 280, [5]. The Court of Appeal upheld the five-year sentence because it was not ‘manifestly excessive’ (at [75]).

68 Terrorism Act 2000 (UK) c 11, s 41.

69 Home Office, Operation of Police Powers Under the Terrorism Act 2000 and Subsequent

Legislation, above n 26, [2.2].

70 Ibid. The remaining arrests were made under Police and Criminal Evidence Act 1984 (UK) c 60, s 24. The number of terrorism-related arrests made under s 41 has dropped from 96 per cent in 2005/6 to 23 per cent in 2012/13: Home Office, Operation of Police Powers under the Terrorism Act 2000 and

Subsequent Legislation: Arrests, Outcomes and Stop and Searches, Great Britain, 2012 to 2013 (12

September 2013) [2.2] .

71 See Terrorism Act 2000 (UK) c 11, sch 8.

80 detention is that terrorism trials are usually more complex than normal criminal cases

(because they can involve multiple jurisdictions and the translation of foreign material) and because the preventive nature of the terrorism offences means that prosecutors often need more time to gather sufficient evidence.72 The full available period of detention is rarely used, however. In 2012/13, all detainees were charged or released within eight days, and nearly half were detained for less than one day.73

This limit on pre-charge detention has fluctuated significantly over time. It was first set at 7 days by the TA2000 before it was raised to 14 days in 2003.74 It was then raised to 28 days in 2006 after a controversial attempt by the Blair government to raise it to 90 days.75 While this 28-day limit was available, six individuals were

72 See Parliament of United Kingdom, Hansard, House of Commons, 26 October 2005, vol 438, cols

341-342 (Kenneth Clarke); Joint Committee on Human Rights, Parliament of United Kingdom,

Counter-Terrorism Policy and Human Rights (Fifteenth Report): Annual Renewal of 28 Days (HL

Paper 119, 23 June 2009) 6.

73 Home Office, Operation of Police Powers Under the Terrorism Act 2000 and Subsequent

Legislation, above n 26, [2.3].

74 Terrorism Act 2000 (UK) c 11, sch 8, cl 29(3); Criminal Justice Act 2003 (UK) c 44, s 306.

75 Terrorism Act 2006 (UK) c 11, s 23(6). The Blair government’s proposal to raise the limit on pre- charge detention to 90 days was defeated in the House of Commons by 322 votes to 291, with 49

Labour Members crossing the floor: United Kingdom, Parliamentary Debates, House of Lords, 9

November 2005, vol 439, col 378. The Brown government subsequently attempted to raise it to 42 days, but this proposal was defeated in the House of Lords by a vote of 309 to 118: United Kingdom,

Parliamentary Debates, House of Lords, 13 October 2008, vol 704, col 541. See Joint Committee on

Human Rights, Parliament of United Kingdom, Counter-Terrorism and Human Rights: Terrorism Bill and Related Matters (HL Paper 75-I, 5 December 2005) 26-37; Joint Committee on Human Rights,

Parliament of United Kingdom, Counter-Terrorism Policy and Human Rights: 42 Days (HL Paper 23,

14 December 2007); Joint Committee on Human Rights, Parliament of United Kingdom, Counter-

81 detained for more than 27 days.76 In 2012, the limit was reduced once more to 14 days by the Coalition government.77 The government still has the power, however, to reinstate the 28-day limit in urgent individual cases.78

After a person has served a sentence for a terrorism offence, they are subject to reporting requirements under the Counter-Terrorism Act 2008 (CT2008).79 Under the CT2008, individuals convicted of terrorism offences must notify police of their personal details, home address, addresses of friends and family, and any overseas travel.80 These notification requirements will apply for 10 years following prison sentences of 10 years or more.81 In addition, a chief officer of police may apply to a magistrates’ court for a ‘foreign travel restriction order’.82 Under the order the individual may be prohibited from travelling to any country or countries outside the

Terrorism Policy and Human Rights (Eleventh Report): 42 Days and Public Emergencies (HL Paper

116, 5 June 2008).

76 Home Office, Operation of Police Powers under the Terrorism Act 2000 and Subsequent

Legislation: Arrests, Outcomes and Stop and Searches, Great Britain, 2012 to 2013 (12 September

2013) [2.3] .

77 Protection of Freedoms Act 2012 (UK) c 9, s 57.

78 Section 58 of the Protection of Freedoms Act 2012 (UK) c 9 and two draft Bills provide an emergency power to reinstate the 28-day limit in urgent individual cases: Protection of Freedoms Act

2012 (UK) c 9, s 58; Detention of Terrorism Suspects (Temporary Extensions) Bills (Cm 8018,

February 2011).

79 Counter-Terrorism Act 2008 (UK) c 28.

80 Counter-Terrorism Act 2008 (UK) c 28, ss 41, 47-48, 52.

81 Counter-Terrorism Act 2008 (UK) c 28, s 53.

82 Counter-Terrorism Act 2008 (UK) c 28, s 58, sch 5.

82 United Kingdom for a period of six months.83 The order may be issued if these restrictions are necessary to prevent the person from engaging in terrorist activity in a foreign country.84 The individual must surrender their passport to a police station.85 It is an offence punishable by 12 months’ imprisonment if the individual fails to comply with either the initial notification requirements or the foreign travel restriction order.86

F Counter-Terrorism Financing Measures

In addition to criminal offences, the UK’s counter-terrorism laws include coercive

measures to combat the financing of terrorism. Under ss 23 and 23A of the TA2000, a

court may forfeit any money or other property which a person convicted of a

terrorism offence had in their possession and intended to use for the purposes of

terrorism.87 Part 1 and Schedule 1 of the ATCSA 2001 provide for the forfeiture of

terrorist cash in civil proceedings.88 Part 2 of the ATCSA 2001 allows the Treasury to

freeze foreign assets if a foreign national is likely to take action that will be

detrimental to the UK’s economy or that constitutes a threat to the life or property of

one or more UK citizens.89

83 Counter-Terrorism Act 2008 (UK) c 28, sch 5 cls 1, 6(1), 7(1).

84 Counter-Terrorism Act 2008 (UK) c 28, sch 5, cl 2(3).

85 Counter-Terrorism Act 2008 (UK) c 28, sch 5, cl 6(3).

86 Counter-Terrorism Act 2008 (UK) c 28, s 54, sch 5, cl 15.

87 Terrorism Act 2000 (UK) c 11, ss 23, 23A.

88 Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, s 1, sch 1. Section 1(4) of the Anti-

Terrorism, Crime and Security Act 2001 (UK) c 24 repealed similar provisions in the Terrorism Act

2000 (UK) c 11, ss 24-31.

89 Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, s 4.

83 Under the Terrorist Asset-Freezing etc Act 2010 (UK) (TAFA),90 the Treasury can also freeze the assets and finances of UK citizens reasonably believed to be involved in terrorism. These current asset-freezing measures require a higher standard of proof than those permitted by the previous Labour governments, but they still allow significant restrictions to be imposed on individuals without proof of criminal guilt. The Coalition government enacted TAFA to consolidate a range of Orders in

Council that the Brown and Blair governments had relied upon between 2001 and

2009.91 Those Orders allowed the Treasury to freeze the assets and finances of an individual if it ‘reasonably suspected’ that the individual was involved in terrorism.92

90 Terrorist Asset-Freezing etc Act 2010 (UK) c 38.

91 See Terrorism (United Nations Measures) Order 2001 (SI 2001/3365); Al-Qaida and Taliban (United

Nations Measures) Order 2002 (SI 2002/111); Terrorism (United Nations Measures) Order 2006 (SI

2006/2657); Terrorism (United Nations Measures) Order 2009 (SI 2009/1747).

92 Ibid. The Orders responded to a long line of Security Council resolutions – dating back to Resolution

1267 in 1999 and Resolution 1373 in 2001 – which called on UN member states to freeze assets and property related to the Taliban, al-Qaeda, and other terrorist organisations. See SC Res 1267, UN

SCOR, 54th sess, 4051st mtg, UN Doc S/RES/1267 (15 October 1999); SC Res 1333, UN SCOR, 55th sess, 4251st mtg, UN Doc S/RES/1333 (19 December 2000); SC Res 1373, UN SCOR, 56th sess, 4385th mtg, UN Doc S/RES/1373 (28 September 2001); SC Res 1390, UN SCOR, 56th sess, 4452nd mtg, UN

Doc S/RES/1390 (16 January 2002); SC Res 1455, UN SCOR, 57th sess, 4686th mtg, UN Doc

S/RES/1455 (17 January 2003); SC Res 1526, UN SCOR, 58th sess, 4908th mtg, UN Doc S/RES/1526

(30 January 2004); SC Res 1617, UN SCOR, 59th sess, 5244th mtg, UN Doc S/RES/1617 (29 July

2005); SC Res 1735, UN SCOR, 61st sess, 5609th mtg, UN Doc S/RES/1735 (22 December 2006); SC

Res 1822, UN SCOR, 62nd sess, 5928th mtg, UN Doc S/RES/1822 (30 June 2008); SC Res 1904, UN

SCOR, 64th sess, 6247th mtg, UN Doc S/RES/1904 (17 December 2009).

84 In HM Treasury v Ahmed,93 the UK Supreme Court quashed those Orders

because reasonable suspicion was seen as too low a threshold for imposing severe

financial restrictions on individuals. Lord Hope explained that the Treasury’s

restrictions had a ‘devastating’ impact on designated persons because all transactions,

even small payments for basic living expenses, were effectively criminalised.94 He believed that these restrictions struck ‘at the very heart of the individual’s basic right to live his own life as he chooses’ and effectively made designated persons into

‘prisoners of the state’.95 As a response to Ahmed, TAFA now requires that the

Treasury ‘reasonably believe’ the person is involved in terrorism,96 although the UK’s

Parliamentary Joint Committee on Human Rights (JCHR) has nonetheless recommended that the required level of proof be set at the balance of probabilities.97

G TPIM Notices

Another major alternative to the criminal law that the UK government can rely upon to prevent terrorism is a ‘TPIM notice’ or TPIM (which stands for Terrorism

Prevention and Investigation Measure). A TPIM notice imposes a range of restrictions and obligations on an individual. These restrictions are much like bail or parole requirements, but significantly more onerous and the individual need not be charged

93 HM Treasury v Ahmed [2010] UKSC 2.

94 HM Treasury v Ahmed [2010] UKSC 2, [38], [60].

95 HM Treasury v Ahmed [2010] UKSC 2, [60].

96 Terrorist Asset-Freezing etc Act 2010 (UK) c 38, s 2(1).

97 Joint Committee on Human Rights, Parliament of the United Kingdom, Legislative Scrutiny:

Terrorist Asset-Freezing etc. Bill (Preliminary Report) – Third Report of Session 2010-11 (HL Paper

41, 22 October 2010) 10 [1.16].

85 with or convicted of a criminal offence. Under the Terrorism Prevention and

Investigation Measures Act 2011 (UK) (TPIMs Act), a TPIM notice may be imposed upon an individual if the Home Secretary (1) reasonably believes that the individual is involved in terrorism, and (2) reasonably considers that imposing the notice is necessary to protect the public from a risk of terrorism.98 The Home Secretary must first seek permission from the High Court unless the order is urgently required.99

Under a TPIM, an individual may be required to reside at a specified residence and to remain within that residence during specified hours overnight.100 He or she may be restricted from travelling overseas, associating with designated individuals, entering designated areas, buying and purchasing goods, and using communications technology aside from a state-monitored landline, mobile phone and computer.101

The Coalition government enacted the TPIMs Act as a replacement for the

Blair government’s controversial control order regime.102 Under the Prevention of

98 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, ss 2, 3(1), 3(3).

99 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, ss 3(5)(a), 6. If the order is urgently required, then the Home Secretary must ‘immediately’ apply to the High Court to have the order confirmed: Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, s 7, sch 2, cl

3(1).

100 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, sch 1, cl 1.

101 See Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, sch 1, cls 2-12.

102 Prevention of Terrorism Act 2005 (UK), c 2. This followed a major review of Labour’s counter- terrorism laws by the Coalition government: see Home Office, Review of Counter-Terrorism Powers, above n 5. Control orders were in turn devised as a replacement for the controversial Pt IV powers in the ATCSA 2001, which had allowed for the indefinite detention of foreign nationals suspected of involvement in international terrorist organisations, but were repealed after the House of Lords held that the government had derogated unlawfully from the right to liberty and that the powers were incompatible with the right to freedom from discrimination: Anti-Terrorism, Crime and Security Act

86 Terrorism Act 2005 (‘PTA’), enacted by the Blair government shortly before the

London bombings, a control order could be imposed if the Home Secretary (a) reasonably suspected that the person was involved in terrorism, and (b) considered that a control order was necessary to protect the public from a risk of terrorism.103

Control orders were more severe than TPIMs as there were no explicit limits on the kinds of restrictions that could be imposed.104 As such, 23 of the 52 individuals subjected to control orders (‘controlees’) were required to relocate to different communities.105 Most controlees were subjected to lengthy curfews which amounted to virtual house arrest.106 For example, in Secretary of State for the Home Department v JJ & Ors,107 the respondents were six Iraqi nationals who were required to remain within a state-owned, one-bedroom flat for 18 hours each day and to wear an electronic monitoring tag at all times. It quickly became clear that these kinds of

2001 (UK) c 24, pt IV (now repealed); A v Secretary of State for the Home Department [2004] UKHL

56.

103 Prevention of Terrorism Act 2005 (UK) c 2, s 2(1). The PTA contained two types of control order: derogating and non-derogating. The control orders referred to above are of the ‘non-derogating’ variety

(i.e. those that did not require the Home Secretary to derogate from the right to liberty in art 5 of the

European Convention on Human Rights). From 2005 to 2011, 52 individuals were subjected to non- derogating control orders: David Anderson QC, Control Orders in 2011: Final Report of the

Independent Reviewer on the Prevention of Terrorism Act 2005 (TSO, March 2012) 4. The provisions providing for ‘derogating’ control orders (those that would have required derogation from art 5) were never used: see Prevention of Terrorism Act 2005 (UK) c2, ss 3(c), 4, 7(c).

104 This is because the list of possible restrictions in s 1(4) of the PTA was non-exhaustive: Prevention of Terrorism Act 2005 (UK) c 2, s 1(4).

105 See Anderson, Control Orders in 2011, above n 103, 5.

106 Ibid.

107 Secretary of State for the Home Department v JJ [2006] EWHC 1623 (Admin).

87 restrictions were not compatible with the right to liberty in art 5 of the European

Convention on Human Rights,108 and subsequent court decisions established that a control order curfew could not exceed 14 hours.109 This was an important restriction on the potential scope of the PTA, although the government still possessed significant power to restrict the liberty of individuals suspected of involvement in terrorism.110

There are therefore some important differences between TPIMs and control orders. TPIM notices are less severe, as they cannot require individuals to relocate to different communities and lengthy curfews have been replaced with ‘overnight resident requirements’.111 TPIMs require a higher standard of proof for imposing the

108 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4

November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 5.

109 Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141; Secretary of State for the

Home Department v JJ [2007] UKHL 45; Secretary of State for the Home Department v E [2007]

UKHL 47; Secretary of State for the Home Department v MB [2007] UKHL 46 (‘MB’); Secretary of

State for the Home Department v AP [2010] UKSC 24 (‘AP’). In AP, the Supreme Court held that a curfew of 16 hours would breach art 5 but only if the conditions imposed were ‘unusually destructive of the life the controlee might otherwise have been living’, such as by forcing the controlee to relocate to a different community: AP [2010] UKSC 24, [4].

110 See Keith D Ewing and Joo-Cheong Tham, ‘Limitations of a Charter of Rights in the Age of

Counter-Terrorism’ (2007) 31(2) Melbourne University Law Review 462; Keith Ewing and Joo-

Cheong Tham, ‘The Continuing Futility of the Human Rights Act’ (2008) (Winter) Public Law 668;

Joo-Cheong Tham, ‘Parliamentary Deliberation and the National Security Executive’ (2010)(Jan)

Public Law 79, 109; Ed Bates, ‘Anti-Terrorism Control Orders: Liberty and Security Still in the

Balance’ (2009) 29(1) Legal Studies 99.

111 The possible duration of these overnight residence requirements is unclear, but they would likely be less severe than the lengthy curfews imposed under the PTA: see Anderson, Control Orders in 2011, above n 103, 67.

88 order.112 TPIMs are also limited to a maximum of two years, whereas control orders could be renewed indefinitely every 12 months.113 At February 2014 there were no

TPIM notices in force, which suggests that the Coalition government has been successful in restricting the detrimental impact of Labour’s control order regime.114

There are still, however, some important similarities between control orders and TPIMs. TPIMs can include many of the same restrictions as control orders, individuals will face the same penalty of five years’ imprisonment for failing to comply with the terms of an order,115 and the Home Secretary can effectively reinstate control orders in urgent individual cases.116 These similarities led Opposition MPs

112 Of ‘reasonable belief’ rather than ‘reasonable suspicion’: Cf Terrorism Prevention and Investigation

Measures Act 2011 (UK) c 23, ss 2, 3(1), 3(3), with Prevention of Terrorism Act 2005 (UK) c 2, s 2(1).

113 Cf Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, s 5, with Prevention of

Terrorism Act 2005 (UK) c 2, s 2(4). A TPIM notice may only be re-issued if there is evidence of new involvement in terrorist activity: Terrorism Prevention and Investigation Measures Act 2011 (UK) c

23, s 13.

114 David Anderson QC, Terrorism Prevention and Investigation Measures in 2013: Second Report of the Independent Reviewer on the Operation of the Terrorism Prevention and Investigation Measures

Act 2011 (TSO, 2014) 2.

115 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, s 23; Prevention of

Terrorism Act 2005 (UK) c 2, s 9. For this reason, control orders (and by implication TPIMs) are referred to as a ‘hybrid’ civil-criminal order, as they are a civil order that imposes criminal punishment for breach of the terms of an order: see Tamara Tulich, ‘A View Inside the Preventive State:

Reflections on a Decade of Anti-Terror Law’ (2012) 21(1) Griffith Law Review 209, 226; Zedner,

‘Preventive Justice or Pre-Punishment?’, above n 40, 196.

116 Section 26(1) of the Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23 provides that the Home Secretary may impose a ‘Temporary Enhanced TPIM’ if he or she ‘considers that it is necessary to do so by reason of urgency’. The list of possible restrictions under a Temporary Enhanced

TPIM are the same as those available under the PTA: see Terrorism Prevention and Investigation

89 and civil liberties groups to denounce TPIMs as ‘control orders-lite’, ‘low-fat control orders’, ‘son of control orders’, ‘a repackaging and rebranding’ and ‘a cut-and-paste job’.117 The JCHR expressed similar concerns, noting that TPIM notices were generally ‘less severe’ than their predecessor, but otherwise remained ‘an extraordinary departure from the ordinary principles of criminal due process’.118

The TPIMs Act has also inherited the controversial special advocate procedure used in control order hearings under the PTA.119 As with the PTA,120 individuals

Measures Act 2011 (UK) c 23, s 26(3); cf Prevention of Terrorism Act 2005 (UK) c 2, s 1(4). See

Helen Fenwick, ‘Designing ETPIMs around ECHR Review or Normalisation of “Preventive” Non-

Trial-Based Executive Measures?’ (2013) 76(5) Modern Law Review 876.

117 United Kingdom, Parliamentary Debates, House of Commons, 7 June 2011, vol 529, cols 71 (Pete

Wishart), 74, 76 (Yvette Cooper), 109 (Jeremy Corbyn), 124 (Bob Stewart), 137 (Paul Goggins);

Liberty, Press Release: Progress on Stop and Search but Control Orders by Any Other Name (26

January 2011) . See also Helen Fenwick, ‘Preventive Anti-Terrorist

Strategies in the UK and ECHR: Control Orders, TPIMs and the Role of Technology’ (2011) 25(3)

International Review of Law, Computers & Technology 129; Fenwick and Phillipson, ‘UK Counter-

Terror Law Post-9/11’, above n 8, 484.

118 Joint Committee on Human Rights, Parliament of United Kingdom, Legislative Scrutiny: Terrorism

Prevention and Investigation Measures Bill – Sixteenth Report of Session 2010-12 (HL Paper 180, 19

July 2011), 15 [1.45].

119 The PTA in turn inherited the special advocate procedure from the Special Immigration Appeals

Commission (SIAC), which was established in 1997 to hear appeals against immigration decisions made by the Home Secretary. SIAC was established by the Special Immigration Appeals Commission

Act 1997 (UK) c 68 in response to the ECHR’s decision in Chahal v United Kingdom (1996) 23

EHRR. SIAC was later used to hear appeals against the use of the controversial indefinite detention powers in the Anti-Terrorism, Crime and Security Act 2001, pt IV. See House of Commons

Constitutional Affairs Committee, above n 38; Treasury Solicitor’s Department, Special Advocates: A

90 subject to TPIMs are entitled to attend a full review hearing to determine whether the

Home Secretary’s decision to impose the notice was lawful and whether any specific

obligations contained in the notice should be quashed.121 Individuals also have a right to appeal against any subsequent decisions by the Home Secretary to vary, extend or refuse to revoke the notice.122 During these proceedings, however, the court is not

allowed to disclose any information that would be ‘contrary to the public interest’,123

and to avoid that possibility it can exclude the individual from the courtroom.124 The

court can appoint a special advocate to act on the individual’s behalf,125 although

special advocates cannot speak to their clients after seeing any classified material.126

This special advocate procedure is likely to pose continuing problems under

the TPIMs Act. The procedure has been heavily criticised for altering the traditional

solicitor-client relationship, because the prohibition on communication means that

special advocates must represent their clients after receiving only initial

Guide to the Role of Special Advocates and the Special Advocates Support Office (SASO) – Open

Manual (TSO, 2006) 4-5.

120 See Prevention of Terrorism Act 2005 (UK) c 2, ss 2(c), 3(7), 3(10), 10.

121 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, s 9. The TPIMs Act also provides for an initial directions hearing within 7 days of the notice being issued: Terrorism Prevention

and Investigation Measures Act 2011 (UK) c 23, s 8.

122 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, s 16.

123 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, sch 4, cls 1(1)(b); (4)(1)(d),

(4)(1)(e).

124 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, sch 4, cl 2(2)(e).

125 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, sch 4, cl 10.

126 Civil Procedure Rules 1998 (UK), r 76.25(2). See Treasury Solicitor’s Department, above n 119,

28-30.

91 instructions.127 Several special advocates resigned because they felt they could not

represent their clients effectively.128 In the courts, the special advocate procedure has posed significant problems for art 5(4) of the European Convention – which protects the right of everyone to have a court speedily determine whether their arrest or detention is lawful – and art 6(1), which protects the right of everyone in civil proceedings to receive a ‘fair and public hearing’.129 In Secretary of State for the

Home Department v MB, Lord Bingham described the special advocate procedure as a

‘grave disadvantage’ to controlees.130 The House of Lords later confirmed that ‘the

controlee must be given sufficient information about the allegations against him’,131

although the particular circumstances requiring this ‘gist’ are still being debated in the

courts.132

In addition to TPIM reviews, this special advocate procedure also applies in court hearings under TAFA and in POAC.133 Indeed, the Coalition government has

recently expanded the procedure beyond the counter-terrorism context by allowing

127 See text to above n 38.

128 Clare Dyer, ‘Terror QC: more will quit special court’, The Guardian (London), 20 December 2004;

Joshua Rozenberg, ‘Second advocate resigns over detainees held without trial’, The Telegraph

(London), 17 January 2005.

129 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4

November 1950, 213 UNTS 221 (entered into force 3 September 1953) arts 5(4), 6(1).

130 MB [2007] UKHL 46, [35].

131 Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [59]. The House of

Lords relied on the ECHR’s judgment in A v United Kingdom (2009) 49 EHRR 29.

132 See AT v Secretary of State for the Home Department [2012] EWCA Civ 42; Secretary of State for the Home Department v BC [2009] EWHC 2927.

133 Terrorist Asset-Freezing etc Act 2010 (UK) c 38, s 28(4); Terrorism Act 2000 (UK) c 11, sch 3, cl 7.

92 the UK appeal courts to implement ‘closed material procedures’ in all civil

proceedings where a party would be required to disclose sensitive material.134

H Stop-and-Search Powers

Another controversial hard power measure that has recently been amended by the

Coalition government is the power to stop and search individuals within authorised

areas for the purpose of preventing terrorist acts. Until 2012, s 44 of the TA2000 had

allowed police officers to stop and search vehicles, drivers, passengers and

pedestrians within authorised areas if doing so was ‘expedient’ to prevent an act of

terrorism.135 This did not require the police to suspect in any way that the person was involved in terrorism, and individuals who failed to comply with a search could be imprisoned for up to six months.136 Through successive authorisations, the whole of

Greater London was designated for nearly ten years as an authorised area under s 44.137 During this time, s 44 was used more than 250 000 times in a single year and

did not lead to any successful convictions for terrorism offences.138 Section 44 was also used disproportionately against people of Asian appearance after 9/11, which

134 Justice and Security Act 2013 (UK) c 18, s 6(4).

135 Terrorism Act 2000 (UK) c 11, s 44(1)-(2).

136 Terrorism Act 2000 (UK) c 11, s 47.

137 See Gillan v Commissioner of Police for the Metropolis [2006] UKHL 12 [18]; Lord Carlile of

Berriew QC, Report on the Operation in 2006 of the Terrorism Act 2000 (June 2007) 29 [125];

LIBERTY, Section 44 Terrorism Act (last accessed 16 October 2013)

rights.org.uk/human-rights/justice/stop-and-search/section-44/index.php>.

138 Anderson, The Terrorism Acts in 2012, above n 8, 7.

93 created significant resentment in Muslim communities.139 In Gillan and Quinton v

United Kingdom, the ECHR held that s 44 violated art 8 of the European Convention because it interfered with the right to privacy, and because its broad drafting created a

‘clear risk of arbitrariness’.140 After Gillan, the use of s 44 dropped some 90 per cent, from over 100,000 searches in 2009/10 to under 10,000 searches in 2010/11.141

Shortly after the TPIMs Act was passed, the Coalition government enacted the

Protection of Freedoms Act 2012 (UK) in a further effort to ‘roll back the creeping intrusion of the state into our everyday lives’.142 The PFA repealed s 44 and replaced it with a new s 47A, which imposes significantly higher standards for conducting a search.143 Section 47A of the TA2000 requires that a ‘senior’ police officer must (1)

‘reasonably suspect’ that an act of terrorism will take place, and (2) reasonably

139 See Gillan and Quinton v United Kingdom [2009] ECHR 28, [85]; Home Office, Review of

Counter-Terrorism Powers, above n 5, 15-16; Anderson, The Terrorism Acts in 2012, above n 8, 93.

Although in raw numbers more ‘white’ British residents were stopped under s 44 than people of

‘Asian’ descent, there was a much sharper percentage rise in searches of Asian persons under s 44 after

9/11, and significantly higher searches of Asian persons relative to their representation in the resident

UK population: Christina Pantazis and Simon Pemberton, ‘From the “Old” to the “New” Suspect

Community’ (2009) 49(5) British Journal of Criminology 646, 656. See also Martin Beckford, ‘Police forces accused of race bias in stop and search figures’, The Telegraph (London), 12 June 2012.

140 Gillan and Quinton v United Kingdom [2009] ECHR 28, [85], [87]. See John Ip, ‘The Reform of

Counterterrorism Stop and Search after Gillan v United Kingdom’ (2013) 13(4) Human Rights Law

Review 729.

141 ‘Police use of terrorism stop and search powers drops 90 per cent’, The Telegraph (London), 13

October 2011.

142 Parliament of United Kingdom, Hansard, House of Commons, 1 March 2011, vol 524, col 205

(Theresa May).

143 Protection of Freedoms Act 2012 (UK) c 9, s 61; Terrorism Act 2000 (UK) c 11, s 47A.

94 consider that the search is ‘necessary’ to prevent that act.144 At September 2013, no

stop-and-searches had been made in the UK under s 47A,145 which suggests that these amendments have been successful in restraining the arbitrary and excessive use of

s 44. This is supported by the current Independent Reviewer of Terrorism Legislation,

who has reported that the repeal of s 44 ‘removed an important source of

resentment’.146 Nonetheless, the JCHR has recommended additional protections, such

as requirements that the senior police officer ‘reasonably believes’ the search to be

necessary, that the senior police officer later provide a statement of reasons for that

belief, and that the powers be authorised by a judge before they are used.147

I Port and Border Controls

Under sch 7 of the TA2000, police constables and designated immigration and

customs officers have the power to stop, detain, question and search individuals at

port and border areas.148 A person may be stopped, questioned and detained under

144 Terrorism Act 2000 (UK) c 11, s 47A(1)(a)-(b)(i).

145 Anderson, The Terrorism Acts in 2012, above n 8, 92. The s 47A power was first used in 2013 in

Northern Ireland.

146 Ibid 7.

147 Joint Committee on Human Rights, Parliament of United Kingdom, Terrorism Act 2000 (Remedial)

Order 2011: Stop and Search without Reasonable Suspicion (HL Paper 155, 15 June 2011), 28 [104].

148 Terrorism Act 2000 (UK), sch 7, cls 1, 2, 6, as amended by the Anti-Social Behaviour, Crime and

Policing Act 2014 (UK) c 12. See also a range of aviation security measures in the Anti-Terrorism,

Crime and Security Act 2001 (UK) c 24, pt 9.

95 sch 7 for the purposes of determining whether they are a ‘suspected terrorist’.149 The person may be questioned initially for up to one hour, during which time he or she may be detained.150 After that time, the person must be detained for the purposes of questioning and may be detained for a further five hours.151 The person must give the examining officer any information in their possession, hand over their passport or similar identification, declare whether they have any documents specified by the officer, and hand over any document that the officer requests.152 The examining officer may also search the person or any property in their possession.153 Any property searched and any documents handed over to the examining officer (other than the person’s passport) may be detained by the examining officer for up to a week for the purposes of examination, or longer if the examining officer believes that the documents or property may be needed for evidence in criminal proceedings or in connection with a deportation decision to be made by the Home Secretary.154 A person may be imprisoned for up to three months for refusing to comply with these procedures.155

149 Terrorism Act 2000 (UK) c 11, sch 7, cls 2, 6. A suspected terrorist is a person who is suspected of being involved in the commission, preparation or instigation of acts of terrorism: Terrorism Act 2000

(UK) c 11, s 40.

150 Terrorism Act 2000 (UK) c 11, sch 7, cl 6A(2), as introduced by Anti-Social Behaviour, Crime and

Policing Act 2014 (UK) c 12, sch 9, cl 2.

151 Terrorism Act 2000 (UK) c 11, sch 7, cl 6A(2)-(3), as introduced by Anti-Social Behaviour, Crime and Policing Act 2014 (UK) c 12, sch 9, cl 2.

152 Terrorism Act 2000 (UK) c 11, sch 7, cl 5.

153 Terrorism Act 2000 (UK) c 11, sch 7, cl 8.

154 Terrorism Act 2000 (UK) c 11, sch 7, cl 11 (2).

155 Terrorism Act 2000 (UK) c 11, sch 7, cl 18.

96 Amendments to these powers were introduced by the Coalition government in

2014.156 The previous legislation created significant controversy after David Miranda

was detained for nearly nine hours at Heathrow airport before being released without

charge.157 Miranda was a colleague of the Guardian journalist involved in the

publication of classified information leaked by Edward Snowden, former consultant

to the United States’ National Security Agency (NSA). More broadly, there was

significant concern amongst the UK public that the legislation was generally ‘unfair’,

‘undemocratic’ and ‘too wide ranging’.158 This concern was understandable as the sch 7 powers were used to question more than 85 000 individuals in a single year, with only a ‘minuscule proportion’ of these examinations (some 0.04 per cent) leading to arrests for terrorism-related offences.159

In response to these concerns, the Coalition government introduced a range of

protections. The previous maximum period of detention (of nine hours) was reduced

to the current limit of six hours.160 Individuals detained under sch 7 now have the right to consult a solicitor,161 and examining officers can no longer conduct intimate

156 Anti-Social Behaviour, Crime and Policing Act 2014 (UK) c 12.

157 See Watt, above n 23; Watts, above n 23; Rusbridger, above n 23. The High Court originally held that Miranda’s detention was lawful and proportionate and did not breach the freedom of expression, although he has recently been granted leave to appeal that decision: Miranda v Secretary of State for the Home Department [2014] EWHC 255 (Admin); Owen Bowcott, ‘David Miranda allowed to appeal against ruling on Heathrow detention’, The Guardian (London), 15 May 2014.

158 Home Office, Review of the Operation of Schedule 7: A Public Consultation – The Government

Response (Home Office, July 2013) 6-7.

159 Anderson, The Terrorism Acts in 2012, above n 8, 96,

160 Anti-Social Behaviour, Crime and Policing Act 2014 (UK) c 12, sch 9, cl 2.

161 Anti-Social Behaviour, Crime and Policing Act 2014 (UK) c 12, sch 9, cl 5.

97 searches or collect intimate DNA samples.162 These are notable amendments, although the JCHR has recommended that the more intrusive powers remaining in sch 7 (including those to detain, strip-search, and collect non-intimate DNA samples) require a test of ‘reasonable suspicion’ that the person is involved in terrorism.163

J Conclusions

The UK government has an extraordinary range of hard power legal measures at its disposal to prevent acts of domestic terrorism. It is important to distinguish the different ways in which these laws operate: TPIMs, for example, allow the state to impose severe restrictions on liberty while allowing the person to formally remain

‘free’, whereas preparatory offences allow the state to imprison individuals for lengthy periods where proof of criminal guilt can be established. Pre-charge detention powers allow the state to detain individuals for periods much shorter than imprisonment but without criminal charge, whereas s 47A allows police officers to stop and search individuals and their possessions within specified areas, and so on.

These powers differ in the nature and severity of the restrictions and penalties imposed, the conditions under which they can be triggered, the officers and authorities who are empowered to impose them, and the standards of proof required.

It is therefore important to consider each individual legal measure on its own merits.

162 Anti-Social Behaviour, Crime and Policing Act 2014 (UK) c 12, sch 9, cl 6.

163 Joint Committee on Human Rights, Parliament of United Kingdom, Legislative Scrutiny: Anti-

Social Behaviour, Crime and Policing Bill – Fourth Report of Session 2013-14 (October 2013, HL

Paper 56) 5.

98 There are, however, some common themes. These various legal measures can

be usefully described as hard power responses to terrorism because they empower the

state to coerce individuals directly (such as by providing for imprisonment, and by

compelling individuals to comply with intrusive search procedures) and because they

can deter individuals from becoming involved in terrorism through the threat of such

coercive measures. Other recurring themes include broad legislative drafting that

exposes a wide range of conduct to coercive intervention, severe restrictions on

liberty requiring low standards of proof (such as reasonable suspicion of involvement

in terrorism), and the targeting of conduct only remotely connected to a future

terrorist act (such as training for terrorism and possessing terrorist documents).

The Coalition government has recently made some notable amendments to

Labour’s counter-terrorism laws. The limit on pre-charge detention has been reduced

from 28 to 14 days, the standard for imposing asset-freezing measures has been

raised, TPIMs are less severe than control orders, and important limits have been

placed on the stop-and-search powers and sch 7 port and border controls. On the other

hand, additional amendments could arguably have made the laws more compliant

with the UK’s human rights obligations,164 the government has retained the power to

164 See Joint Committee on Human Rights, Parliament of the United Kingdom, Legislative Scrutiny:

Terrorist Asset-Freezing etc. Bill (Preliminary Report) – Third Report of Session 2010-11 (HL Paper

41, 22 October 2010) 10 [1.16]; Joint Committee on Human Rights, Parliament of United Kingdom,

Terrorism Act 2000 (Remedial) Order 2011: Stop and Search without Reasonable Suspicion (HL Paper

155, 15 June 2011), 28 [104]; Joint Committee on Human Rights, Parliament of United Kingdom,

Legislative Scrutiny: Anti-Social Behaviour, Crime and Policing Bill – Fourth Report of Session 2013-

14 (October 2013, HL Paper 56) 5.

99 implement some of Labour’s more controversial measures in urgent circumstances,165

and many other problematic laws (such as the broad definition of terrorism and the

preparatory offences in the TA2000 and TA2006) have not been amended. Any

improvements that the Coalition government has made to Labour’s counter-terrorism

laws should not, therefore, be overstated. Overall, a significant and problematic body

of coercive counter-terrorism legislation remains.

II SOFT POWER IN UK COUNTER-TERRORISM

In contrast to the coercive and deterrent effect of the UK’s counter-terrorism laws, the

Prevent strand of CONTEST comprises a range of soft power strategies for

countering terrorist ideology and radicalisation. These soft power strategies are

designed ‘to stop people becoming terrorists or supporting terrorism’.166 This section

explains the development of Prevent and CONTEST and then sets out the UK’s soft

power responses to terrorism in five categories. Parts III-V consider the challenges

that these soft power responses to terrorism in Prevent pose for smart power thinking.

165 Namely, the power to introduce ‘Temporary Enhanced TPIMs’, and to reinstate the 28-day limit on pre-charge detention in urgent circumstances: Terrorism Prevention and Investigation Measures Act

2011 (UK) c 23, s 26; Protection of Freedoms Act 2012 (UK) c 9, 58; Protection of Freedoms Act 2012

(UK) c 9, s 58; Detention of Terrorism Suspects (Temporary Extensions) Bills (Cm 8018, February

2011).

166 Prevent Strategy 2011, above n 4, 6 [3.8].

100 A Background: Prevent and CONTEST

CONTEST is the UK’s national strategy for countering terrorism. It was first published by the Blair government in July 2006, although it has officially existed since 2003.167 CONTEST comprises four strands: Pursue, Prevent, Protect and

Prepare. Each strand describes a different response to the threat of terrorism. Under

the Pursue strand, the UK government aims to disrupt terrorist activity through

coercive means.168 Pursue largely corresponds with the UK’s counter-terrorism laws,

although it also includes an international dimension, such as training foreign police

and security services.169 Under Prevent, detailed below, the UK government aims to counter terrorist ideology and radicalisation. Under Protect, it aims to defend critical

national infrastructure and the UK population against terrorist attacks.170 Under

Prepare, the UK government develops emergency response procedures that can be

relied upon in the event of a successful terrorist attack.171 Responsibility for implementing CONTEST lies with the Office for Security and Counter-Terrorism

(OSCT), which was established within the Home Office in March 2007.

The pairing of the Pursue and Prevent strands in 2006 signalled an important strategic shift in which soft power became a core element of the UK government’s approach to preventing domestic terrorism. In the immediate aftermath of 9/11, the

167 Home Office, Countering International Terrorism: The United Kingdom’s Strategy (London: TSO,

July 2006, Cm 6888) 1 (‘CONTEST 1’).

168 CONTEST 3, above n 2, 44-56.

169 Ibid 49-54, 56.

170 Ibid 78-87.

171 Ibid 92-102.

101 Blair government focused on hard power as the key to finding and punishing terrorists

associated with al-Qaeda. In Parliament, Prime Minister Blair declared that he would do everything possible to bring al-Qaeda to justice:

They are terrorists, and history will judge them as such … Before the history books

are written, however, we will continue to hunt them down, and we continue to do so

for as long as it takes to bring them to the justice they deserve. They are guilty and

they will face justice, and today, thankfully, they have far fewer places to hide and far

fewer people who wish to protect them.172

By contrast, when CONTEST was published in 2006, this combative, retributive

language had been replaced with a heavy focus on using Prevent to address the social

and political causes of terrorism. The 2006 version of CONTEST (CONTEST 1) set

out three aims for Prevent: (1) to tackle disadvantage and support reform, (2) to deter

those who facilitate and encourage terrorism, and (3) to counter extremist ideology by

engaging in the ‘battle of ideas’.173 CONTEST 1 explained that each of the four

strands was important, but it was ‘clear that particular focus and effort is needed in

the PREVENT strand’.174 When Home Secretary John Reid outlined these aims in

Parliament, he followed a smart power logic that contrasted dramatically with the government’s initial response to 9/11. He explained that a community-based approach in the Prevent strand would prove a crucial supplement to hard power in Pursue:

172 Parliament of United Kingdom, Hansard, House of Commons, 14 November 2001, vol 374, col 863

(Tony Blair).

173 CONTEST 1, above n 167, 1-2.

174 Ibid 3.

102 Effective security measures, intelligence and policing are essential. But ultimately,

modern terrorism will be defeated only by addressing the political and social issues

by a debate about values, by democracy and by public solidarity. That is why we are

working with all communities to tackle the social factors underlying radicalisation, to

block the ways radicalisation takes place, and to counter the radicals’ arguments.175

Early Prevent work began in 2007 under the ‘Preventing Violent Extremism

Pathfinder Fund’. In October 2006, the Department for Communities and Local

Government (DCLG) had announced that £5m would be made available for

community projects to confront extremist ideology, promote local role models,

increase understanding of Islam and encourage dialogue between communities.176

DCLG later increased the Pathfinder Fund to £6m,177 and once more emphasised the

smart power logic underlying Prevent work. In a policy document entitled ‘Winning

Hearts and Minds’, DCLG explained that a security response to terrorism was vital

but would ‘not, on its own be enough. Winning hearts and minds and preventing

individuals being attracted to violent extremism in the first place is also crucial’.178

175 Parliament of United Kingdom, Hansard, House of Commons, 10 July 2006, vol 448, col 1116

(John Reid).

176 Department for Communities and Local Government, Preventing Violent Extremism Pathfinder

Fund: Guidance Note for Government Offices and Local Authorities in England (Communities and

Local Government, February 2007) 9.

177 Department for Communities and Local Government, Preventing Violent Extremism: Winning

Hearts and Minds (Communities and Local Government, April 2007) 7 (‘Winning Hearts and Minds’).

178 Ibid 4.

103 In 2008, the Brown government published Prevent as a separate strategy document with five new objectives and two workstreams.179 The launch of the 2008

Prevent strategy was accompanied by a significant jump in funding – from £6m under the Pathfinder Fund in 2007/8 to £140m in 2008/9.180 The government also introduced a new national indicator (‘NI35’) for measuring the performance of local authorities in delivering Prevent work.181 The 2008 Prevent strategy set out five objectives designed overall to ‘stop people becoming terrorists or supporting violent extremists’:

1.) Challenge violent extremist ideology and support mainstream voices

2.) Disrupt those who promote violent extremism

3.) Support individuals who are vulnerable to recruitment by extremists

4.) Increase the ‘resilience’ of communities to violent extremism

179 Home Office and Department for Communities and Local Government, The Prevent Strategy: A

Guide for Local Partners in England – Stopping People Becoming or Supporting Terrorists and

Violent Extremists (Home Office and Department for Communities and Local Government, May 2008)

6 (‘Prevent Strategy 2008’). One workstream focused on ‘developing understanding, analysis and information’; the other focused on ‘strategic communications’: see 41-45.

180 Winning Hearts and Minds, above n 177, 5; Home Office, Pursue Prevent Protect Prepare: The

United Kingdom’s Strategy for Countering Terrorism (TSO, March 2009, Cm 7547) 12 (‘CONTEST

2’).

181 See Department for Communities and Local Government, NI35: Building Communities Resilient to

Violent Extremism – Assessment Framework (2008) . See also London Borough of Hammersmith and Fulham (with the

Office for Public Management), Self-Assessing Local Performance Against NI35: Building Resilience to Violent Extremism – Guidance for Local Partners (2008); Prevent Strategy 2008, above n 179, 14,

Annex D.

104 5.) Address social and political grievances exploited by violent extremists182

For several reasons that are examined in Part III below, the delivery of the 2008

Prevent strategy proved extremely problematic. It is well recognised that the Brown government’s soft power responses to terrorism in Prevent were undermined by their heavy focus on Muslim communities and by their close relationship with hard power responses in Pursue.183 Parts III-V will consider the challenges that these kinds of issues with the Prevent strategy pose for smart power thinking.

An updated version of CONTEST (CONTEST 2), published by the Brown government in 2009, contributed to the many recognised problems with Prevent.184

CONTEST 2 did not make any substantive changes to the five Prevent objectives, but

182 Prevent Strategy 2008, above n 179, 6.

183 See especially House of Commons Communities and Local Government Committee, Parliament of

United Kingdom, Preventing Violent Extremism: Sixth Report of Session 2009-10 (HC 65, 30 March

2010) (‘CLG Committee’) 9-13, 52-62. See generally Arun Kundnani, Spooked! How Not to Prevent

Violent Extremism (Institute of Race Relations, 2009); Paul Thomas, ‘Failed and Friendless: The UK’s

“Preventing Violent Extremism” Programme’ (2010) 12(3) British Journal of Politics and

International Relations 442; Jonathan Githens-Mazer and Robert Lambert, ‘Why Conventional

Wisdom on Radicalization Fails: The Persistence of a Failed Discourse’ (2010) 86(4) International

Affairs 889; Charlotte Heath-Kelly, ‘Reinventing Prevention or Exposing the Gap? False Positives in

UK Terrorism Governance and the Quest for Pre-Emption’ (2012) 5(1) Critical Studies on Terrorism

69; Suraj Lakhani, ‘Preventing Violent Extremism: Perceptions of Policy from Grassroots and

Communities’ (2012) 51(2) The Howard Journal 190; Yahya Birt, ‘Promoting Virulent Envy’ (2009)

154(4) The RUSI Journal 52; Anthony Richard, ‘The Problem with “Radicalization”: The Remit of

“Prevent” and the Need to Refocus on Terrorism in the UK’ (2011) 87(1) International Affairs 143.

These problems with Prevent are examined in detail in Parts III-V below.

184 CONTEST 2, above n 180.

105 it did expand their scope to encompass non-violent extremism. CONTEST 2

explained that the government would also use Prevent to challenge views that ‘fall

short of supporting violence and are within the law, but which reject and undermine

our shared values and jeopardise community cohesion’.185 By contrast, the 2008

strategy had referred only to ‘violent extremism’.186 This move was criticised in the

British media and by civil liberties and faith groups for potentially branding

thousands more British Muslims as extremists.187

In response to many of these concerns, the Coalition published an updated version of the Prevent strategy in June 2011.188 One month later, the Coalition

published an updated version of the entire CONTEST strategy, although little change

was made to the other three strands.189 In announcing the revised Prevent strategy in

Parliament, Home Secretary Theresa May announced that there would be ‘real

differences’ in the Coalition government’s approach.190 In particular, she declared that

185 Ibid 13.

186 See, eg, Prevent Strategy 2008, above n 179, 6 (‘challenging the violent extremist ideology’), 17

(‘violent extremists who misrepresent the Islamic faith’), 23 (‘[d]isrupting those who promote violent extremism’), 31 (‘reject the ideology of violent extremism’).

187 Kundnani, Spooked!, above n 183, 22. See also CLG Committee, above n 183, Ev 102; Vikram

Dodd, ‘Anti-terror code “would alienate most Muslims”’, The Guardian (London), 17 February 2009.

188 Prevent Strategy 2011, above n 4.

189 CONTEST 3, above n 2. As described in Part I, the Coalition has made some significant changes to the substance of Labour’s counter-terrorism laws, although the general aims of the Pursue strand have not changed: see Home Office, Review of Counter-Terrorism Powers, above n 5; CONTEST 3, above n

2, 49-50.

190 United Kingdom, Parliamentary Debates, House of Commons, 7 June 2011, vol 529, cols 52, 56

(Theresa May).

106 she would streamline the ‘confused and contradictory objectives’ of the 2008

strategy.191 The current Prevent strategy now includes three aims, not five:

1. Respond to the ideological challenge of terrorism

2. Prevent people from being drawn into terrorism and ensure that they are

given appropriate advice and support

3. Work with sectors and institutions where there are risks of

radicalisation192

Objective 1 (countering terrorist ideology) is the same as under the 2008 strategy, and

Objective 2 (supporting vulnerable individuals) is the same as Objective 3 under the

2008 strategy. Objective 3 in the current strategy is a new objective that expands

Prevent work into institutions such as schools and prisons.193 The scope of these

objectives will encompass non-violent extremism, as introduced by CONTEST 2.194

The biggest change made by the Coalition government was to remove

Objectives 4 and 5 from the 2008 strategy (building resilient communities and addressing grievances). The Coalition government removed these objectives primarily

191 United Kingdom, Parliamentary Debates, House of Commons, 7 June 2011, vol 529, cols 52, 54

(Theresa May).

192 Prevent Strategy 2011, above n 4, 40 [7.2].

193 Ibid 63-94. This was included because the CLG Committee criticised the Labour governments for not giving sufficient attention to the risks of radicalisation in schools and prisons: CLG Committee, above n 183, 31.

194 Prevent Strategy 2011, above n 4, 6 [3.10].

107 to draw a clearer line between counter-terrorism and community integration.195

Confusion about the lines to be drawn between counter-terrorism and community

integration posed a major issue under the 2008 strategy,196 and so the Coalition

government handed responsibility for promoting community integration over to

DCLG.197 As a result, the Prevent strategy is now more clearly a counter-

radicalisation strategy than a strategy for ‘winning hearts and minds’.198 However, as discussed in Part III below, the lines between counter-terrorism and community integration under the current Prevent strategy are still not perfectly clear.

B Soft Power Responses to Terrorism

Soft power responses to terrorism in Prevent can be divided into five main categories.

1. Counter-Propaganda

Under Objective 1 of the Prevent strategy (countering terrorist ideology) the Home

Office develops responses to terrorist propaganda. Key to this objective is the

Research and Information Communications Unit (RICU). RICU operates within

OSCT and is comprised of representatives from the Home Office, Foreign and

195 Ibid 30. This was also to prevent money from being wasted on ‘irrelevant and unfocused projects’: ibid 30.

196 CLG Committee, above n 183, 56-62.

197 Prevent Strategy 2011, above n 4, 30.

198 As the strategy was originally conceived: see Winning Hearts and Minds, above n 177, 4.

108 Commonwealth Office, and DCLG.199 RICU’s main task is to develop and coordinate

responses to terrorist propaganda across government.200 This includes research on the

language that the government should use when describing the terrorist threat and

presenting its counter-terrorism policies in the media. For example, research

conducted by RICU suggested that the phrase ‘war on terrorism’ could give the

impression that Britain was at war with Islam.201 RICU recommended that the phrase

be replaced with language emphasising Britain’s role in addressing disadvantage and

upholding human rights.202

RICU has also conducted research into Muslim communities and their

relationship with the police. This includes research on how British Muslims feel about

their ‘identity and sense of belonging’, how British Muslims use the Internet, and how

government messages are perceived in British Muslim communities.203 For example,

RICU conducted research into Islamic blogs to determine their level of influence and to find new ways of spreading the government’s counter-terrorism message.204

199 Prevent Strategy 2011, above n 4, 47.

200 See Prevent Strategy 2008, above n 179, 44; Kundnani, above n 183, 38 (Box 5); Prevent Strategy

2011, above n 4, 47-48.

201 Prevent Strategy 2011, above n 4, 48.

202 Ibid.

203 See David Miller and Rizwaan Sabir, ‘Counter-Terrorism as Counterinsurgency in the UK “War on

Terror”’ in Scott Poynting and David White (eds), Counter-Terrorism and State Political Violence

(Routledge, 2012) 12, 25.

204 See ibid 26; Alan Travis, ‘Government names most influential “pro-Islamic” bloggers’, The

Guardian (London), 24 March 2010; Brian Whitaker, ‘Not much blog for your buck’, The Guardian

(London), 25 March 2010.

109 2. Channel

Under Objective 2 of the Prevent strategy the Home Office aims to support

individuals who are deemed to be vulnerable to radicalisation. The main conduit for

this is Channel, a non-punitive intervention program for individuals at risk of

radicalisation. Channel is coordinated by the Association of Chief Police Officers

(ACPO) and is currently funded in 75 local authority areas across the UK.205 Between

April 2007 and March 2013, 2653 individuals were referred to the program, the

majority of whom were young, Muslim males aged between 13 and 25.206

There are three basic stages in the Channel process.207 First, a potential

candidate is referred to the program by community members, local authorities, or the

police. This would be out of some concern that the individual was becoming involved

in extremism. For example, a university lecturer might be concerned that a student is

organising events on campus that encourage extremist interpretations of Islam.

Secondly, a ‘Channel Coordinator’ (usually a designated police officer) determines

whether the individual is vulnerable to radicalisation and requires a ‘support

205 Prevent Strategy 2011, above n 4, 57.

206 Association of Chief Police Officers (ACPO), National Channel Referral Figures (2014)

;

Prevent Strategy 2011, above n 4, 59.

207 See Home Office, Channel: Protecting Vulnerable People from Being Drawn Into Terrorism – A

Guide for Local Partnerships (Home Office, 2012) 15 (‘Channel’). For the Labour governments’

version of this document, see Home Office and Association of Chief Police Officers (ACPO), Channel:

Supporting Individuals Vulnerable to Recruitment by Violent Extremists – A Guide for Local

Partnerships (Home Office and ACPO, March 2010).

110 package’.208 Thirdly, a multi-agency panel determines what support the individual

requires. The panel can include representatives from different institutions (the police,

universities, prisons, health and social services, immigration) depending on the

individual’s needs and circumstances.209 The panel can recommend a range of support

services, including education, counselling, housing and employment.210

3. Community Projects

From its inception, the Prevent strategy has funded a range of community projects

ranging from discussion groups to mentoring programs to arts and cultural activities.

Of 261 projects sponsored by the Pathfinder Fund in 2007/8, just over half (141)

involved debates and discussion forums on violent extremism, and just over one third

(85) involved general education activities.211 For example, Birmingham City Council developed a series of ‘study circles’ to teach young people about Islam and to help local Imams counter the arguments of violent extremists.212 About one in five

Pathfinder projects involved arts and cultural activities, such as media training and

theatre productions, and a smaller percentage involved sports and recreational

208 Channel, above n 207, 7, 9.

209 Ibid 8.

210 Ibid 20-21.

211 Department for Communities and Local Government, Preventing Violent Extremism Pathfinder

Fund: Mapping of Project Activities 2007/2008 (Communities and Local Government, December

2008) 19-20 (‘Pathfinder Mapping’).

212 Department for Communities and Local Government, Preventing Violent Extremism Pathfinder

Fund 2007/08: Case Studies (Communities and Local Government, April 2007) 8-9 (‘Pathfinder Case

Studies’).

111 activities.213 For example, Haringey Council in North London worked with the

Tottenham Hotspur Football Club so that high-profile Muslim coaches and footballers could mentor young Muslims.214 This focus on community building continued

throughout the 2008 strategy, with 70 per cent of Prevent work in 2008/9 and 2009/10

being directed towards improving community integration and capacity building.215

Community integration has been formally excluded from the scope of Prevent

now that Objectives 4 and 5 in the 2008 strategy (building resilient communities and

addressing grievances) have been removed. However, it is likely that community-

based projects of some description will continue to play an important role. The Home

Office has said that community integration projects will continue to be funded under

Prevent if they directly benefit counter-terrorism.216 In 2012, local authorities

developed 80 community-based projects in conjunction with OSCT and the police.217

213 Pathfinder Mapping, above n 211, 22.

214 Pathfinder Case Studies, above n 212, 5.

215 Prevent Strategy 2011, above n 4, 29.

216 Ibid 30 [6.31].

217 Home Office, CONTEST: The United Kingdom’s Strategy for Countering Terrorism – Annual

Report (London: Home Office, March 2013, Cm 8583) 21 [2.45] (‘CONTEST Annual Report 2013’).

Examples of relevant local authorities for Prevent work include housing departments, environmental health departments, tax departments, health departments, social services, youth services, arts and cultural delivery bodies, schools, colleges, and universities: see Home Office, Counter-Terrorism

Local Profiles: An Updated Guide (Home Office, September 2012) 12.

112 4. Countering Online Radicalisation

Another key aspect of Prevent involves efforts to counter the spread of violent

extremism on the Internet. This is largely the responsibility of RICU, which conducts

a range of projects to challenge terrorist ideology online – such as publishing

‘counter-narratives’ and critically analysing extremist propaganda.218 In addition, the

Home Office works with civil society groups and social media enterprises (such as

Facebook) to help them plan and manage their communications strategy in accordance with the Prevent objectives.219 The Home Office will also help to develop

‘international online media hubs for the distribution of material that counters terrorist

propaganda’.220 The aim of these strategies is to reduce the exposure of individuals to

harmful views which might lead them to become involved in terrorism.

5. Institutional Approaches

Under Objective 3 of the Prevent strategy, staff in various public institutions are

provided with training so that they better understand the Prevent objectives and know

how to identify individuals at risk of radicalisation. The Prevent review sets out a

range of strategies for increasing awareness of Prevent in schools, universities, faith

institutions, hospitals, prisons and charities.221 For example, ACPO has published

‘Prevent, Police and Universities’, a guide for police officers to help university staff

218 Prevent Strategy 2011, above n 4, 77 [10.92].

219 Ibid 52 [8.62]; CONTEST 3, above n 2, 76 [6.20].

220 CONTEST 3, above n 2, 76 [6.20].

221 Prevent Strategy 2011, above n 4, 63-94.

113 contribute to Prevent.222 A similar guide exists for secondary schools so that ‘teachers and other school staff know what to do when they see signs that a child is at risk of radicalisation’.223 A ‘Preventing Extremism Unit’ has also been established within the

Department for Education.224 The Preventing Extremism Unit conducts due diligence to reduce the risk that schools will be used to spread terrorist ideology.225

III TESTING SMART POWER THINKING: ARE HARD POWER AND

SOFT POWER DISTINCT?

It is clear, then, that the UK government has a comprehensive array of hard and soft power measures that it relies upon to prevent domestic terrorism. The next three sections analyse the extent to which the three components of smart power thinking

222 Association of Chief Police Officers, Prevent, Police and Universities: Guidance for Police Officers

& Police Staff to Help Higher Education Institutions Contribute to the Prevention of Terrorism

(ACPO, May 2012). See 11-12 for a range of other publications relevant to Prevent in universities.

223 Association of Chief Police Officers, Prevent, Police and Schools: Guidance for Police Officers and

Police Staff to Help Schools Contribute to the Prevention of Violent Extremism (ACPO, December

2009). See Prevent Strategy 2011, above n 4, 68.

224 Prevent Strategy 2011, above n 4, 70 [10.49].

225 Ibid. A public feud has recently taken place between the Education Secretary (Michael Gove) and the Home Secretary (Theresa May), who have criticised each other for failing to sufficiently address the risks of extremism in British schools. This followed allegations that Muslim extremists were infiltrating schools in Birmingham through a ‘Trojan Horse’-style strategy: see Andrew Sparrow,

‘Theresa May to face questions from MPs over schools extremism row’, The Guardian (London), 9

June 2014; Andrew Sparrow and Richard Adams, ‘“Trojan horse” row: Downing Street launches snap

Ofsted visits’, The Guardian (London), 9 June 2014; Keith Perry, ‘Trojan horse plot school criticised in

Ofsted report’, The Telegraph (London), 7 June 2014.

114 accurately describe this UK experience of combining hard and soft power. They

address each component of smart power thinking in turn. First, this current section considers the extent to which the UK’s hard and soft power responses to terrorism are

distinct. Next, Part IV considers the extent to which the UK’s soft power responses to

terrorism are morally preferable to its hard power responses. Thirdly, Part V considers

the extent to which hard and soft power in UK counter-terrorism are complementary.

The first component of smart power thinking is that hard power and soft

power describe two distinct approaches to influencing behaviour. While Nye

recognises a number of difficulties in distinguishing hard and soft power in

practice,226 he nonetheless maintains that the distinction is ‘strong enough to allow us

to employ the useful shorthand reference’.227

In UK counter-terrorism, this distinction is immediately apparent in the contrasting law and policy measures outlined above. On the one hand, the UK’s counter-terrorism laws aim to prevent terrorism through coercion and deterrence; on the other hand, the Prevent strategy aims to influence individuals so that they do not want to become involved in terrorism in the first place. This distinction between hard and soft power is useful for understanding the contrasting ways in which domestic terrorism can be prevented.

On closer inspection, however, the UK experience of counter-terrorism reveals the importance of a more complex view. This section explores the convergence of hard and soft power across Pursue and Prevent, in the close and ongoing relationship between counter-terrorism and community integration, and within individual law and

226 Joseph S Nye Jr, Soft Power: The Means to Success in World Politics (Public Affairs, 2004) 7, 9,

64-65; Joseph S Nye Jr, The Future of Power (Public Affairs, 2011) 25.

227 Nye, Soft Power, above n 226, 8.

115 policy measures. It also considers the Protect and Prepare strands of CONTEST, which further complicate this apparent dichotomy between hard and soft power.

A Pursue and Prevent

In 2010, the House of Commons Select Committee on Communities and Local

Government (‘CLG Committee’) published a major report on the 2008 Prevent strategy.228 One of the major issues raised in the CLG Committee’s inquiry was the

evident overlap between Pursue and Prevent. This was largely because the

government had embedded counter-terrorism-trained police officers within local

services to oversee the delivery of Prevent work.229 These officers were known as

‘Prevent Engagement Officers’ (PEOs) and ‘Counter-Terrorism Intelligence Officers’

(CTIOs). The role of PEOs was to ‘connect counter-terrorism policing,

neighbourhood policing and communities’.230 The role of CTIOs was to work

alongside PEOs and ‘inform and guide their community engagement’.231 In addition,

Police Community Support Officers (PCSOs) worked alongside PEOs to ‘provide a visible police presence and build relationships with the public’.232 These positions created damaging perceptions that the government was using Prevent to spy on

communities for the purposes of Pursue. The CLG Committee noted that many

228 CLG Committee, above n 183.

229 Ibid 52-55.

230 Prevent Strategy 2011, above n 4, 99 [11.19].

231 Ibid 100 [11.25].

232 Ibid 99 [11.20].

116 witnesses ‘felt deeply uncomfortable with the notion of counter-terrorist police work

getting too close to public services in any way’.233 As one contributor put it:

[T]he link with what the Police are doing with their PVE [preventing violent

extremism] work has been unhelpful. Whilst only a few challenge the role of police

in PVE work, no one is happy to see community projects linked to the work of the

police. The creation of Prevent officers working in the police service does nothing

but confuse our work. Some (deliberately) see no distinction between the Police PVE

work and community work. This leads to community projects being accused of being

police spies. Some … have promoted the idea that Prevent is actually Pursue.234

This blurring between Prevent and Pursue is likely to continue, as the Coalition

government has retained a significant role for the police in overseeing Prevent work.

The Coalition government has stopped funding CTIOs,235 but PEOs and PCSOs will continue to oversee the delivery of local Prevent work in communities.236 The review

emphasised that the police will continue to play a ‘key role’ in delivering the new

Prevent aims, and particularly in delivering Channel.237 Indeed, two-thirds of Home

Office funding for Prevent in 2011/12 was dedicated to ‘policing activities’.238 This is more than increased cooperation between different arms of government, because

233 CLG Committee, above n 183, 53 [142].

234 Ibid 52; Ev 228.

235 Prevent Strategy 2011, above n 4, 100 [11.26].

236 Ibid 99-100.

237 Ibid 100 [11.29].

238 Ibid 101.

117 police officers – employees of an institution typically associated with hard power –

are directly involved in delivering soft power responses to terrorism at the local level.

Another remaining issue is that the current Prevent strategy emphasises the

importance of hard power legal measures as a mechanism for countering terrorist

ideology and radicalisation. This issue was not raised by the CLG Committee,

although it can be traced back to the first version of Prevent in 2006 and surely contributes to this ongoing confusion about the distinction to be drawn between hard and soft power. The second Prevent aim in CONTEST 1 was to deter those who

facilitate and encourage terrorism,239 and the strategy listed the proscription of terrorist organisations in the TA2000, speech offences in the TA2006, and coercive immigration powers (such as deportation for ‘unacceptable behaviours’) as ways in which this aim might be achieved.240 The 2008 Prevent strategy confirmed under its

Objective 2 (disrupting those who promote violent extremism) that investigating and

prosecuting individuals for terrorism offences remained a ‘vital part of Prevent’.241

The Coalition government has since removed Objective 2 from the 2008 strategy, which clarified some of this confusion surrounding Pursue and Prevent, but it is still difficult to draw a clear line between these two policy strands. In particular, the Prevent review listed the proscription regime in the TA2000 and speech offences

in the TA2006 as key mechanisms by which the revised Prevent aims could be

achieved.242 More specifically, the Prevent review listed the speech offences and take-

down notices in the TA2006 as ways in which the threat of terrorist ideology and

239 CONTEST 1, above n 167, 1.

240 Ibid 12.

241 Prevent Strategy 2008, above n 179, 23.

242 Prevent Strategy 2011, above n 4, 26-7.

118 radicalisation could be countered online.243 This suggests that hard power legal measures will continue to play a key role in contributing to the aims of Prevent work.

This blurring of hard and soft power can also be seen in efforts to train public officials under Objective 3 of the current Prevent strategy. For example, the training of charities to identify and support individuals at risk of radicalisation can largely be described as a soft power response to terrorism, but the Prevent review also listed criminal offences under charity law as an important mechanism for ensuring that charities contribute to the aims of Prevent.244 Another key example is the expansion

of Prevent work into prisons. Prisoners serving sentences for terrorism offences will

be required to take part in ‘de-radicalisation’ programs, and other prisoners will be

monitored with risk assessments and subjected to ‘counter-radicalisation’ programs if

they show signs of becoming involved in extremism.245 In these respects, the

Coalition government has further contributed to confusion about the lines to be drawn

between hard and soft power in UK counter-terrorism policy. In 2012, the Home

Affairs Committee reported that there was ‘lingering suspicion about the Prevent

strategy amongst Muslim communities, many of whom continue to believe that it is

essentially a tool for intelligence-gathering or spying’.246

243 Ibid 77. See also CONTEST 3, above n 2, 75.

244 Ibid 92-93.

245 Ibid 89 [10.173]. See generally Peter R Neumann, Prisons and Terrorism: Radicalisation and De-

Radicalisation in 15 Countries (International Centre for the Study of Radicalisation and Political

Violence, 2010).

246 House of Commons Home Affairs Committee, Parliament of United Kingdom, Roots of Violent

Radicalisation: Nineteenth Report of Session 2010-12 (HC 1446, 6 February 2012) 48 [16] (‘Home

Affairs Committee’).

119 B Counter-Terrorism and Community Integration

A second, related issue is the close and ongoing relationship between counter- terrorism and community integration. This was another major issue raised by the CLG

Committee with regard to the 2008 strategy. Many witnesses were concerned that

Prevent funded projects for improving community integration, yet those projects fell under the banner of an otherwise coercive counter-terrorism agenda.247 The Institute for Community Cohesion gave evidence that this confusion between counter- terrorism and community integration created damaging suspicions about Prevent work:

The real problem with the Prevent agenda is simply that it is presently situated within

a counter-terrorism strategy and implemented by a team dedicated to counter-

terrorism and is therefore viewed through this lens with suspicion and apprehension;

there is a strong belief that the community will be spied upon, wrongly accused and

treated unfairly; or simply that the community is made guilty by association with

terrorism.248

Distrust of Prevent was sufficient for some local authorities to avoid using the label

altogether. The Chief Executive of Leicester City Council told the CLG Committee

247 CLG Committee, above n 183, 56-62. See Thomas, above n 183, 450-453.

248 CLG Committee, above n 183, 119.

120 that they ‘do not talk about Prevent in Leicester’.249 The Council purposely renamed

its Prevent projects to avoid negative associations with counter-terrorism.250

The Coalition government made some significant improvements to Labour’s

approach by removing Objectives 4 and 5 from the 2008 Prevent strategy and by

handing responsibility for promoting community integration over to DCLG.251 The

Prevent review emphasised that counter-terrorism and community integration ‘must not be merged together’, or else the success of efforts to improve community integration would continue to be ‘jeopardised by being given a security label’.252

This separation between counter-terrorism and community integration will

not, however, be complete. The Prevent review described the distinction between

counter-terrorism and community integration as a ‘general rule’ and not a strict

requirement.253 The Coalition will continue to fund community projects if they

directly benefit counter-terrorism,254 and 80 such projects were developed in 2012.255

Theresa May announced in Parliament that she would establish a joint board to

examine this ongoing ‘interface’ between Prevent and community integration.256

249 Ibid Ev 39.

250 Ibid. See also Ev 40: Councillor Alan Rudge gave evidence that Birmingham City Council ‘did not go as far as Leicester but we tended to use the phrase “PVE” rather than “Preventing Violent

Extremism” because it was not popular because of its misconnotation’.

251 Prevent Strategy 2011, above n 4, 30.

252 Ibid 30 [6.30].

253 Ibid.

254 Ibid 30 [6.31].

255 CONTEST Annual Report 2013, above n 217, 21 [2.45].

256 Parliament of United Kingdom, Hansard, House of Commons, 7 June 2011, vol 529, col 60.

121 It could be said that this ongoing blurring between hard and soft power is

simply the result of poor policy choices – that the Coalition could achieve a clear

distinction between the two approaches, but it has not yet made the right policy

decisions to do so. There may be some truth to this, as the Coalition government

could refuse to fund any community integration projects under Prevent and

completely remove the police from any involvement in local authorities. However, the

Coalition government’s evident reluctance to take these steps suggests there is a

deeper issue at play. The Coalition government does not want to remove community

integration completely from the scope of Prevent because it believes that the success

of CONTEST still depends upon some connection to soft power. As the Home

Secretary explained in delivering the Prevent review, the success of the government’s

counter-terrorism efforts still ‘depends on a successful cohesion and integration

strategy’.257 Without this overlap between counter-terrorism and community integration, CONTEST would be a counter-terrorism and counter-radicalisation strategy with no ‘friendly’, community-based element.

In addition, the Coalition government wants police to be involved directly in soft power responses to terrorism because this helps ‘to build trust and confidence in

policing’.258 Without this overlap between Pursue and Prevent, the UK police would be involved solely in disrupting terrorist activity through hard power counter- terrorism laws. This would effectively signal a return to the Blair government’s controversial pre-2006 approach. The close and ongoing relationship between hard

257 Parliament of United Kingdom, Hansard, House of Commons, 7 June 2011, vol 529, col 52. See also 2011 Prevent Strategy, above n 4, 30 [6.30].

258 Prevent Strategy 2011, above n 4, 99 (in relation to the ongoing importance of PEOs and PCSOs).

122 and soft power is therefore designed to moderate the UK’s hard power responses to terrorism, and to improve the overall validity and legitimacy of CONTEST.

In international relations theory this is the problem of hard disempowerment: governments do not want their policies to be founded solely on hard power or else they will cultivate a ‘brutish image that … generates countervailing processes’.259 It seems, therefore, that the Coalition government needs some overlap between hard and soft power for its domestic counter-terrorism law and policy to be viewed as valid and legitimate. And yet, as long as it maintains this overlap, there is likely to be ongoing confusion about the difference between hard and soft power responses to terrorism, as well as damaging perceptions that soft power responses are designed merely to assist investigation and prosecution. It may not strictly be possible, in this respect, for the

UK government to achieve a clear and successful distinction between hard and soft power in its efforts to prevent domestic terrorism.

C Individual Law and Policy Measures

In addition to these structural tensions across CONTEST, it can also be difficult to draw clear lines between hard and soft power with regard to individual law and policy measures. A good example is the speech offences in the TA2006, which criminalise statements and publications that encourage or glorify terrorism, but are designed more broadly to uphold democratic values by preventing extremists from promoting terrorism.260 In introducing the speech offences into Parliament, Home Secretary

259 Giulio M Gallarotti, Cosmopolitan Power in International Relations: A Synthesis of Realism,

Neoliberalism, and Constructivism (Cambridge University Press, 2010) 38.

260 Terrorism Act 2006 (UK) c 11, ss 1-2.

123 Charles Clarke spoke of protecting democracy and the right to freedom of expression,

such as by protecting domestic faith groups from the influence of extremists:

Of all the societies throughout the world, perhaps that of the United Kingdom is the

society that laid the basis for the values that we here seek to defend: valuing and

building free speech and freedom of expression, including a free media; believing in a

society that respects all faiths, races and beliefs; believing in a society founded on the

rule of law; wanting every citizen to have a democratic stake in our society; valuing

the free economy, which has built prosperity, including high-quality public services

on which we all depend; and valuing the fact that women can play a full role in our

society.261

In prescribing maximum penalties of seven years’ imprisonment, the speech offences are undeniably coercive and therefore fit within Nye’s definition of hard power.262 On

the other hand, human rights and democracy are values that Nye typically associates

with soft power,263 which suggests that the speech offences might also be described under this heading. In other words, the speech offences in the TA2006 combine elements of both hard and soft power; they are coercive measures, but they can also protect and contribute to soft power values. This is also clear because prosecution for criminal offences is recognised as an important component of both the Pursue and

261 Parliament of United Kingdom, Hansard, House of Commons, 26 October 2005, vol 438, col 322

(Charles Clarke).

262 Nye, Soft Power, above n 226, 5; Joseph S Nye Jr, Bound to Lead: The Changing Nature of

American Power (Basic Books, 1990) 31.

263 Nye, Soft Power, above n 226, 62.

124 Prevent strands.264 The immediate function of the speech offences is to punish

extremists, but their wider purpose is to address the underlying political and social

causes of terrorism.

Another key example is the Channel intervention program. Channel

interventions are formally non-coercive and non-punitive, yet police officers play a

key role in coordinating the program, acting as Channel coordinators, and sitting on

multi-agency panels.265 More importantly, there is significant overlap between the conduct giving rise to Channel interventions and the conduct that attracts serious criminal penalties under the TA2000 and TA2006. In the second stage of the program,

Channel coordinators rely on a list of indicators to determine whether an individual is vulnerable to radicalisation and in need of a support package.266 Under the current

Prevent strategy, this list of indicators includes the following behaviours:

• Changing their style of dress or personal appearance to accord with the group;

• Possession of material or symbols associated with an extremist cause;

• Attempts to recruit others to the group/cause/ideology;

• Communications with others that suggest identification with a

group/cause/ideology;

• Speaking about the imminence of harm from the other group and the importance

of action now;

• Expressing attitudes that justify offending on behalf of the group, cause or

ideology;

• Condoning or supporting violence or harm towards others; and

264 CONTEST 3, above n 2, 50; Prevent Strategy 2011, above n 4, 26-27.

265 See Channel, above n 207, 7-8.

266 Ibid 11-12.

125 • Plotting or conspiring with others267

Clearly there are significant similarities between this list of behaviours and the kinds of conduct that can be prosecuted under the TA2000 and TA2006, such as supporting terrorism, wearing terrorist uniforms, possessing articles for a purpose connected with terrorism, collecting information that could be useful for terrorism, encouraging or glorifying terrorism, and preparing terrorist acts.268 The Coalition government has acknowledged this overlap, but in doing so said only that taking part in Channel

‘would not lead to an individual receiving a criminal record’.269 It is difficult to say, therefore, whether Channel is a hard or soft power response to terrorism: it does not fit within Nye’s definition of hard power because it is formally non-coercive, and yet it exposes individuals to police-led interventions for engaging in conduct that could attract serious criminal penalties. As such, the consequences for individuals are more severe than in other soft power responses to terrorism – such as education programs and community discussion groups – which are aimed generally at communities.

D Protect and Prepare

More broadly, any apparent dichotomy between hard power in Pursue and soft power in Prevent is further complicated by the Protect and Prepare strands, which fit neatly into neither category. Under Protect, for example, the Centre for the Protection of

National Infrastructure (CPNI) gives advice to government departments and private

267 Ibid 12.

268 Terrorism Act 2000 (UK) c 11, ss 11, 12, 13, 57, 58; Terrorism Act 2006 (UK) c 11, ss 1, 2, 5.

269 Channel, above n 207, 11.

126 organisations about how to protect their buildings against terrorist attacks.270 This includes recommendations as to the use of CCTV, intruder alarms, extra lighting, blast-resistant building materials, and security screening procedures.271 In some sense

these defensive measures could be described as hard power responses because they

act as a ‘threat’ or deterrent to potential terrorists – but clearly they are of a different

nature to TPIMs or criminal offences under Pursue, which are directly coercive in

their impact on individuals. A more appropriate way to understand Protect work

would be through the concept of situational crime prevention, in which governments

reduce opportunities to commit crime by altering or managing the immediate physical

environment.272 For example, governments can reduce the frequency of muggings by

designing open public spaces, improving street lighting, and installing CCTV.273

Likewise, it is difficult to describe Prepare work as either a hard or soft power

response to terrorism. The core framework for Prepare work is the National

Capabilities Resilience Programme (NCRP).274 The NCRP is managed by the Civil

270 See CONTEST 2, above n 180, 106.

271 See Centre for the Protection of National Infrastructure, ‘Physical Security’ (2013)

272 See, eg, Ronald V Clarke, ‘Situational Crime Prevention’ (1995) 19 Crime & Justice 91-150; Daniel

Gilling, Crime Prevention: Theory, Policy and Practice (Routledge, 1997) 3-4; Adam Sutton, Adrian

Cherney and Rob White, Crime Prevention: Principles, Perspective and Practices (Cambridge

University Press, 2008) 22; Adam Sutton, ‘Crime Prevention: Promise or Threat?’ (1994) 27(5)

Australian & New Zealand Journal of Criminology 5, 7.

273 See ibid.

274 See Cabinet Office, ‘Preparation and Planning for Emergencies: The National Resilience

Capabilities Programme’ (2013) .

127 Contingencies Secretariat and comprises various workstreams designed to improve

effective emergency response procedures – such as public warning systems, mass

evacuation procedures, the provision of emergency shelters, the clearing of attack

sites and the containment of dangerous substances.275 In addition, the Civil

Contingencies Act 2004 creates a duty for organisations involved in emergency

response to undertake and publish regular risk assessments.276 Under a very broad

definition of coercion, these measures could be described as examples of hard power

because they compel individuals to act in particular ways, such as by complying with

evacuation procedures or publishing risk assessments. However, as in the case of

Protect, this is not a very useful way of understanding Prepare work, as there is

certainly a distinction between developing emergency response procedures and

prosecuting individuals for attempting to commit a terrorist act. A more useful way to

understand Prepare would be through the growing literature on the concept of

‘resilience’, which describes the ability of social and ecological systems to recover

effectively from natural disasters, terrorist attacks and other public emergencies.277

275 Ibid.

276 Civil Contingencies Act 2004 (UK) c 36, s 2(1).

277 See, eg, Jeremy Walker and Melinda Cooper, ‘Genealogies of Resilience’ (2011) 42(143) Security

Dialogue 143; Danny Mackinnon and Kate Driscoll Derickson, ‘From Resilience to Resourcefulness:

A Critique of Resilience Policy and Activism’ (2013) 37(2) Progress in Human Geography 253;

Siambabala Bernard Manyena, ‘The Concept of Resilience Revisited’ (2006) 30(4) Disasters 433;

Mark Neocleous, ‘Resisting Resilience’ (2013) 178 (March/April) Radical Philosophy 2.

128

E Conclusions

Clearly, then, to speak of a simple dichotomy between hard and soft power is to

dramatically oversimplify UK responses to terrorism and to ignore some of the major

structural tensions across CONTEST which have undermined the success of the

government’s counter-terrorism efforts. Hard power counter-terrorism laws, like soft

power responses to terrorism, can be used to counter the spread of terrorist ideology

and radicalisation. Police officers – as employees of an institution typically associated

with hard power – continue to play a key role in delivering soft power responses to

terrorism in Prevent. Prevent retains a close and uncertain relationship with efforts to improve community integration. And Prevent plays an important role in prisons while individuals serve sentences for criminal offences. This blurring between hard and soft power is a significant practical issue because it creates an ambivalence which undermines the success of soft power responses to terrorism. Communities are not sure whether government agencies and local authorities are trying to help them or identify which of their members are potential terrorists. In addition, any apparent dichotomy between hard power in Pursue and soft power in Prevent is only half the story: CONTEST is a strategy built on four pillars, not two, and the concepts of hard and soft power have little utility with regard to the Protect and Prepare strands.

Hard and soft power can be useful shorthand for some obvious distinctions in counter-terrorism: there is certainly a difference, for example, between subjecting someone to a TPIM notice and organising a community discussion group about Islam.

Beyond such simple examples, there is sufficient blurring between hard and soft power in UK counter-terrorism that this apparent dichotomy breaks down

129 significantly. The most important lesson to learn from this UK experience is not that

domestic responses to terrorism can be divided into the two categories of hard and

soft power, but rather that the complex blurring between hard and soft power can

compromise the success of a government’s counter-terrorism efforts.

IV IS SOFT POWER MORALLY PREFERABLE TO HARD POWER?

The second component of smart power thinking is that soft power is morally

preferable to hard power. For Nye, soft power is morally preferable to hard power

with respect to autonomy because it allows individuals a greater capacity to determine

their own desires and preferences.278 While Nye recognises that soft power can undermine autonomy, and that soft power can be used to achieve the same ends as hard power, he nonetheless maintains that a ‘preference for soft means can be morally justified’.279 Academic commentators on counter-terrorism have reinforced this idea

by suggesting that soft power is ‘critical to a successful counter-terrorism strategy

within societies that are defined by high levels of cultural and religious diversity’.280

This section considers three ways in which the UK’s hard power legal

responses to terrorism impact negatively on autonomy: by creating suspect

communities, by restricting political and religious choice, and by intervening before

individuals have had sufficient opportunity to choose to remain innocent. In each of

these respects, it compares the impact of soft power responses to terrorism in Prevent.

278 See Chapter One, Part I(B).

279 Nye, The Powers to Lead, above n 278, 142.

280 Sharon Pickering, Jude McCulloch and David Wright-Neville, Counter-Terrorism Policing:

Community, Cohesion and Security (Springer, 2008) 8.

130

A Suspect Communities

A major criticism of the UK’s hard power responses to terrorism is that they have reinforced prejudiced stereotypes of a suspicious Muslim ‘other’. Pantazis and

Pemberton argue that the use of counter-terrorism laws after 9/11 reinforced prejudiced stereotypes of British Muslims as a ‘suspect community’.281 They point to a sharper percentage rise in searches of Asian persons under the terrorism legislation after 9/11, as well as significantly higher searches of Asian persons relative to the rest

281 Pantazis and Pemberton, above n 139. McCulloch and Pickering have made similar comments, arguing that counter-terrorism laws ‘mobilize prejudice around identity’: McCulloch and Pickering, above n 40, 635. Greer has critiqued Pantazis and Pemberton’s claims, arguing that there is no empirical evidence to demonstrate a state-sanctioned program of discrimination: Steven Greer, ‘Anti-

Terrorist Laws and the United Kingdom’s “Suspect Muslim Community”’ (2010) 50 British Journal of

Criminology 1171, 1172. The findings of current Independent Reviewer of Terrorism Legislation provide some support to Greer’s argument. With regard to the sch 7 port and border controls, for example, Anderson concludes that criticism of the police is not warranted because there is no evidence demonstrating that individuals from a Muslim background are targeted more heavily compared to the percentage of Muslim people in the terrorist population: Anderson, The Terrorism Acts in 2012, above n 8, 99. However, Anderson also believed it ‘overwhelmingly likely’ that minority ethnic communities were targeted to a higher degree relative to their representation in the overall travelling population:

Anderson, The Terrorism Acts in 2012, above n 8, 99. In any case, it is clear that there have been damaging perceptions that Muslim communities are targeted disproportionately under the UK’s terrorism laws, even if state authorities are not in fact actively discriminating against those communities: see Anderson, The Terrorism Acts in 2012, above n 8, 93, 99; Tufyal Choudhury and

Helen Fenwick, The Impact of Counter-Terrorism Measures on Muslim Communities (Equality and

Human Rights Commission, Research Report 72, 2011) vi.

131 of the UK population.282 They liken this to the way in which emergency legislation was used disproportionately against Irish communities during the Troubles in

Northern Ireland.283 By impacting disproportionately on Muslim communities, the

UK’s counter-terrorism laws have contributed to a sense of alienation such that

British Muslims feel branded by society as potential terrorists and haunted by the

‘gaze of counter-terrorist policing’.284 This impacts negatively on autonomy because

it affects the capacity of those communities to reflect rationally upon and determine

the course of their own lives, free of the fear of discrimination and state intervention.

The Brown government’s experience with the 2008 Prevent strategy showed

that soft power responses to terrorism can equally leave Muslim communities feeling

alienated and branded as potential terrorists. The heavy focus of Prevent work on

Muslim communities was perhaps the major issue raised during the CLG

Committee’s inquiry. Contributors to the inquiry gave evidence that the Prevent

strategy’s heavy focus on Islamist extremism had left Muslim communities feeling

‘unfairly targeted and branded as potential terrorists’.285 The Institute of Community

Cohesion gave evidence that ‘the present single-minded focus on Muslims has …

been strongly resented by the majority Muslim community’.286 These views were

282 Pantazis and Pemberton, above n 139, 656.

283 Ibid 646-650.

284 Ibid 653.

285 CLG Committee, above n 183, 11. See Thomas, above n 183, 445-448.

286 CLG Committee, above n 183, Ev 116.

132 understandable as 92 per cent of community projects sponsored by the Pathfinder

Fund identified Muslim communities as their primary or secondary beneficiaries.287

This focus on Muslim communities was encouraged by the Brown government through performance metrics and the funding formula for Prevent projects. This could clearly be seen in NI35, the new National Indicator launched by the Brown government at the same time as the 2008 strategy. Among other criteria,

NI35 assessed the performance of local authorities with regard to their ‘understanding of, and engagement with, Muslim communities’.288 The funding formula for

community projects under the 2008 strategy was an even more striking example. The

formula allocated Prevent funds between communities on the basis of how many

Muslims resided in each. Communities with over 2000 Muslims would qualify for

area-based grants, and then the amount of funding each community received would

increase in direct proportion to the number of resident Muslims above the qualifying

rate.289 Clearly, distributing funds for counter-terrorism projects on a ‘per-Muslim’

basis was bound to reinforce perceptions of Muslim communities as inherently

suspicious. The fact that these soft power responses were formally non-coercive, or

even merely administrative, was irrelevant; all that was required to create a suspect

community was a disproportionate focus on one ethnic community relative to others.

287 Pathfinder Mapping, above n 211, 30, 33 (61 per cent of project coordinators identified Muslim

communities as their primary beneficiary and a further 31 per cent identified Muslim communities as

their secondary beneficiary).

288 Department for Communities and Local Government, NI35: Building Communities Resilient to

Violent Extremism – Assessment Framework 1 (2008) .

289 CLG Committee, above n 183, 50, Ev 101; Kundnani, above n 183, 12-13.

133 This additional suspicion created by Prevent was reinforced by the collection

of cultural and demographic information. During the CLG Committee’s inquiry, The

Guardian published an article claiming that the government was using Prevent ‘to

gather intelligence about innocent people’.290 The Guardian had seen documents revealing that the government was gathering data about political views, religious beliefs, mental health issues, sexual activity, social relations and other sensitive information about members of Muslim communities.291 This information could be stored until the individuals concerned reached the age of 100.292

On the basis of The Guardian’s report, Prevent was described as ‘the biggest

spying programme in Britain in modern times and an affront to civil liberties.’293 This might have exaggerated the point, but many contributors to the CLG Committee’s inquiry shared the view that Prevent was a program for spying on potential terrorists.294 Much of this concern was caused by Channel, because the police had collected demographic data on communities and sensitive personal details in order to determine which individuals were vulnerable to radicalisation.295 Charles Farr,

Director-General of OSCT, emphasised that the information collected for Channel

was distinct from the kinds of intelligence ordinarily collected by the police and

security services about suspected terrorists.296 But the fact that Channel and the UK’s

290 Vikram Dodd, ‘Government anti-terrorism strategy “spies” on innocent’, The Guardian (London),

16 October 2009.

291 Ibid.

292 Ibid.

293 Ibid.

294 CLG Committee, above n 183, 11-14. See Thomas, above n 183, 448-450.

295 See CLG Committee, above n 183, 14-15.

296 Ibid 15.

134 counter-terrorism laws can target the same kinds of conduct suggests that the lines

between intelligence and cultural or demographic information in this context are not so clear.297 The motives behind this information gathering may be benign and even

benevolent, but as long as police are involved in the collection of cultural and

demographic information for purposes connected to counter-terrorism, then soft

power responses to terrorism are likely to contribute to an ongoing sense of fear,

alienation and discrimination within Muslim communities.

The Coalition government has addressed this heavy focus on Muslim

communities to some degree by amending the Prevent funding formula and by

expanding the scope of the strategy to encompass forms of terrorism other than

Islamist extremism.298 In practice, however, the heavy focus of Prevent work in

Muslim communities is unlikely to change. The Coalition government explained that

Prevent resources will continue to be directed towards Islamist extremism because

Islamist terrorist organisations represent ‘the greatest terrorist threat we currently

face’.299 As a result, some organisations gave evidence to the Home Affairs

297 See the list of indicators relied upon by Channel coordinators and discussion in Part III(C): Channel, above n 207, 12. This is made worse by the heavy focus on Muslim communities in RICU’s research: see Miller and Sabir, above n 203, 24-26.

298 Prevent funds will now be distributed between communities according to a ‘risk-based approach’ that focuses on the activity of terrorist organisation and terrorist sympathisers: Prevent Strategy 2011, above n 4, 34 [6.55], 40 [7.7]. The Coalition government’s Prevent strategy now lists other forms of terrorism, including Northern Ireland and extreme right-wing terrorism: Prevent Strategy 2011, above n 4, 14-15.

299 Prevent Strategy 2011, above n 4, 25 [6.12]. See also CONTEST Annual Report 2013, above n 217,

21 [2.42].

135 Committee that the Coalition government only paid ‘lip service’ to the idea of

combating other types of terrorism.300

The Coalition government has also improved information-gathering procedures under Channel, although there is no indication that the type or content of the information being collected will change.301 Indeed, it seems that the Coalition

government is expanding and formalising the collection of cultural and demographic

data under Prevent. In evidence to the Home Affairs Committee, the Home Office

explained that it was recruiting social science experts to form a ‘Prevent Knowledge

Team’.302

The Coalition government’s ongoing focus on Islamist extremism is

understandable from a practical perspective, but it does suggest an inherent problem

with the use of soft power in domestic counter-terrorism: as long as Islamist extremism remains the most immediate threat to national security, it will be extremely difficult for the UK government to devise soft power responses to terrorism that do not focus disproportionately on Muslim communities. It would be a waste of resources for the Home Office to conduct Prevent work in communities where there is no evidence of individuals becoming involved in Islamist extremism, and yet as long

300 Home Affairs Committee, above n 246, 20.

301 The Prevent review explained that the Coalition government would develop a ‘Case Management

Information System’ (CMIS) to ensure that any information required for Channel is collected according to a standard set of criteria: Prevent Strategy 2011, above n 4, 61 [9.34]. However, the

Coalition government has not indicated any changes to the type of information that will be collected under Channel. Likewise, the Coalition government has insisted that RICU will develop ‘sharper and more professional counter-narrative products’, but it has not indicated that the content of RICU’s research will change: Prevent Strategy 2011, above n 4, 52 [8.60].

302 Home Affairs Committee, above n 246, Ev 93.

136 as the Home Office focuses on communities where there is evidence of involvement in Islamist extremism, it is likely to continually reinforce prejudiced stereotypes of a suspicious Muslim ‘other’. Indeed, now that the Coalition government has placed some important limits on the UK’s counter-terrorism laws, it may be that any ongoing sense of alienation in Britain’s Muslim communities due to counter-terrorism measures will be the result of soft power in Prevent, and not of hard power in Pursue.

B Limiting Political and Religious Choice

A second way in which hard power legal responses to terrorism reduce autonomy is by limiting free choice of political and religious views. By defining terrorism according to its political or religious motive,303 and by criminalising speech and

related conduct that causes no direct harm to others,304 the UK’s counter-terrorism

laws significantly reduce an individual’s capacity to freely determine and express

their views about politically and religiously motivated conduct. A key example of this

is R v Gul, in which a UK law student received five years’ imprisonment for

uploading videos onto YouTube that praised insurgent attacks in the Middle East.305

Despite any risk that those videos might have encouraged another person to commit

an act of terrorism, this is undeniably a significant restriction on liberty for voicing

opinions about a foreign conflict. Not only do the speech offences in the TA2006

punish individuals for expressing certain ideas about politically and religiously

303 Terrorism Act 2000 (UK) c 11, s 1(1)(c).

304 See especially Terrorism Act 2006 (UK) c 11, ss 1-2.

305 R v Gul [2012] EWCA Crim 280.

137 motivated conduct; they also act as a general deterrent to the rest of the population

against holding and expressing views that might be classified as glorifying terrorism.

The UK government’s experience with Prevent shows that soft power responses to terrorism can also significantly reduce an individual’s capacity to freely determine their views on politics and religion. This was particularly evident in community projects under the 2008 Prevent strategy that were designed to build

‘resilient’ communities.306 Many of these projects limited religious choice by

encouraging ‘moderate’ interpretations of Islam and challenging those that were not

consistent with Western ideals. The Hounslow Asian and African Youth Group

(HAAYA) in West London, for example, established a mentoring project designed to

‘articulate an interpretation of Islam that supports integration, citizenship and the

adoption of democracy’.307 Although these projects have been described as attempts

to improve community integration,308 the underlying rationale was not to encourage diversity of opinion but rather to challenge ideas perceived by the government as dangerous and to reject individuals and groups associated with those ideas. According to the Brown government’s definition, a community is resilient if it can effectively

‘reject the ideology of violent extremism’ and ‘isolate apologists for terrorism’.309

This was made worse by CONTEST 2, which expanded the scope of Prevent to include non-violent ideas that ‘reject and undermine our shared values and jeopardise community cohesion’.310 CONTEST 2 was heavily criticised for branding

306 As per Objective 4 in the 2008 Prevent strategy: see Prevent Strategy 2008, above n 179, 6, 31-35.

307 Pathfinder Case Studies, above n 212, 11.

308 See, eg, Prevent Strategy 2011, above n 4, 29.

309 Prevent Strategy 2008, above n 179, 31.

310 CONTEST 2, above n 180, 13.

138 thousands more British Muslims with legitimate political and religious views as

extremists.311 According to the Institute of Race Relations, Muslim communities in the UK perceived this expansion of Prevent as ‘a one-sided demand to assimilate to ill-defined values of Britishness’.312

The Coalition government has since removed resilience-building measures from the scope of Prevent, but the current Prevent strategy is similarly designed to challenge extremist ideas (including non-violent extremist ideas) that the Home

Office believes could influence more individuals to become terrorists. In particular,

Channel continues to reshape the views of individuals who show signs of becoming

involved in extremism. As described above, the list of indicators relied upon by

Channel coordinators to determine which individuals are at risk of radicalisation

includes the following:

• Spending increasing time in the company of other suspected extremists;

• Changing their style of dress or personal appearance to accord with the group;

• Their day-to-day behaviour becoming increasingly centred around an extremist

ideology, group or cause;

• Possession of material or symbols associated with an extremist cause;

• Communications with others that suggest identification with a

group/cause/ideology; and

• Clearly identifying another group as threatening what they stand for and blaming

that group for all social or political ills.313

311 Kundnani, above n 183, 22; CLG Committee, above n 183, Ev 102; Dodd, ‘Anti-terror code “would alienate most Muslims”’, above n 187.

312 CLG Committee, above n 183, Ev 102 [7].

313 Channel, above n 207, 12.

139

Given that the scope of Prevent extends to non-violent ideas, this list clearly demonstrates the capacity for soft power responses to terrorism to limit political and religious choice. The consequences for individuals are significantly less severe than imprisonment or TPIMs, but Channel nonetheless reduces the capacity of individuals to make free choices about which political and religious causes to support, which behaviours to adopt in accordance with those ideas, which organisations to associate with, and which ideas and opinions to express in public spaces. As with the speech offences in the TA2006, Channel interventions do not only lead to consequences for individuals who engage in certain conduct or express certain views; the mere existence of the program acts as a general deterrent to the rest of the population against holding and expressing ideas that might be deemed ‘extremist’.

The same can be said of Prevent work under Objective 3, in which employees

of public institutions are trained and encouraged to identify possible candidates for

Channel.314 This clearly reduces the capacity for individuals to freely choose their political and religious views and express them in public spaces. The extension of

Prevent into universities, for example, has created sufficient concern for Universities

UK to publish a guidance document about restrictions on free speech on campus.315

314 Prevent Strategy 2011, above n 4, 63-94.

315 Universities UK, Freedom of Speech on Campus: Rights and Responsibilities in UK Universities

(London: Universities UK, February 2011). Both staff and students have been concerned with the expansion of Prevent work into universities. Staff of the University and College Union, for example,

‘have made it quite clear that they do not wish to police their students or engage in any activity that might erode the trust between them and students’: Ryan Gallagher and Rajeev Syal, ‘University staff asked to inform on “vulnerable” Muslim students’, The Guardian (London), 30 August 2011.

Universities UK was generally in support of Prevent work on campus, but it made a similar point in

140 The fact that individuals face different consequences under counter-terrorism

laws and the Prevent strategy raises an important point about the difference between

autonomy and freedom. As explained in Chapter One, freedom is the instrumental

capacity to act in certain ways (e.g. to move wherever one chooses), whereas

autonomy is the mental capacity to self-critically determine one’s own desires and

preferences.316 There is no question that the UK’s hard power legal responses to terrorism reduce freedom to a greater extent than soft power responses to terrorism.

There are no soft power responses to terrorism in Prevent that could limit an individual’s freedom to the same extent as imprisonment or a TPIM notice. An individual who is imprisoned under s 1 of the TA2006 for glorifying terrorism, for example, has definitely had his or her freedom impaired to a higher degree than an individual who receives a Channel support package for expressing extremist ideas.

The question of autonomy, however, is a different matter. The UK’s experience with counter-terrorism suggests that hard and soft power both significantly limit political and religious choice. Indeed, soft power responses to terrorism are more explicit in this regard: the speech offences in the TA2006 may prescribe severe punishments where a person voices certain ideas, but they do not require the person in any way to change those ideas. The overarching goal of Prevent, on the other hand, is to influence the political and religious views of British communities for the purpose

evidence to the Home Affairs Committee, arguing that ‘[t]he role of universities cannot and should not

extend into the monitoring of the private lives of their students’: Home Affairs Committee, above n 246,

Ev 111. The Federation of Student Islamic Societies expressed concern to the Home Affairs Committee

that Prevent work was impacting negatively on the freedom of expression: Home Affairs Committee,

above n 246, Ev 104.

316 See Chapter One, Part I(B).

141 of preventing terrorism. Attempts to limit political and religious choice under Prevent are also more insidious because they are framed through a policy discourse that creates the appearance of a benevolent, nurturing counter-terrorism strategy. Whereas the UK’s counter-terrorism laws at least state clearly that individuals will be punished for certain speech acts, attempts to limit free choice under the Prevent strategy are obscured through the positive connotations of language such as ‘building resilient communities’ and ‘supporting vulnerable individuals’.317

C Early Interventions

A third way in which hard power legal responses to terrorism reduce autonomy is

through the use of ‘pre-crime’ measures. The notion of pre-crime describes a temporal

shift in criminal justice, and counter-terrorism in particular, in which the goal of

anticipating and forestalling crimes ‘competes with and even takes precedence over

responding to wrongs done’.318 Pre-crime measures are those that permit substantial coercive state action on the basis of predictions about what a person is likely to do at some unspecified future time – as opposed to what they have done in the past. As such, pre-crime measures deny individuals a window of moral opportunity in which they are free to consider committing a crime before choosing to remain innocent.319

317 See, eg, Prevent Strategy 2008, above n 180, 27-35; Prevent Strategy 2011, above n 4, 55-62.

318 Zedner, ‘Pre-Crime and Post-Criminology?’, above n 40, 262.

319 Zedner, ‘Preventive Justice or Pre-Punishment?’, above n 40, 197. This reflected a dramatic shift in criminal justice because states began to criminalise conduct prior to the traditional inchoate offences of attempt and conspiracy: Zedner, ‘Fixing the Future?’, above n 40, 50; McCulloch and Pickering, above n 40, 633. Under the ordinary law of attempt, a person would ordinarily be held liable if they intended to commit a criminal offence and did some act that was ‘more than merely preparatory’ to committing

142 In other words, the UK’s hard power responses to terrorism have been designed primarily to stop terrorist acts from occurring rather than punish individuals for committing them. The clearest evidence of this is the absence of an offence for committing a terrorist act; instead, the UK’s counter-terrorism laws criminalise a range of prior and related conduct such as receiving training for terrorism.320 This is understandable as a mechanism to protect the public from serious harm: certainly it is preferable to stop a bomb exploding in a crowded street than to let it explode and later prosecute whoever was responsible for planning the attack. But this comes at a cost, as individuals are exposed to lengthy prison sentences for conduct that causes no direct harm to others and reveals no intention to commit a terrorist act.321 Individuals are also exposed to intrusive searches, special investigative powers and other severe

that offence: Criminal Attempts Act 1981 (UK) c 47, s 1(1). In the case of murder, for example, a person might purchase a gun and learn how to shoot it for the purpose of killing someone, but this would not constitute attempted murder. The person would have to do something more significant, like loading the weapon and waiting in a person’s driveway with the intent to kill them when they arrived home. By contrast, the TA2000 and TA2006 criminalise conduct that is merely preparatory to committing an act of terrorism, such as possessing terrorist documents and receiving terrorist training.

Indeed, the clearest example of this is the general offence for ‘preparation of terrorist acts’: Terrorism

Act 2006 (UK) c 11, s 5. For an explanation of the law of attempt, see Larry Alexander and Kimberley

Kessler Ferzan, ‘Risk and Inchoate Crimes: Retribution or Prevention?’ in GR Sullivan and Ian Dennis

(eds), Seeking Security: Pre-Empting the Commission of Criminal Harms (Hart, 2012) 103-120, 105-

106.

320 Terrorism Act 2006 (UK) c 11, ss 2, 6.

321 Such as disseminating terrorist publications and possessing terrorist documents: Terrorism Act 2006

(UK) c 11, s 2; Terrorism Act 2000 (UK) c 11, s 57. A clear example of this can be seen in R v Gul

[2012] EWCA Crim 280, where a UK law student received five years’ imprisonment for uploading videos onto YouTube that praised insurgent attacks in the Middle East.

143 restrictions on liberty (such as TPIM notices) based on tests of reasonable suspicion

and belief as to future conduct.322

As Zedner notes, these predictions about future behaviour represent ‘a failure

to respect the moral autonomy of the individual required of a liberal state’.323 Pre- crime measures fail to treat individuals as autonomous moral agents capable of choosing not to commit an act of terrorism. Pre-crime measures ascribe future behaviours to individuals and impose severe restrictions on liberty on that basis, thereby denying individuals the capacity to choose a different course of action.

Soft power responses to terrorism in Prevent also fail to treat individuals as autonomous moral agents capable of choosing not to commit acts of terrorism. This can be seen most clearly in Channel, in which the police and local authorities intervene with counselling and other support services before individuals showing signs of radicalisation have had the opportunity to explore and reach their own conclusions about controversial ideas. Channel interventions similarly reduce autonomy by denying individuals a window of moral opportunity: in this case, a window in which individuals are free to adopt extremist views and then later change those views, or indeed to maintain them without ever acting on them. If there were a proven connection between having extremist views and later committing an act of terrorism, the government’s case for intervening in such cases would be much stronger. In the absence of any such connection,324 the UK government is reducing the

322 See, eg, Terrorist Asset-Freezing etc Act 2010 (UK) c 38, s 2(1); Terrorism Prevention and

Investigation Measures Act 2011 (UK) c 23, ss 2, 3(1), 3(3).

323 Zedner, ‘Preventive Justice or Pre-Punishment?’, above n 40, 197.

324 See Rachel Briggs, ‘Community Engagement for Counterterrorism: Lessons from the United

Kingdom’ (2010) 86(4) International Affairs 971, 975.

144 capacity for individuals to freely determine their political and religious views with no

demonstrable benefit to counter-terrorism.

The experience of Ed Husain, former Islamist radical and now head of the

anti-extremist Quilliam foundation, is a case in point.325 Husain was able to embrace

the teachings of radical Islam and later reject them of his own accord without ever

committing a terrorist act. Letting individuals explore extremist ideas in this way

might be a risk that the UK government is not willing to take – but by intervening

before individuals have had the opportunity to make such choices for themselves, the

UK government is nonetheless significantly reducing their autonomy. The

government is treating individuals as incapable of determining of their own accord

whether particular bodies of political and religious thought should be rejected.

Soft power responses to terrorism may be even more dangerous than hard

power in this regard because they disproportionately impact on vulnerable Muslim

youth,326 including very young children. While the UK’s pre-crime counter-terrorism laws are a significant problem, they are at least designed to be used against responsible adults suspected of committing terrorism offences or for the immediate purpose of preventing a terrorist act. Soft power responses in Prevent, on the other hand, reveal a dangerously paternalistic approach in which dependent and vulnerable youth are exposed to stigmatising counter-terrorism interventions. Between April

2007 and March 2013, Channel received a total of 930 referrals for children under 18 years of age.327 Of these, some 200 children – including many as young as 12 years

325 See Ed Husain, The Islamist (Penguin, 2007).

326 See Prevent Strategy 2011, above n 4, 59.

327 ACPO, National Channel Referral Figures, above n 206.

145 old – were identified as vulnerable to radicalisation.328 In one case, a three-year-old

toddler was even identified as a security risk.329 The targeting of young people can

also be seen in the local authority projects developed by the Coalition government,

which have expanded the operation of Prevent into general child protection policy.330

An even more striking example of how Prevent targets children can be seen in a guidance document published by the Humberside Police Department in North-West

England.331 The document – entitled ‘Guidance for Working with Children who are

Vulnerable to the Messages of Terrorism and Extremism’ – set out a list of indicators so that professionals who work with children can identify which are vulnerable to radicalisation. In an extraordinary conflation of radicalisation and normal childhood difficulties, the document explained that protecting children from radicalisation was

‘no different from safeguarding them from other forms of harm’.332 It explained that many of the relevant indicators ‘are the same as those you are already familiar with’, including family tensions, a sense of isolation, recent overseas migration, distance

328 Mark Hughes, ‘Police identify 200 children as potential terrorists’, The Independent (London), 28

March 2009; Aldan Jones, ‘Police scheme identifies 180 children as potential Islamic extremists’, The

Guardian (London), 28 March 2009;

329 Tom Whitehead, ‘Hundreds of children identified as extremism risk’, The Telegraph (London), 22

July 2013.

330 CONTEST Annual Report 2013, above n 217, 21 [2.45].

331 Humberside Police and North Lincolnshire’s Local Safeguarding Children Board, Guidance for

Working with Children and Young People Who Are Vulnerable to the Messages of Terrorism and

Extremism (December 2012).

332 Ibid 6.

146 from cultural heritage, experience of racism and discrimination, feelings of failure,

identify crisis, low self-esteem, unmet aspirations and perceptions of injustice.333

In a more considered moment, the guidance document noted that children

displaying these signs of vulnerability ‘are not necessarily showing signs of being

radicalised’.334 Even so, its approach clearly reveals the dangerous conflation that the

Prevent strategy is encouraging between counter-terrorism and child protection. If the above list of indicators were applied strictly, Channel could plausibly be used to target any British teenager with a distrust of authority and an underdeveloped sense of self. Soft power responses to terrorism in Prevent do not only reduce the capacity for responsible adults to freely determine their ideas and opinions about politics and religion; they also reduce the capacity for dependent and vulnerable youth to learn by themselves how to cope with many of the ordinary problems of childhood.

This is a particularly pressing issue given the recent public feud between the

Education Secretary (Michael Gove) and the Home Secretary (Theresa May), who have criticised each other for failing to sufficiently address the influence of extremists in British schools.335 The Education Secretary favours a tougher and more targeted approach which combats terrorist ideology directly, whereas the Home Secretary favours a more tolerant and inclusive approach which favours integration over intervention.336 The above analysis suggests that the government should be wary of

333 Ibid 6-7.

334 Ibid 6.

335 See text to above n 225.

336 See Alasdair Palmer, ‘We can’t avoid the threat of Islamism’, The Guardian (London), 8 June 2014;

Alan Travis, ‘Gove v May reflects a long-running debate over counter-terrorism strategy’, The

Guardian (London), 5 June 2014.

147 any further expansion of Prevent in schools, and that it should favour a more inclusive, community-based approach over targeted interventions. The influence of extremists in British schools may pose a serious risk, but the government should also consider the impact that its responses will have on the autonomy of British youth.

D Conclusions

The UK’s hard power legal responses to terrorism have a significant detrimental impact on autonomy. This is clear in three respects. First, the disproportionate impact of counter-terrorism powers has contributed to an ongoing sense of alienation within

Britain’s Muslim communities. This affects the capacity of those communities to reflect rationally upon and determine the course of their own lives free of the fear of discrimination and state intervention. Secondly, the UK’s counter-terrorism laws reduce the capacity for individuals to freely determine their own views about politically and religiously motivated conduct. Thirdly, by allowing coercive state interventions on the basis of predictions about future behaviour, pre-crime legal measures remove a window of moral opportunity in which individuals can choose to remain innocent.

There is no evidence that soft power responses to terrorism are any more compatible with autonomy in these three respects. Through community projects and funding allocations, the Prevent strategy has reinforced prejudiced stereotypes of

Muslim communities as inherently suspicious. By challenging interpretations of Islam that are not consistent with Western ideals, the Prevent strategy reduces the capacity for individuals to freely determine their own views about politics and religion. And by intervening before individuals have an opportunity to form their own opinions about

148 extremist ideas, the Prevent strategy fails to treat individuals as autonomous moral agents capable of choosing not to become involved in terrorism.

Indeed, in these last two respects soft power responses to terrorism appear more dangerous than hard power. In contrast to the UK’s counter-terrorism laws, the

Prevent strategy is explicitly designed to change individuals’ views on politics and religion, and early interventions through the Channel program are frequently directed at vulnerable and dependent youth. This shows clearly that the second limb of smart power thinking does not accurately describe the UK’s experience of preventing domestic terrorism. It also shows the importance of distinguishing between freedom and autonomy when conceiving of the moral benefits of soft power. In this context, hard power certainly impacts on freedom to a higher degree than soft power, whereas hard and soft power both significantly reduce autonomy.

V ARE HARD POWER AND SOFT POWER COMPLEMENTARY?

The third component of smart power thinking is that hard power and soft power are complementary. As explained in Chapter One, Nye is aware that hard and soft power can ‘sometimes interfere with each other’,337 but he nonetheless suggests that the two

approaches work effectively in parallel.338 He defines smart power as ‘the ability to combine hard and soft power into effective strategies in varying contexts’.339 This

comprises three more specific ideas: that hard and soft power are compatible, that

337 Nye, Soft Power, above n 226, 25.

338 See ibid, xiii, 25, 147; Nye, The Future of Power, above n 226, xiii, xiv.

339 Nye, The Future of Power, above n 226, xiv.

149 combining hard and soft power is effective, and that it is possible for governments to

reduce their existing reliance on hard power to create a smart power strategy.340

A Compatibility of Hard Power and Soft Power

If all the various problems with the UK’s Prevent strategy can be distilled into one message, it is that hard and soft power do not sit comfortably together in the same counter-terrorism strategy. It seems logical and intuitive that combining hard and soft power would be preferable to relying on only one or the other approach, but the two approaches do not straightforwardly work in tandem. Rather, by combining hard and soft power within the same strategy, the UK government created tensions and inconsistencies which compromised the success of its counter-terrorism efforts.

Contributors to the CLG Committee’s inquiry gave few examples of how

Prevent had operated successfully in conjunction with counter-terrorism laws. The one repeated example given in evidence was the case of Andrew Ibrahim, a 20-year old student from Bristol who planned to blow up a busy shopping centre with a homemade bomb.341 Ibrahim’s plans were thwarted when leaders of his mosque

spotted burn marks on his hands and arms and reported him to the police. The leaders

of his mosque had attended an awareness workshop on Prevent.342 Ibrahim was later

sentenced to a minimum 10 years’ imprisonment for preparing terrorist acts.343 This

340 See Chapter One, Part I(C).

341 See CLG Committee, above n 183, Ev 20, Ev 67.

342 Prevent Strategy 2011, above n 4, 56 [9.2].

343 See BBC News (online), ‘Jail for “suicide vest” student’, 17 July 2009, available at

150 provides a good example of how hard and soft power approaches to counter-terrorism

can work effectively in tandem, although it is not clear that there was any necessary

link between the mosque leaders attending the workshop and their decision to alert the

authorities.344 Most responsible citizens would not likely need a workshop to tell them

that they should notify police if they suspect a person is making homemade bombs.

Even if hard and soft power responses to terrorism do not directly reinforce

each other, they could still be considered complementary so long as they do not

interfere with each other. However, Labour’s experience with Prevent demonstrates that the mere combination of hard and soft power can undermine the success of a government’s counter-terrorism efforts. By creating a close association between hard and soft power in CONTEST, such as by embedding police officers within local services, the UK government created damaging suspicions that Prevent work in communities was simply a pretext for ‘spying’ on potential terrorists.345 According to

Husband and Alam, ‘there was every reason to anticipate interference between these policies when implemented by the same authority within their local communities’.346

More specifically, Labour’s experience with Prevent showed that hard power

responses to terrorism can directly undermine soft power responses to terrorism by

generating resentment in communities and by stifling legitimate debate and discussion

about terrorism. As one witness to the CLG Committee explained, the police will find

344 John Denham, then Secretary of State for Communities and Local Government, conceded this in evidence to the Committee: CLG Committee, above n 183, Ev 67.

345 Ibid 11, 52.

346 Charles Husband and Yunis Alam, Social Cohesion and Counter-Terrorism: A Policy

Contradiction? (Policy Press, 2011) 150. See generally 150-152.

151 it difficult to forge meaningful relationships with Muslim communities while they simultaneously subject those communities to controversial legal powers:

The issue around … counter-terrorism legislation, certainly section 44, which has

been regarded as a blunt instrument by some of the chief constables up and down the

country, and more importantly schedule 7, the powers to stop people at ports of entry,

in and out of the country, has caused enormous problems within my community. The

very people whose hearts and minds we are trying to win over are the imams and

senior leaders of the community; if they are subject to these searches at airports

continuously, day-in day-out then that itself is causing a very negative effect.347

Of particular concern are the speech offences in the TA2006.348 It is incongruous for a government to encourage an open dialogue about extremism and simultaneously to retain legislation that severely restricts the capacity of individuals to express their views about politically and religiously motivated conduct. Members of the House of

Lords had warned of the dangers of this approach before the TA2006 was passed, suggesting that the speech offences would compromise the crucial battle for ‘hearts and minds’ and potentially contribute to radicalisation.349 Roach has similarly argued that the speech offences will prove counter-productive if they create a view that the

UK government does not care about Muslim grievances.350

347 CLG Committee, above n 183, Ev 22.

348 Terrorism Act 2006 (UK) c 11, ss 1-2.

349 See United Kingdom, Parliamentary Debates, House of Lords, 21 November 2005, vol 675, cols

1403 (Lord Thomas), 1445 (Baroness Kennedy), 1457 (Lord Judd), 1464 (Lord Griffiths).

350 Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press) 300.

152 The Coalition government has made some notable improvements by reducing

the overall severity of Labour’s counter-terrorism laws. By reducing the limit on pre-

charge detention from 28 to 14 days, replacing s 44 with a more tightly defined stop-

and-search power, replacing control orders with TPIM notices, and placing important

limits on the sch 7 port and border controls, the Coalition government has displayed a

genuine willingness to ‘roll back’ the most controversial aspects of Labour’s counter-

terrorism laws.351 These amendments suggest that soft power responses to terrorism under the current Prevent strategy will not be so significantly tainted by their close relationship with the hard power aspects of Pursue. By reducing the overall severity of Labour’s counter-terrorism laws, the Coalition government has created the potential for a better working relationship between hard and soft power.

At the same time, the Coalition government has certainly been ‘cautious’ in its amendments.352 In particular, there are notable similarities between TPIMs and

control orders,353 and the government retains the power to implement some of

Labour’s more controversial powers in urgent circumstances.354 The standards for

imposing asset-freezing measures, stop-and-search powers and the more intrusive

351 Parliament of United Kingdom, Hansard, House of Commons, 1 March 2011, vol 524, col 205

(Theresa May).

352 Anderson, The Terrorism Acts in 2012, above n 8, 12.

353 See discussion above in Part I(G). See generally United Kingdom, Parliamentary Debates, House of

Commons, 7 June 2011, vol 529, cols 71 (Pete Wishart), 74, 76 (Yvette Cooper), 109 (Jeremy Corbyn),

124 (Bob Stewart), 137 (Paul Goggins); Liberty, above n 117.

354 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23, s 26; Protection of

Freedoms Act 2012 (UK) c 9, s 58; Detention of Terrorism Suspects (Temporary Extensions) Bills (Cm

8018, February 2011).

153 aspects of sch 7 could arguably be improved further.355 Many other problematic

aspects of Labour’s counter-terrorism laws – such as the broad definition of terrorism,

and the preparatory offences in the TA2000 and TA2006 – have not been amended.

Overall, much of Labour’s hard power apparatus remains. In one key respect – by

allowing closed material procedures in all civil appeal proceedings where a party

would be required to expose sensitive national security material – the Coalition

government has even expanded Labour’s controversial approach.356

There is still, therefore, a significant risk that hard power responses to

terrorism in Pursue will undermine soft power responses in Prevent. This is supported

by evidence to the Home Affairs Committee, which suggested that counter-terrorism

laws and CONTEST as a whole were still contributing to a sense of grievance among

Britain’s Muslim populations.357 Indeed, the Coalition government has acknowledged the ongoing risk that its counter-terrorism laws may contribute to radicalisation.358

355 Joint Committee on Human Rights, Parliament of the United Kingdom, Legislative Scrutiny:

Terrorist Asset-Freezing etc. Bill (Preliminary Report) – Third Report of Session 2010-11 (HL Paper

41, 22 October 2010) 10 [1.16]; Joint Committee on Human Rights, Parliament of United Kingdom,

Terrorism Act 2000 (Remedial) Order 2011: Stop and Search without Reasonable Suspicion (HL Paper

155, 15 June 2011), 28 [104]; Joint Committee on Human Rights, Parliament of United Kingdom,

Legislative Scrutiny: Anti-Social Behaviour, Crime and Policing Bill – Fourth Report of Session 2013-

14 (October 2013, HL Paper 56) 5.

356 Justice and Security Act 2013 (UK) c 18, s 6(4).

357 Home Affairs Committee, above n 246, 10.

358 Prevent Strategy 2011, above n 4, 26-27.

154 B Effectiveness of Combining Hard Power and Soft Power

It is particularly difficult in the context of UK counter-terrorism to assess Nye’s claim

that combining hard and soft power is effective. This is because the success of soft

power responses to terrorism is notoriously difficult to quantify. Soft power responses

to terrorism are either directed broadly at communities, in which case it is difficult to

assess whether any individuals have changed their political and religious views as a

result – or else they are directed at individuals showing early signs of radicalisation,

in which case it is difficult to assess whether those individuals would later have

committed a terrorist act. Many contributors to the CLG Committee inquiry noted

these difficulties in assessing whether Prevent was reducing terrorism.359 One contributor expressed concern that the government was injecting significant funds into a ‘very underdeveloped science’:

I think the measuring of impact is a very underdeveloped science in this arena, so I

am not entirely aware of how one measures whether a particular person has been de-

radicalised or kept away from – or whatever – here we are, spending 50, 60, 70

millions of pounds on a basis of measurement that I do not think anybody is very

clear about.360

The CLG Committee pressed its witnesses to provide direct evidence that Prevent had

reduced al-Qaeda-inspired terrorism. The most detailed response came from Charles

Farr, Director-General of OSCT, who responded by saying that 200 individuals were

359 See CLG Committee, above n 183, Ev 4, Ev 21, Ev 67, Ev 73.

360 Ibid Ev 21 (Canon Guy Wilkinson).

155 on a Channel support program.361 The Committee Chair contended that this was a

measure of effort invested but hardly an accurate measure of success:

Do you appreciate that is a bit of a circular argument? You are essentially suggesting

that because you have identified those individuals and they are on a support

programme, and presumably none of them have actually moved on to violent

terrorism, that demonstrates the programme is working, but you cannot possibly

know that any of them would have indulged in violent terrorism anyway.362

A similar problem also arises with hard power responses to terrorism, because the

preventive nature of counter-terrorism laws means that it is impossible to know for

certain that an individual would have chosen to follow through with their intended

action. For example, if an individual is imprisoned for preparing a terrorist act, it is

possible that the individual might have chosen not to follow through with the final

attack. This is especially problematic with offences such as possessing terrorist

documents or disseminating terrorist publications, where there is no requirement that

the individual is even contemplating a terrorist act.363 At least, however, there are some useful metrics available for assessing the extent to which counter-terrorism laws have reduced terrorist activity – such as data on the numbers of arrests for terrorism offences and successful prosecutions.364 These metrics might not be perfect, but it can

be said with some degree of certainty that there has been a reduction in terrorist

361 Ibid Ev 72-73.

362 Ibid Ev 73.

363 Terrorism Act 2006 (UK) c 11, ss 1 and 2.

364 See, eg, Home Office, Operation of Police Powers Under the Terrorism Act 2000 and Subsequent

Legislation, above n 26.

156 activity if a person who was receiving training for terrorism or preparing a terrorist

act is prevented from doing so. In the case of soft power responses to terrorism, the

connection to a future terrorist attack is even more remote. It is difficult to see how a

government could ever determine that an intervention for a troubled youth or a

community discussion group about Islam contributed to a reduction in terrorist

activity. As long as this is the case, it will be difficult to quantify the extent to which

combining hard and soft power is an effective strategy for preventing terrorism.

C Capacity to Rebalance Hard Power Strategy

A final problem relates to whether it is possible for a government to readjust its existing reliance on hard power to achieve a smart power strategy. The Coalition government introduced some important amendments to reduce the scope and impact of Labour’s counter-terrorism laws, and these provide support to this aspect of Nye’s theory. However, the evident caution in the Coalition government’s approach suggests that there are limits to which a government can achieve a smart power strategy by reducing the severity of its hard power responses to terrorism.

According to the Coalition government – and it is difficult to challenge this claim without knowing the intelligence on which it is based – the police and security services still need exceptional counter-terrorism measures to forestall immediate threats to security. When introducing the TPIMs Bill into Parliament, for example,

Home Secretary Theresa May emphasised that TPIM notices are still necessary because there are ‘a small number of people who pose a real threat to our citizens, but

157 whom we cannot successfully prosecute or deport’.365 She recognised that TPIM notices were ‘a short-term tool to protect the public rather than a long-term solution’, but at the same time she emphasised that ‘no responsible Government could allow dangerous individuals to go freely about their terrorist activities’.366 This explains why TPIM notices resemble control orders to a significant degree, despite the

Coalition government’s apparent willingness to amend Labour’s counter-terrorism laws. The Coalition government does not want to reduce the severity of its hard power responses to terrorism and expose its citizens to a greater risk of serious harm.

This gives significant reason to doubt Nye’s suggestion that governments can

‘balance’ hard and soft power by ‘adjusting tactics so that they reinforce, rather than undercut, each other’.367 There are clear practical and political limits to this process. If

a government reduces its reliance on hard power to achieve a better balance between

hard and soft power, it may leave itself and its citizens open to attack.368 Even if the

police and security services admitted that existing legal measures (such as TPIMs)

were not strictly necessary for the immediate future,369 it would take a courageous government to repeal those laws and risk a terrorist attack on its watch. As long as

365 Parliament of United Kingdom, Hansard, House of Commons, 7 June 2011, vol 529, col 69

(Theresa May).

366 Parliament of United Kingdom, Hansard, House of Commons, 7 June 2011, vol 539, cols 69, 72

(Theresa May).

367 Nye, The Future of Power, above n 226, 225.

368 This is what Gallarotti refers to as the problem of soft disempowerment: governments can only reduce their reliance on hard power so far, or else they will render themselves a ‘paper tiger’ and leave themselves open to attack by aggressors: Gallarotti, above n 259, 38.

369 As now could be argued on the basis that no TPIM notices are currently in force: Anderson

Terrorism Prevention and Investigation Measures in 2013, above n 114, 2.

158 there remains a serious threat of terrorism in the UK, it is unlikely that the

government will further reduce its reliance on hard power.

VI CONCLUSIONS

Smart power thinking comprises three simple, intuitive ideas that are pervasive and

influential. First, hard and soft power are viewed as two distinct methods for

influencing behaviour. Secondly, soft power is viewed as morally preferable to hard

power. Thirdly, hard and soft power are viewed as complementary. This chapter has

examined the UK’s hard and soft power responses to terrorism in order to test these three ideas. By testing smart power thinking in this way, it becomes clear that these three ideas in the context of UK counter-terrorism are neither simple nor intuitive.

Indeed, the UK experience provides overwhelming evidence contrary to the three core components of smart power thinking. The elegant simplicity of these three ideas might make them attractive to policymakers, but to rely on smart power thinking is to obscure some of the most significant issues involved in domestic counter-terrorism.

With regard to the first component of smart power thinking, the UK’s experience with domestic counter-terrorism suggests that hard and soft power are not distinct but inherently intertwined in complex and significant ways. There are many significant examples in UK counter-terrorism which cannot neatly be described as either a hard or soft power response – such as police officers delivering community cohesion projects, counter-radicalisation programs in prisons, and non-punitive interventions for potentially illegal behaviour. In this respect, the Prevent strategy did not signal the development of a distinct and separate soft power approach to counter- terrorism. Rather, it signalled the development of hybrid counter-terrorism practices

159 in which hard and soft power have converged to the point where it is both

meaningless and too difficult to separate them. These hybrid hard and soft power

measures pose a significant practical issue because they have undermined the success

of the UK government’s soft power responses to terrorism; communities are not sure

whether the police and local authorities are trying to help them or spy on them.

With regard to the second component of smart power thinking, the UK’s

experience with the Prevent strategy suggests that soft power is no more consistent

with autonomy than hard power. Like hard power responses to terrorism, soft power

responses to terrorism can reinforce prejudiced stereotypes of Muslim communities as

inherently suspicious; they can limit the capacity for individuals to freely choose their

own views about politics and religion; and they can remove a window of moral

opportunity in which individuals are free to choose not to become involved in

terrorism. There may be a basic truth that hard power impacts on freedom to a higher

degree, but in failing to draw this important distinction Nye gives an incomplete

account of the dangers that soft power poses to autonomy. The particular danger in

this context is that soft power responses in Prevent impact on autonomy in similar

ways to the UK’s counter-terrorism laws, but these similarities are obscured through

the positive connotations of improving ‘resilience’ and supporting the ‘vulnerable’.

With regard to the third component of smart power thinking, the UK’s

experience with domestic counter-terrorism provides little evidence that hard and soft

power are complementary. First, there is a significant and ongoing risk that

problematic counter-terrorism laws – including the broad definition of terrorism, preparatory offences, and TPIM notices – will undermine any soft power, community- based approach that supplements them. This is because broadly drafted counter- terrorism laws have the potential to stifle legitimate discussion about extremism and

160 perhaps even contribute to radicalisation.370 It is particularly incongruous for the UK

government to encourage an open dialogue and discussion about Islamist extremism

while it retains broadly drafted offences for encouraging and glorifying terrorism.371

Secondly, it is difficult to assess whether combining hard and soft power has been an effective strategy for preventing domestic terrorism because it is extremely difficult to quantify whether soft power responses have contributed to a reduction in terrorist activity. Lastly, the evident caution exercised by the Coalition government in amending Labour’s counter-terrorism laws suggests there are both practical limits and political costs to achieving a balanced smart power strategy in domestic counter- terrorism.

To some extent, the UK government’s failure to achieve a balanced and effective smart power strategy is the result of poor policy choices. For example, the

Brown government’s decision to allocate Prevent funds on a ‘per-Muslim’ basis was

clearly prejudicial and created problems that should have been avoided.372 Other

problems, however, appear more difficult to resolve and may be intractable. In

particular, the UK experience suggests there are three limits to developing a smart

power strategy that conforms to Nye’s theory. These three areas will likely pose

ongoing challenges for the UK government in its efforts to prevent domestic

terrorism, and they should receive focused attention to the extent that it is possible to

resolve them. This is particularly crucial given the current danger that radicalised UK

370 See United Kingdom, Parliamentary Debates, House of Lords, 21 November 2005, vol 675, cols

1403 (Lord Thomas), 1445 (Baroness Kennedy), 1457 (Lord Judd), 1464 (Lord Griffiths); Roach,

above n 349, 300; Prevent Strategy 2011, above n 4, 26-27.

371 Terrorism Act 2006 (UK) c 11, ss 1 and 2.

372 See CLG Committee, above n 183, 50, Ev 101; Kundnani, above n 183, 12-13.

161 citizens returning from the conflicts in Syria and Iraq will become involved in

domestic terrorism.373

First, the Coalition government has been reluctant to separate hard and soft power completely because soft power contributes to the validity and legitimacy of counter-terrorism policing and CONTEST as a whole. It is therefore unlikely that UK counter-terrorism policy will ever reflect a clear distinction between hard and soft power. Secondly, as long as Islamist extremism represents the greatest threat to national security, it will be extremely difficult for the UK government to devise soft power responses to terrorism that do not impact disproportionately on Muslim communities. It therefore seems likely that Prevent will continue to undermine autonomy by reinforcing prejudiced stereotypes of a suspicious Muslim ‘other’.

Thirdly, the Coalition government is not likely to reduce the severity of its counter-

terrorism laws further because it does not want to expose its citizens to a greater risk

of harm. These three ongoing issues – the need for hard power to be moderated by a

close connection to soft power, the capacity for soft power to reinforce prejudiced

stereotypes of a racialised ‘other’, and the practical and political limits in reducing the

severity of hard power – suggest that an effective smart power strategy in domestic

counter-terrorism may be more of an ideal than a potential reality.

373 See Press Association, ‘UK will count cost of Islamic extremism for “many years”, says Cressida

Dick’, The Guardian (London), 22 June 2014; Editorial, ‘The Guardian view on tackling the radicalisation of Britons fighting abroad’, The Guardian (London), 23 June 2014.

162 3

SMART POWER THINKING IN AUSTRALIAN COUNTER-

TERRORISM

Introduction

Effective mitigation of terrorist attacks involves the combination of an appropriate

security response with broader strategies to enhance social cohesion and resilience.1

- Former Prime Minister Kevin Rudd, National Security Statement to the

Australian Parliament, 4 December 2008.

Australia did not have any national counter-terrorism laws when the Twin Towers fell on 9/11, but it has certainly made up for it since. The Australian government’s approach to counter-terrorism has been described as one of ‘hyper-legislation’,2 with

1 Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008, 12552 (Kevin

Rudd).

2 Kent Roach, The 9/11 Effect (Cambridge University Press, 2011) 309.

163 a total of 61 counter-terrorism laws being enacted since 2002.3 The vast majority of

these laws were passed by the conservative Howard government between 2002 and

2007, at an average rate of one new law every seven weeks.4 This is an extraordinary figure considering that Australia has not experienced a serious attack by Islamist terrorists,5 although Australia has certainly felt the impact of contemporary terrorism,

with 88 Australians dying in the Bali bombings and London a second home to many.

Since the Rudd Labor government was elected to office in late 2007, this

extraordinary legislative pace has slowed,6 but the vast majority of the Howard government’s legal responses to terrorism have become permanent features of domestic law. These counter-terrorism laws include a range of hard power responses to terrorism, including criminal offences, control orders and special police powers.

In contrast to the UK, where the Prevent strategy formed a core element of the

CONTEST strategy from 2006, Australia’s soft power responses to terrorism have developed incrementally and many have operated within a wider multiculturalism and social inclusion agenda. Nonetheless, as the above quotation from the National

Security Statement shows, the Australian government has equally invoked a smart

3 George Williams, ‘The Legal Legacy of the War on Terror’ (2013) 12 Macquarie Law Journal 3, 7;

George Williams, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35 Melbourne University Law

Review 1136, 1144.

4 Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 3, 1145.

5 The bombing of the Hilton Hotel in Sydney on 13 February 1978, which killed three people and

wounded seven more, is considered Australia’s most serious terrorist attack. The bombing remains

unsolved but the three main suspects were linked to Ananda Marga, a religious sect based in India: see

Michael Inman and Nino Bucci, ‘“Hilton bomb” sect in legal battle over $20m empire’, Sydney

Morning Herald, 23 September 2013.

6 Ibid.

164 power logic in which hard power legal responses to terrorism are supplemented with a

soft power, community-based response. Recently, the federal Attorney-General’s

Department has developed the ‘Building Community Resilience’ program, which

funds a range of community projects for countering violent extremism.7

This chapter tests the three components of smart power thinking by mapping and analysing Australia’s hard and soft power responses to terrorism. It follows the same basic structure as Chapter Two. Part I sets out Australia’s hard power legal responses to terrorism. It explains key aspects of Australia’s counter-terrorism laws and compares these with the UK’s counter-terrorism laws. Again, the purpose of this section is not to address every issue raised by these laws in depth, but rather to provide an overview of the ways in which the Australian government has used hard power to prevent terrorism since 9/11. Part I focuses on Australia’s counter-terrorism laws as they currently stand, although it explains some differences between the

Howard and Rudd governments’ approaches. In particular, it considers whether some controversial legal powers are likely to be renewed when they expire under sunset clauses in coming years. This is important for later sections, which consider whether the continuing existence of these powers is preventing Australia from striking an appropriate balance between its hard and soft power responses to terrorism.

Part II sets out Australia’s soft power responses to terrorism. It is divided into two parts. First, it first explains how soft power responses to terrorism developed under the conservative Howard government and the Rudd/Gillard Labor governments.

It does so in some detail as very little has been written about soft power responses to

7 Attorney-General’s Department, Building Community Resilience Grants Program (2010)

165 terrorism in Australia.8 This section also speculates briefly about the approach likely to be taken by the conservative Abbott government, which was elected to office in

September 2013, as this provides interesting parallels with the approach of the UK’s

Coalition government. Secondly, Part II sets out six current soft power responses to terrorism in Australia and draws some comparisons with the UK’s Prevent strategy.

Parts III-V test the three components of smart power thinking by analysing the difference and relationship between hard and soft power in Australian counter- terrorism. Each component of smart power thinking is addressed in turn. First, Part III considers the extent to which Australia’s hard and soft power responses to terrorism are distinct. Secondly, Part IV considers the extent to which soft power is morally preferable to hard power in Australian counter-terrorism. To consider this question,

Part IV focuses on three ways in which counter-terrorism laws undermine autonomy,

8 Some literature has focused on how counter-terrorism laws impact on Australia’s Muslim communities, with many arguing for a greater focus on community-based approaches to counter- terrorism: see, eg, Andrew Lynch and Nicola McGarrity, ‘Counter-Terrorism Laws: How Neutral Laws

Create Fear and Anxiety in Australia’s Muslim Communities’ (2008) 33(4) Alternative Law Journal

225; Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 3, 1172-1175; Sharon Pickering,

Jude McCulloch and David Wright-Neville, Counter-Terrorism Policing: Community, Cohesion and

Security (Springer, 2008); Sharon Pickering, Jude McCulloch and David Wright-Neville, ‘Counter-

Terrorism Policing: Towards Social Cohesion’ (2008) 50(1/2) Crime, Law and Social Change 91-109;

Sharon Pickering et al, Counter-Terrorism Policing and Culturally Diverse Communities: Final Report

2007 (Monash University and Victoria Police, 2007). However, to date there has been no sustained analysis of community-based approaches to counter-terrorism in Australia. This is likely because

Australia has come relatively late to the idea of having a program for countering violent extremism at the national level. For a detailed account of community-based approaches to counter-terrorism at the

State level in Australia, with some focus on the national level, see Victoria Sentas, Traces of Terror:

Counter-Terrorism Law, Policing, and Race (Oxford University Press, 2014).

166 as raised in Chapter Two: by creating ‘suspect communities’, by restricting political and religious choice, and by intervening before individuals have had sufficient opportunity to choose between different courses of action.9 On each of these grounds,

Part IV considers whether Australia’s soft power responses to terrorism are more compatible with autonomy. In addition, Part IV introduces a fourth idea: that hard power can protect autonomy in a way that soft power cannot. Lastly, Part V considers the extent to which Australia’s hard and soft power responses to terrorism are complementary. As in the previous chapter, it does so by considering whether hard and soft power are compatible, whether combining hard and soft power is effective, and whether it is possible for a government to rebalance its existing reliance on hard power. By testing smart power thinking in this way, it becomes clear that the UK and

Australian experiences of counter-terrorism differ in the extent to which they conform to Nye’s theory. The conclusion considers the insights that the contrasting UK and

Australian experiences of counter-terrorism can provide into smart power thinking.

I HARD POWER IN AUSTRALIAN COUNTER-TERRORISM

This section sets out Australia’s hard power legal responses to terrorism. Australia’s initial legislative response to 9/11 was a package of five Bills passed in March 2002.10

The major piece of legislation – the Security Legislation Amendment (Terrorism) Act

9 See Chapter Two, Part IV.

10 The five Bills were enacted as the following: Security Legislation Amendment (Terrorism) Act 2002

(Cth); Suppression of the Financing of Terrorism Act 2002 (Cth); Criminal Code Amendment

(Suppression of Terrorist Bombings) Act 2002 (Cth); Border Security Legislation Amendment Act 2002

(Cth); Telecommunications Interception Legislation Amendment Act 2002 (Cth).

167 2002 (Cth) (‘SLAT Act’) – introduced a statutory definition of terrorism and a range of

related offences into Part 5.3 of the Australian Criminal Code Act 1995 (Cth)

(‘Criminal Code’). Like many counter-terrorism laws, these five Bills were enacted in

haste, taking only 2 days to be passed by the House of Representatives.11 In part, this was because Australia was on a short timetable to comply with Security Council

Resolution 1373, which was adopted by the Security Council shortly after 9/11.12

Resolution 1373 required UN Member States to enact terrorism offences and other

preventive measures,13 such as restrictions on terrorist financing, and to report within

90 days to a newly established Counter-Terrorism Committee.14 Aside from obvious

political and cultural ties between the UK and Australia, this short timetable also

explains why Australia – with no experience of drafting national counter-terrorism laws – looked directly to the UK when drafting its own legal responses to terrorism.15

11 On the urgent passing of counter-terrorism laws after 9/11, see especially Andrew Lynch,

‘Legislating with Urgency: The Enactment of the Anti-Terrorism Act [No 1] 2005’ (2006) 31

Melbourne University Law Review 747; Greg Carne, ‘Prevent, Detain, Control and Order?: Legislative

Process and Executive Outcomes in Enacting the Anti-Terrorism Act (No 2) 2005 (Cth)’ (2007) 10

Flinders Journal of Law Reform 17; Joo-Cheong Tham, ‘Parliamentary Deliberation and the National

Security Executive: The Case of Control Orders’ (2010) (Jan) Public Law 79.

12 SC Res 1373, UN SCOR, 57th sess, 4385th mtg, UN Doc S/RES/1373 (28 September 2001).

13 SC Res 1373, UN SCOR, 57th sess, 4385th mtg, UN Doc S/RES/1373 (28 September 2001), arts 1-2.

14 SC Res 1373, UN SCOR, 57th sess, 4385th mtg, UN Doc S/RES/1373 (28 September 2001), art 6.

15 See Kent Roach, ‘The Post-9/11 Migration of Britain’s Terrorism Act 2000’ in Sujit Choudhry (ed),

The Migration of Constitutional Ideas (Cambridge University Press, 2006) 374.

168 A Definition of Terrorism

The Australian definition of terrorism in s 100.1 of the Criminal Code is closely modelled on the UK definition in s 1 of the Terrorism Act 2000 (UK).16 As in the UK, this legal definition of terrorism is not strictly a hard power measure in itself, but it plays a central role by determining the scope of Australia’s counter-terrorism laws and the circumstances in which they apply. Like the UK definition of terrorism, the

Australian definition of terrorism sets out three requirements for an act or threat to qualify as terrorism. First, the Australian definition includes a motive requirement, which provides that an action must be done or the threat made ‘with the intention of advancing a political, religious or ideological cause’.17 Secondly, the Australian definition includes an intention requirement, which provides that the person must intend to coerce a government, influence a government by intimidation, or intimidate

16 Criminal Code Act 1995 (Cth), s 100.1; cf Terrorism Act 2000 (UK) c 11, s 1.

17 Criminal Code Act 1995 (Cth), s 100.1(1)(b). This is equivalent to the motive requirement in the UK definition of terrorism, except that the Australian definition does not extend to acts designed to advance

‘racial’ causes: Terrorism Act 2000 (UK) c 11, s 1(c). On whether legal definitions of terrorism should include a motive requirement, see Ben Saul, ‘The Curious Element of Motive in Definitions of

Terrorism: Essential Ingredient or Criminalising Thought?’ in Andrew Lynch, Edwina Macdonald and

George Williams (eds), Law and Liberty in the War on Terror (Federation Press, 2007) 28; Kent

Roach, ‘The Case for Defining Terrorism With Restraint and Without Reference to Political or

Religious Motive’ in Andrew Lynch, Edwina Macdonald and George Williams (eds), Law and Liberty in the War on Terror (Federation Press, 2007) 39. On some of the problems with the motive requirement in the Australian definition of terrorism, see Keiran Hardy, ‘Hijacking Public Discourse:

Religious Motive in the Australian Definition of a Terrorist Act’ (2011) 34(1) University of New South

Wales Law Journal 333.

169 a section of the public.18 Thirdly, the Australian definition includes a list of alternative harms which a terrorist act must cause.19 As in the UK definition, the list of possible harms encompasses acts that cause serious property damage, endanger life, create a serious risk to health or safety, or seriously interfere with electronic systems.20

In addition, the Australian definition includes an exemption for acts of political protest.21 The effect of this provision is that political protests will be excluded from the scope of Australia’s counter-terrorism laws if they are intended only to cause property damage. In contrast to the UK definition, which includes no such exemption, this significantly reduces the risk that legitimate acts of political protest will be

18 Criminal Code Act 1995 (Cth), s 100.1(1)(c)(i). This is equivalent to the intention requirement in the

UK definition of terrorism, except that it does not encompass acts that are intended merely to

‘influence’ a government, and it does not encompass terrorism directed at ‘international governmental organisations’: Terrorism Act 2000 (UK) c 11, s 1(1)(b).

19 Criminal Code Act 1995 (Cth), s 100.1(1)(2). This is equivalent to the harm requirement in the UK definition of terrorism, although there are some important differences: in particular, the Australian harm requirement explicitly lists death and serious bodily harm, which are curiously omitted from the

UK definition. The Australian definition also lists a range of electronic systems with which an act of terrorism may seriously interfere, although in practice this difference is likely to be minimal as the list is non-exhaustive: Criminal Code Act 1995 (Cth), s 100.1(2)(f). On how this limb of the definition might apply to acts of cyber-terrorism, see Keiran Hardy, ‘WWWMDs: Cyber-Attacks Against

Infrastructure in Domestic Anti-Terror Laws’ (2011) 27(2) Computer Law & Security Review 152,

153-154.

20 Criminal Code Act 1995 (Cth), s 100.1(2)(b),(d),(e)-(f).

21 Criminal Code Act 1995 (Cth), s 100.1(3). Like the UK definition of terrorism, the Australian definition of terrorism also includes a sub-section (4) which expands the scope of the definition to conduct outside Australia: Terrorism Act 2000 (UK) c 11, s 1(4); Criminal Code Act 1995 (Cth), s

100.1(4).

170 targeted with counter-terrorism offences and powers. However, the scope of the

exemption may be limited in practice. All that the prosecution would need to prove for a protest to fall outside the exemption would be that the protestors intended to cause one in a list of enumerated harms.22 The lowest threshold in this list would likely be that a protestor intended to ‘create a serious risk to … health or safety’.23

This could be said of many legitimate protests, such as nurses striking or large

demonstrations on city streets.24 The scope of the Australian definition is still therefore extraordinarily wide and, like the UK definition, could apply to threats and conduct that would not ordinarily be described as terrorism.25

B Proscription Regime

Division 102 of the Australian Criminal Code sets out a range of group-based offences for individuals connected to proscribed terrorist organisations. As in the UK, the proscription of terrorist organisations is an executive process, although in

Australia there is no independent tribunal similar to the Proscribed Organisations

Appeal Commission (POAC) in which the decision to list an organisation can be

22 Criminal Code Act 1995 (Cth), s 100.1(3)(b).

23 Criminal Code Act 1995 (Cth), s 100.1(3)(b)(iv).

24 The Australian Greens and Democrats Parties opposed the wording of the protest exemption on this

basis: see Commonwealth, Parliamentary Debates, Senate, 24 June 2002, 2481, 2486 (Bob Brown);

Commonwealth, Parliamentary Debates, Senate, 24 June 2002, 2355, 2475 (Brian Greig);

Commonwealth, Parliamentary Debates, Senate, 24 June 2002, 2405-6 (Natasha Stott Despoja).

25 See further Keiran Hardy and George Williams, ‘What is “Terrorism”? Assessing Domestic Legal

Definitions’ (2011) 16(1) UCLA Journal of International Law and Foreign Affairs 77, 130-137.

171 judicially reviewed.26 Under div 102, an organisation may be proscribed as a terrorist organisation if the Attorney-General is satisfied that the organisation is ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act’.27 Since 2005, this has also included the possibility of an organisation

being proscribed where it ‘advocates the doing of a terrorist act’.28 An organisation will ‘advocate’ the doing of a terrorist act if it directly or indirectly ‘counsels or urges the doing of a terrorist act’, ‘provides instruction on the doing of a terrorist act’, or directly ‘praises the doing of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading a person … to engage in a terrorist act’.29 This definition of ‘advocates’ is similar to the UK offences of encouraging and glorifying terrorism,30 although in Australia this only provides the basis for the proscription of terrorist organisations and is not an offence in itself. As of July 2014, there are 19 proscribed terrorist organisations under div 102 of the

26 Terrorism Act 2000 (UK) c 11, s 5.

27 Criminal Code Act 1995 (Cth), s 102.1(2)(a). See generally Andrew Lynch, Nicola McGarrity and

George Williams, ‘Lessons From the History of the Proscription of Terrorist and Other Organisations by the Australian Parliament’ (2009) 13(1) Legal History 25; Andrew Lynch, Nicola McGarrity and

George Williams, ‘The Proscription of Terrorist Organisations in Australia’ (2009) 37(1) Federal Law

Review 1; Nicola McGarrity, ‘Review of the Proscription of Terrorist Organisations: What Role for

Procedural Fairness?’ (2008) 16(1) Australian Journal of Administrative Law 45.

28 Criminal Code Act 1995 (Cth), s 102.1(2)(b). This was inserted by the Anti-Terrorism Act (No. 2)

2005 (Cth).

29 Criminal Code Act 1995 (Cth), s 102.1(1A). The current wording of ‘substantial risk’ was added by

the Rudd government through the National Security Legislation Amendment Act 2010 (Cth), sch 2, item 1.

30 Terrorism Act 2006 (UK) c 11, ss 1-2.

172 Australian Criminal Code.31 Of these, 18 are Islamist organisations, including al-

Qaeda, the military wing of Hezbollah, Jemaah Islamiyah (JI) and Al-Shabaab.32

A number of criminal offences with serious penalties are made available once a terrorist organisation has been proscribed. These offences are also available without formal proscription if a jury is satisfied beyond reasonable doubt that an organisation is ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act’.33 The penalties for these offences are generally 15 or 25 years’ imprisonment, depending on whether the person knows that the organisation is a terrorist organisation.34 These offences include:

• Directing the activities of a terrorist organisation (s 102.2)

• Membership of a terrorist organisation (s 102.3)

• Recruiting for a terrorist organisation (s 102.4)

• Training a terrorist organisation or receiving training from a terrorist

organisation (s 102.5)

• Getting funds to, from or for a terrorist organisation (s 102.6)

31 Australian Government, Listed Terrorist Organisations .

32 See ibid. The Kurdistan Workers Party (PKK) is the only non-Islamist organisation. The most recent addition (in May 2014) was the listing of Boko Haram, which was responsible for bombings and the kidnapping of over 200 schoolchildren in Nigeria. In July 2014, the Islamic State of Iraq and the

Levant (ISIL) was relisted as the ‘Islamic State’ after that organisation proclaimed a caliphate in the areas it controls in Syria and Iraq: AAP, ‘Brandis adds Islamic State to list of terror groups’, The

Australian (Sydney), 12 July 2014.

33 See definition of ‘terrorist organisation’ in Criminal Code Act 1995 (Cth), s 102.1(a).

34 Of the offences listed below, the exception to this is membership, which attracts a maximum penalty of 10 years’ imprisonment: Criminal Code Act 1995 (Cth), s 102.3.

173 • Providing support to a terrorist organisation (s 102.7)35

Of the 37 individuals charged in Australia with terrorism offences, 18 have been charged with one of these group-based offences.36 These have included the prominent cases of Joseph ‘Jihad Jack’ Thomas,37 Izhar Ul-Haque (a medical student at the

University of New South Wales),38 and radical Muslim cleric Abdul Benbrika.39

Division 102 also provides an offence of ‘associating’ with a member of a terrorist organisation,40 although no charges have been laid under this provision. This offence is triggered where a person intentionally associates with a member of a terrorist organisation on two or more occasions.41 The maximum penalty is three

35 Criminal Code Act 1995 (Cth), ss 102.2-102.7.

36 See Council of Australian Governments, Council of Australian Governments Review of Counter-

Terrorism Legislation (Australian Government, 2013), app D (‘COAG Review Committee’). On terrorism trials in Australia, see generally Nicola McGarrity, ‘“Testing” Our Counter-Terrorism Laws:

The Prosecution of Individuals for Terrorism Offences in Australia’ (2010) 34(2) Criminal Law

Journal 92.

37 R v Thomas [2006] VSCA 165. See McGarrity, ‘“Testing” Our Counter-Terrorism Laws’, above n

35, 101-102.

38 R v Ul-Haque (2007) 177 A Crim R 348. See McGarrity, ‘“Testing” Our Counter-Terrorism Laws’, above n 35, 98-100.

39 R v Benbrika (2009) 222 FLR 433. See McGarrity, ‘“Testing” Our Counter-Terrorism Laws’, above n 35, 107-109.

40 Criminal Code Act 1995 (Cth), s 102.8.

41 Criminal Code Act 1995 (Cth), s 102.8(1). The offence also applies to associations with individuals who promote or direct the activities of a terrorist organisation: Criminal Code Act 1995 (Cth), s 102.8(1)(a)(i).

174 years’ imprisonment.42 The person must know that the organisation is a terrorist

organisation and that the person is a member of the organisation.43 The association

could amount to something as insignificant as a casual meeting or conversation,44

although the association must provide support to the organisation and the person must

intend that the support will ‘assist the organisation to expand or continue to exist’.45

There are specified exemptions for associations between family members and for

other legitimate purposes,46 although the Security Legislation Review Committee

(‘Sheller Committee’) nonetheless recommended that the offence be repealed because it undermined the right to freedom of association.47 This was echoed by Council of

Australian Governments Review Committee (‘COAG Review Committee’), which

published a major review of Australia’s counter-terrorism laws in May 2013.48

42 Criminal Code Act 1995 (Cth), s 102.8(1). Where a person has previously been convicted of this

offence, they can receive the same penalty if they intentionally associate with a member of a terrorist

organisation on one more occasion: Criminal Code Act 1995 (Cth), s 102.8(2).

43 Criminal Code Act 1995 (Cth), s 102.8(1)(a)(ii),(v).

44 Commonwealth, Security Legislation Review Committee, Report of the Security Legislation Review

Committee (2006) 123 (‘Sheller Committee’). The Committee is referred to as the Sheller Committee because it was chaired by The Hon Simon Sheller AO QC.

45 Criminal Code Act 1995 (Cth), s 102.8(1)(a)(iii)-(iv).

46 Criminal Code Act 1995 (Cth), 102.8(4)(a)-(d).

47 Sheller Committee, above n 44, 127.

48 COAG Review Committee, above n 36, 33.

175 C Preparatory Offences

Division 101 of the Australian Criminal Code contains a range of criminal offences

for terrorism which operate independently of any connection to a proscribed

organisation. As in the UK, these offences are designed primarily to prevent terrorist

attacks from occurring rather than punish individuals for committing them.49 As such,

the offences target a wide range of conduct prior and related to terrorist acts. Unlike

the UK government, however, the Australian government did include a basic offence

of committing a terrorist act.50 Australia was also much quicker to enact broad

preparatory offences for terrorism: the offences listed below were introduced by the

SLAT Act in March 2002 and formed a major part of Australia’s initial response to

9/11, whereas the Blair government did not enact such broad preparatory offences

49 See Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 3, 1140; Bernadette McSherry,

‘Expanding the Boundaries of Inchoate Crimes: The Growing Reliance on Preparatory Offences’ in

Bernadette McSherry, Alan Norrie and Simon Bronitt (eds), Regulating Deviance: The Redirection of

Criminalisation and the Futures of Criminal Law (Hart, 2009) 141; Tamara Tulich, ‘Prevention and

Pre-Emption in Australia’s Domestic Anti-Terrorism Legislation’ (2012) 1(1) International Journal of

Crim and Justice 52.

50 Criminal Code Act 1995 (Cth), s 101.1 (maximum penalty life imprisonment).

176 until March 2006.51 Alongside the organisation offences, these preparatory offences have provided the basis for some of Australia’s most prominent terrorist trials.52

There are six offences in div 101 of the Australian Criminal that criminalise conduct prior to a terrorist act:

• Providing or receiving training connected with terrorist acts (s 101.2)

• Possessing things connected with terrorist acts (s 101.4)

• Collecting or making documents likely to facilitate terrorist acts (s 101.5)

• Other acts done in preparation for, or planning, terrorist acts (s 101.6)

• Providing or collecting funds for terrorism (s 103.1)

• Providing or collecting funds for terrorists (s 103.2)53

Each of these offences applies even if a terrorist act does not occur.54 They also apply if the training, thing, document, money or other act is not connected with a specific

51 The UK government had enacted the offences of possessing and collecting terrorist documents before 9/11: Terrorism Act 2000 (UK) c 11, ss 57-58. However, it was not until 2006 that the UK enacted a broad catch-all offence for the preparation of terrorist acts: Terrorism Act 2006 (UK) c 11, s 5.

52 See Khazaal v R [2011] NSWCCA 129; R v Elomar [2010] NSWSC 10; R v Lodhi [2006] NSWSC

571. See further McGarrity, ‘“Testing Our Counter-Terrorism Laws’, above n 36, 96-98, 105-106, 109-

110.

53 Criminal Code Act 1995 (Cth), ss 101.2 (maximum penalty 25 years’ imprisonment where the person knows that the training is connected with preparation for a terrorist act), 101.4 (maximum penalty 15 years’ imprisonment where the person knows the thing is connected with preparation for a terrorist act), 101.5 (maximum penalty 15 years’ imprisonment where the person knows the document is connected with preparation for a terrorist act), 101.6 (maximum penalty life imprisonment), 103.1

(maximum penalty life imprisonment), 103.2 (maximum penalty life imprisonment).

177 act of terrorism.55 This means that individuals can receive serious penalties for very

early preparatory acts – such as collecting bomb-making material or downloading images of electricity grids – before they have chosen a date or target for the attack.56

These preparatory offences have a particularly wide application when inchoate liability (attempt or conspiracy) is applied to the substantive offence. In 2010, for example, five men received punishments ranging from 23 to 28 years’ imprisonment for a conspiracy to do an act in preparation for a terrorist act.57 The defendants had

collected ammunition, bomb-making material and extremist literature, but they had

not decided on the precise nature or target of their attack.58 In sentencing the five men

for an average quarter-century each in prison, Justice Whealy in the NSW Supreme

Court took a positive view of the preventive purpose underlying these offences:

The broad purpose of the creation of offences of the kind involved in the present

sentencing exercises is to prevent the emergence of circumstances which may render

more likely the carrying out of a serious terrorist act. Obviously enough, it is also to

punish those who contemplate action of the prohibited kind. Importantly, it is to

54 Criminal Code Act 1995 (Cth), ss 101.2(3)(a), 101.4(3)(a), 101.5(3)(a), 101.6(2)(a), 103.1(2)(a),

103.2(2)(a)

55 Criminal Code Act 1995 (Cth), ss 101.2(3)(b), 101.4(3)(b), 101.5(3)(b), 101.6(2)(b), 103.1(2)(a),

103.2(2)(b). The offences were extended to unspecified acts of terrorism by the Anti-Terrorism Act

2005 (Cth), which was rushed through Parliament by the Howard government in November 2005 on

the basis of an urgent threat to national security. This was known as the ‘the-to-a’ change: see

Commonwealth, Parliamentary Debates, House of Representatives, 2 November 2005, 92.

56 R v Elomar [2010] NSWSC 10; R v Lodhi [2006] NSWSC 691.

57 R v Elomar [2010] NSWSC 10.

58 R v Elomar [2010] NSWSC 10, [58].

178 denounce their activities and to incapacitate them so that the community will be

protected from the horrific consequences contemplated by their mindset and their

actions. The legislation is designed to bite early, long before the preparatory acts

mature into circumstances of deadly or dangerous consequence for the community.59

As discussed in Chapter Two,60 this ‘pre-crime’ logic is understandable as a mechanism to protect members of the public from serious harm – but it nonetheless poses a significant and ongoing challenge to traditional conceptions of criminal justice, in which individuals are ordinarily punished by the state only where they have committed some act that is ‘more than merely preparatory’ to a completed offence.61

D Speech Offences

Part 5.1 of the Australian Criminal Code contains ‘urging violence’ offences. These resemble the UK’s offences of encouraging and glorifying terrorism, but they are more narrowly targeted at the incitement of violence.62 Section 80.2 makes it an

59 R v Elomar [2010] NSWSC 10, [79].

60 See Chapter Two, Part IV(C).

61 Lucia Zedner, ‘Preventive Justice or Pre-Punishment? The Case of Control Orders’ (2007) 60(1)

Current Legal Problems 174, 192. See generally Lucia Zedner, ‘Pre-Crime and Post-Criminology?’

(2007) 11 Theoretical Criminology 261; Lucia Zedner, ‘Fixing the Future? The Pre-Emptive Turn in

Criminal Justice’ in Bernadette McSherry, Alan Norrie and Simon Bronitt (eds), Regulating Deviance:

The Redirection of Criminalisation and the Futures of Criminal Law (Hart, 2008) 35; Jude McCulloch and Sharon Pickering, ‘Pre-Crime and Counter-Terrorism: Imagining Future Crime in the “War on

Terror”’ (2009) 49(5) British Journal of Criminology 628.

62 See Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia

(Australian Government, Report 104, July 2006) 13, 125.

179 offence punishable by seven years’ imprisonment to urge the overthrow of the

Australian Constitution or government by force or violence, or to urge interference in

parliamentary elections.63 Sections 80.2A and 80.2B make it an offence to urge violence against a group or one of its members where the group is distinguished on the basis of its race, religion, ethnicity or political opinion.64 The penalty under

ss 80.2A and 80.2B is seven years’ imprisonment where the use of force or violence

would threaten the ‘peace, order and good government of the Commonwealth’.65

The current wording of the urging violence offences was introduced by the

Rudd government in 2010.66 The offences were originally introduced as ‘sedition’ offences by the Howard government in 2005,67 but these attracted substantial criticism, largely from the Australian Law Reform Commission (ALRC).68 The

ALRC argued that the sedition offences did not sufficiently protect legitimate

expressions of dissent about government policy.69 The Rudd government amended the sedition offences by including express intention requirements, such that a person must intentionally urge the use of force or violence and do so intending that force or

63 Criminal Code Act 1995 (Cth), s 80.2.

64 Criminal Code Act 1995 (Cth), ss 80.2A(1)(a),(c); 80.2B(1)(a),(d).

65 Criminal Code Act 1995 (Cth), ss 80.2A(1)(d); 80.2B(1)(e). The maximum penalty is five years’ imprisonment where the use of force or violence would not threaten the peace, order and good government of the Commonwealth: Criminal Code Act 1995 (Cth), ss 80.2A(2); 80.2B(2).

66 National Security Legislation Amendment Act 2010 (Cth), sch 1.

67 Anti-Terrorism Act (No. 2) 2005 (Cth), sch 7. The original sedition offences in the Crimes Act 1914

(Cth) criminalised words or conduct used to incite rebellion against the state, but these had fallen into

disuse: see ALRC, Fighting Words, above n 62, 10-11.

68 ALRC, Fighting Words, above n 62.

69 Ibid 15.

180 violence will occur.70 These are relatively minor amendments, but they are sufficient

to make Australia’s urging violence offences narrower than the UK’s offences of

encouraging and glorifying terrorism.71 The Terrorism Act 2006 (UK) (‘TA2006’)

provides the same penalty where a person ‘indirectly’ encourages terrorism and is

‘reckless’ as to whether others will be induced to commit an act of terrorism.72

On the basis of the ALRC’s recommendations, the Rudd government also

introduced new treason offences in s 80.1AA.73 The sedition offences introduced by

the Howard government made it an offence to ‘assist’ enemies at war with the

Commonwealth, or a country or organisation engaged in armed hostilities with the

Australian Defence Force (ADF).74 The ALRC expressed concern that this ‘blanket prohibition’ could apply to ‘merely dissenting opinions about government policy’, such as criticism of Australia’s military contributions to the wars in Iraq and

Afghanistan.75 Under the new s 80.1AA, a person must intend that their conduct

‘materially assist’ an enemy at war with the Commonwealth, or a country or organisation that is engaged in armed hostilities with the ADF.76 This again provides

an interesting contrast with the UK’s speech offences. As described in Chapter Two, a

70 Criminal Code Act 1995 (Cth), ss 80.2(1)(a)-(b), 80.2A(1)(a)-(b), 80.2B(1)(a)-(b). The Rudd government also reduced the maximum penalty to five years’ imprisonment where the conduct does not threaten the peace, order or good government of Cth: Criminal Code Act 1995 (Cth), ss 80.2A(2),

80.2B(2).

71 Terrorism Act 2006 (UK) c 11, ss 1-2.

72 Terrorism Act 2006 (UK) c 11, s 1(2)(ii).

73 Criminal Code Act 1995 (Cth), s 80.1AA.

74 Criminal Code Act 1995 (Cth), s 80.2 (7)-(8) (now repealed).

75 ALRC, Fighting Words, above n 62, 15.

76 Criminal Code Act 1995 (Cth), s 80.1AA(1)(d); (4)(c) (emphasis added).

181 UK law student received five years’ imprisonment for uploading videos onto

YouTube that encouraged insurgent attacks against Coalition forces in the Middle

East.77 This conduct could have been prosecuted under the previous sedition offences,

but it would not likely fall within the scope of the current treason offences, as it is

unlikely that the student intended to ‘materially assist’ the insurgent forces.78

E Police Powers

1. Pre-Charge Detention

The Crimes Act 1914 (Cth) (‘Crimes Act’) contains additional police powers relating

to the terrorism offences set out above. Where an individual is arrested for a terrorism

offence, the investigating officer may apply to a magistrate to have the usual four-

hour limit on pre-charge detention extended by up to 20 hours.79 This gives a total of

24 hours before an individual arrested for a terrorism offence must be charged and brought before a court. This is a significantly shorter period than the 14-day limit on pre-charge detention set by the UK’s Coalition government,80 which can also be

extended to 28 days in urgent circumstances.81

77 R v Gul [2012] EWCA Crim 280. See Chapter Two, Parts I(D), IV(B).

78 As in Criminal Code Act 1995 (Cth), s 80.1AA(1)(d), (4)(c).

79 Crimes Act 1914 (Cth), ss 23DB(5)(b), 23DE, s 23DF(7). In the case of non-terrorism offences, the usual pre-charge detention period of four hours may be extended by a maximum of eight hours: Crimes

Act 1914 (Cth), ss 23C(4)(b), 23DA(7).

80 Protection of Freedoms Act 2012 (UK) c 9, s 57.

81 Protection of Freedoms Act 2012 (UK) c 9, ss 58; Detention of Terrorism Suspects (Temporary

Extensions) Bills (Cm 8018, February 2011).

182 However, the 24-hour limit under the Australian legislation may be extended

for a further seven days by virtue of exemptions for ‘dead time’.82 Under Part IC of the Crimes Act, the police may apply to a magistrate to disregard periods of time during which questioning is suspended or delayed.83 Effectively, the police ‘stop the clock’ during certain intervals so that the 24-hour limit does not expire until eight

days after the arrest is made. There are a number of specified exemptions for dead

time, such as the time taken to transport the person from the place of arrest to the

police station, the time taken for the person to speak with his or her lawyer, and the

time taken for the police to conduct forensic tests and make overseas inquiries.84

The current 7-day limit on dead time was introduced by the Rudd government

in 2010 in response to a judicial inquiry into the case of Mohammed Haneef (‘Clarke

Inquiry’).85 The Howard government introduced the extended period of pre-charge detention for terrorism offences in 2004, but it did not prescribe any limit on the amount of dead time that could be claimed by police.86 In July 2007, this allowed the

Australian Federal Police to arrest Haneef (an Indian doctor working in Australia) and

detain him for 12 days before charging him with intentionally providing resources to a

terrorist organisation.87 Haneef was accused of providing his mobile phone SIM card

to his second cousin in England, who was suspected of involvement in the attempted

82 Crimes Act 1914 (Cth), Pt IC.

83 Crimes Act 1914 (Cth), ss 23DB(9), s 23DC(2).

84 See Crimes Act 1914 (Cth), s 23DB(9)(a),(b), (g),(h),(k).

85 Crimes Act 1914 (Cth), s 23DB(11); National Security Legislation Amendment Act 2010 (Cth), sch

3; Hon John Clarke QC, Report of the Clarke Inquiry into the Case of Dr Mohamed Haneef (Australian

Government, 2008).

86 See Anti-Terrorism Act 2004 (Cth), items 3-12.

87 Criminal Code Act 1995 (Cth), s 102.7(2).

183 terrorist attack on Glasgow Airport. The charge against Haneef was later dropped and

the Australian government paid him an undisclosed amount of compensation.88

The Clarke Inquiry also supported the idea of creating an office similar to the

UK’s Independent Reviewer of Anti-Terrorism Legislation.89 As a result, the Rudd

government in 2010 established the office of the Independent National Security

Legislation Monitor (‘Independent Monitor’), a position which has been held by Bret

Walker SC.90 The Independent Monitor is charged with ensuring that Australia’s counter-terrorism laws contain appropriate safeguards and remain proportionate and necessary.91 To conduct these reviews, the Independent Monitor can rely on a range

of information gathering powers, such as holding hearings, summoning persons,

requiring evidence to be taken on oath, or requesting the production of documents and

things.92 It is an offence punishable by six months’ imprisonment to fail to comply

with one of these demands.93 These coercive powers allow the Independent Monitor

to serve an important accountability function with regard to Australia’s hard power

88 ‘Haneef compensation “about $1m”’, Sydney Morning Herald, 22 December 2010.

89 Clarke Inquiry, above n 85, xii (Recommendation 3-4).

90 Independent National Security Legislation Monitor Act 2010 (Cth). Walker has since published three

reports: Bret Walker SC, Annual Report: 16 December 2011 (Australian Government, 2012); Bret

Walker SC, Declassified Annual Report: 20th December 2012 (Australian Government, 2013) (‘2012

Report’); Bret Walker SC, Annual Report: 7th November 2013 (Australian Government, 2013). On the quality of Walker’s reporting, see Jessie Blackbourn and Nicola McGarrity, ‘National security monitor: off to a good start’, The Drum (online), 30 March 2012

3920962.html>. For a comparison between the Australian and UK reviewers, see Jessie Blackbourn,

‘Who’s watching counter-terrorism laws in Australia’, The Conversation (Melbourne), 3 April 2012.

91 Independent National Security Legislation Monitor Act 2010 (Cth), s 6(3).

92 See Independent National Security Legislation Monitor Act 2010 (Cth), pt 3.

93 See Independent National Security Legislation Monitor Act 2010 (Cth), s 25.

184 legal responses to terrorism. However, the Australian government has paid little attention to the Monitor’s detailed reports,94 and the Abbott government has recently introduced a Bill to abolish the office.95

2. Stop and Search

In addition to the specific powers above, which are tied to the possible commission of a terrorism offence, the Crimes Act gives Australian police a general power to stop and search individuals within ‘prescribed security zones’.96 The Attorney-General may declare a ‘Commonwealth place’ to be a prescribed security zone if he or she considers that this would help to prevent or respond to a terrorist act.97

94 See Jessie Blackbourn, ‘Anti-Terrorism Law Reform: Now or Never?’ (2014) 25 Public Law Review

3; Jessie Blackbourn, ‘Non-response reduces security monitor’s role to window-dressing’, The

Conversation (Melbourne), 19 December 2013.

95 Independent National Security Legislation Monitor Repeal Bill 2014 (Cth). At the time of writing, the Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs and has attracted heavy criticism in public submissions: see, eg, Gilbert + Tobin Centre of Public Law,

Submission No 3 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into

Independent National Security Legislation Monitor Repeal Bill 2014, 29 April 2014; Clive Walker,

Submission No 9 to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into

Independent National Security Legislation Monitor Repeal Bill 2014, 3 May 2014.

96 Crimes Act 1914 (Cth), s 3UD. The power also applies in ‘Commonwealth places’ that are not prescribed security zones if a police officer ‘suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit, a terrorist act’: Crimes Act 1914

(Cth), s 3UB(1)(a).

97 Crimes Act 1914 (Cth), s 3UJ.

185 ‘Commonwealth places’ has a specific legal meaning,98 but the definition typically includes airports, military bases, government offices and court buildings.99 A police

officer may stop and detain any person within a prescribed security zone for the

purpose of searching for a ‘terrorism related item’.100 A terrorism related item is one

that the officer reasonably suspects is connected with the preparation for a terrorist

act.101 The officer may search the person, any thing under the person’s control, any vehicle operated or occupied by the person, and any thing that the person has brought into the Commonwealth place.102 Any terrorism related item found during the search

may be seized.103 The person may be detained only for as long as reasonably

necessary for the search to be conducted.104

This is similar to the UK’s stop-and-search power in s 47A of the Terrorism

Act 2000 (UK),105 although its scope is narrower and wider in different respects. Both

the UK and Australian stop-and-search powers apply within designated areas, and

neither requires reasonable suspicion that the person is about to commit a terrorist

98 See Commonwealth Places (Application of Laws) Act 1970 (Cth) s 3. ‘Commonwealth place’ is defined in that section as ‘a place (not being the seat of government) with respect to which the

Parliament, by virtue of section 52 of the Constitution, has, subject to the Constitution, exclusive power to make laws for the peace, order, and good government of the Commonwealth’.

99 COAG Review Committee, above n 36, 82.

100 Crimes Act 1914 (Cth), s 3UD(a)(b). .

101 Crimes Act 1914 (Cth), 3UA.

102 Crimes Act 1914 (Cth), s 3UD(1).

103 Crimes Act 1914 (Cth), s 3UE.

104 Crimes Act 1914 (Cth), s 3UD(3).

105 Terrorism Act 2000 (UK), s 47A.

186 act.106 However, in the UK, any area may be authorised for the purposes of s 47A,

whereas in Australia only Commonwealth places may be designated as prescribed

security zones.107 The geographic scope of the Australian power is therefore narrower, and this likely explains why the Australian population has not experienced the same extraordinary number of searches by police.108 On the other hand, the circumstances in which a search may be conducted under the Australian legislation are significantly wider. Under the UK legislation, a senior police officer must reasonably consider that an act of terrorism will take place and consider that the search is necessary for preventing that act.109 The Australian legislation, by contrast, allows any police officer to stop and search any individual without any consideration as to a possible terrorist attack. The police may stop and search any person within a prescribed security zone so long as they are searching for a terrorism related item.110

Australian police also have the power to search premises without a warrant in order to prevent a thing from being used in connection with a terrorism offence, or

106 The UK equivalent requires that a senior police officer ‘reasonably suspects that an act of terrorism will take place’ and ‘reasonably considers that … the authorisation is necessary to prevent such an act’, but it does not require reasonable suspicion that the person being searched is involved in terrorism:

Terrorism Act 2000 (UK) c11, s 47A(1). See Protection of Freedoms Act 2012 (UK) c 9, s 61.

Reasonable suspicion is only required under the Australian legislation where the Commonwealth place is not a prescribed security zone: Crimes Act 1914 (Cth), s 3UB(1)(a).

107 Terrorism Act 2000 (UK) c 11, sch 6B. See Protection of Freedoms Act 2012 (UK) c 9, sch 5.

108 In the UK, the predecessor to s 47A was used up to 250 000 times in a single year, without this leading to any successful convictions for terrorism offences: David Anderson QC, The Terrorism Acts in 2012: Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 (TSO, July 2013) 7.

109 Terrorism Act 2000 (UK) c 11, s 47A(1).

110 Crimes Act 1914 (Cth), s 3UD(1)(b).

187 where there is a ‘serious and imminent threat to a person’s life, health or safety’.111

The Rudd government introduced this power in 2010,112 and it is a strong indicator

that the Rudd government was not concerned only with reducing the scope of the

Howard government’s counter-terrorism laws. The Rudd government narrowed the

scope of the sedition offences, introduced the 7-day limit on dead-time, and created

the office of the Independent Monitor – but it also expanded police powers in this

regard.

F Questioning and Detention Warrants

In 2003, the Howard government amended the Australian Security Intelligence

Organisation Act 1979 (Cth) (‘ASIO Act’) to give Australia’s domestic intelligence

organisation the power to detain and question Australian citizens not suspected of

involvement in terrorism. Pt III Div III of the ASIO Act allows the Director-General

of the Australian Security Intelligence Organisation (ASIO) to apply to the Attorney-

General for two types of warrants: questioning warrants, and questioning and

detention warrants.113 The Attorney-General may apply for a questioning warrant where there are reasonable grounds for believing that the warrant will ‘substantially assist the collection of intelligence that is important in relation to a terrorism offence’.114 The person must appear immediately for questioning, which may take

111 Crimes Act 1914 (Cth), s 3UEA s (1).

112 National Security Legislation Amendment Act 2010 (Cth), sch 4.

113 Australian Security Intelligence Organisation Act 1979 (Cth), ss 34D, 34F.

114 Australian Security Intelligence Organisation Act 1979 (Cth), s 34D(4)(a); 34E(1)(b).

188 place in 8-hour blocks up to a total of 24 hours.115 The Attorney-General may apply

for a questioning and detention warrant where an additional criterion is satisfied: that

there are reasonable grounds for believing the person may alert a person involved in a

terrorism offence, not appear for questioning, or tamper with evidence.116 The person may then be detained for up to seven days for the purposes of questioning.117 In both

cases, it is an offence punishable by five years’ imprisonment to fail to appear for

questioning, to refuse to answer ASIO’s questions, to provide false or misleading

information, or to disclose information about the warrant for a period of two years

after the event.118 In principle, the person is entitled to a lawyer,119 although ASIO may veto the person’s choice of lawyer,120 and any contact between the person and his or her lawyer is monitored.121 Since 2003, 16 questioning warrants have been issued,

but the power to issue questioning and detention warrants has never been used.122

These coercive questioning powers can be used against any person – including

witnesses to suspicious behaviour – so long as the person could provide ASIO with

intelligence that is important in relation to a terrorism offence. The warrants may also

115 Australian Security Intelligence Organisation Act 1979 (Cth), s 34E(2); 34R(1),(2),(6).

116 Australian Security Intelligence Organisation Act 1979 (Cth), s 34F(4)(d). The same initial threshold test applies (i.e. that issuing the warrant would substantially assist in the collection of intelligence that is important in relation to a terrorism offence): Australian Security Intelligence

Organisation Act 1979 (Cth), s 34F(4)(a); s 34G(1)(b).

117 Australian Security Intelligence Organisation Act 1979 (Cth), ss 34G(4)(c), 34S.

118 Australian Security Intelligence Organisation Act 1979 (Cth), s 34L, s 34ZS.

119 Australian Security Intelligence Organisation Act 1979 (Cth), s 34D(5), s 34E(3).

120 Australian Security Intelligence Organisation Act 1979 (Cth), s 34ZO.

121 Australian Security Intelligence Organisation Act 1979 (Cth), s 34ZQ(2).

122 Walker, 2012 Report, above n 90, 154.

189 be issued against children between 16 and 18 years of age if there are reasonable grounds for believing that the child is likely to commit a terrorism offence.123 This is a notable safeguard compared to the powers that were originally introduced into

Parliament,124 although it seems a relatively low threshold when one considers the broad scope of the definition of terrorism and preparatory offences.125

The powers were originally subject to a 3-year sunset clause but were renewed in 2006 for a further 10 years. They are now due to expire in July 2016.126 Whether or not the powers are renewed will likely depend on a scheduled review to be undertaken by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).127 If the

Independent Monitor’s views are any indication, it may be that the power to issue questioning warrants may be renewed but the power to detain individuals for the purposes of questioning will be repealed.128 In his 2012 report, the Independent

123 Australian Security Intelligence Organisation Act 1979 (Cth), s 34ZE(4)(a). See Lisa Burton, Nicola

McGarrity and George Williams, ‘The Extraordinary Questioning and Detention Powers of the

Australian Security Intelligence Organisation’ (2012) 36 Melbourne University Law Review 415, 434-

436.

124 Under the original Bill, ASIO would have had the power to detain any person over the age over 14 for the purpose of collecting intelligence, and to deny that person contact with their family, employer or lawyer: see Burton, McGarrity and Williams, above n 123, 423-424. See generally Jenny Hocking,

Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (UNSW Press, 2004) 212-230.

125 Criminal Code Act 1995 (Cth), ss 100.1, 101.2-101.6.

126 Australian Security Intelligence Organisation Act 1979 (Cth), s 34ZZ.

127 Burton, McGarrity and Williams, above n 123, 418. The review must take no later than six months prior to the expiry of the provisions: Intelligence Services Act 2001 (Cth), s 29(1)(bb).

128 The Independent Monitor was generally supportive of questioning warrants, but he recommended the repeal of questioning and detention warrants: see Walker, 2012 Report, above n 90, 68-98, 106.

190 Monitor described the power to detain non-suspects for the purpose of gathering

intelligence as ‘certainly a drastic interference with personal liberty and freedom’.129

G Control Orders

In 2005, the Howard government enacted a control order regime based on the UK’s

control order regime in the Prevention of Terrorism Act 2005 (‘PTA’).130 Whereas the

Coalition government in the UK recently repealed the PTA and enacted a less

restrictive ‘TPIM’ regime,131 the Australian government has retained its control order regime as originally enacted. The power to issue control orders is contained in div 104 of the Criminal Code,132 and, like the former UK regime, this allows the state to impose severe restrictions on liberty without proof of criminal guilt. Under div 104, an individual may be prohibited from being in certain areas or places, required to remain within a specified premises between specified times each day, required to report to police at specified times each day, required to wear a tracking device, and

prohibited from communicating or associating with specified individuals.133 As with

control orders and TPIMs in the UK, it is an offence punishable by five years’

imprisonment to fail to comply with any of the conditions specified in the order.134

129 Ibid 99.

130 Anti-Terrorism Act (No 2) 2005 (Cth); Prevention of Terrorism Act 2005 (UK) c 2 (now repealed).

131 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23.

132 Criminal Code Act 1995 (Cth), div 104.

133 See the full list of possible restrictions at Criminal Code Act 1995 (Cth), s 104.5(3).

134 Criminal Code Act 1995 (Cth), s 104.27; Terrorism Prevention and Investigation Measures Act

2011 (UK) c 23, s 23; Prevention of Terrorism Act 2005 (UK) c 2, s 9.

191 The conditions imposed under div 104 could amount to virtual house arrest,

although in contrast to the UK, the use of control orders in Australia has been

relatively restrained. Whereas 52 control orders were issued in the UK, only two

control orders have been issued in Australia.135 The restrictions imposed in Australia have also been less severe. For example, ‘Jihad Jack’ Thomas was required to remain within his own residence between 12:00am and 5:00am – a significantly less stringent restriction than many of the curfew and relocation requirements imposed in the UK.136

For a control order to be issued, a senior member of the Australian Federal

Police (AFP) must first seek permission from the Attorney-General and then apply to an ‘issuing court’.137 The court may issue an interim control order if it is satisfied on the balance of probabilities that the person has trained with a terrorist organisation, or that the control order would ‘substantially assist in preventing a terrorist act’.138

Because these are framed as alternatives, the individual need not actually be suspected

of any involvement with terrorism. This is a significantly lower threshold compared to

the UK’s PTA, which required that the Home Secretary had reasonable grounds for

suspecting that the individual was involved in terrorism.139 The issuing court must also be satisfied that each of the conditions included in the order is ‘reasonably

135 Against David Hicks and Joseph ‘Jihad Jack’ Thomas: see Lisa Burton and George Williams, ‘What

Future for Australia’s Control Order Regime?’ (2013) 24 Public Law Review 182, 191-194.

136 See Jabbour v Thomas [2006] FMCA 1286, sch 1. Cf Secretary of State for the Home Department v

JJ [2006] EWHC 1623 (Admin), where six Iraqi nationals were required to remain within a state- owned, one-bedroom flat for 18 hours each day and to wear an electronic monitoring tag at all times.

137 Criminal Code Act 1995 (Cth), ss 104.2(2), 104.3. ‘Issuing court’ means the Federal Court, Family

Court, or Federal Magistrates Court of Australia: Criminal Code Act 1995 (Cth), s 100.1.

138 Criminal Code Act 1995 (Cth), s 104.4(1)(c).

139 Prevention of Terrorism Act 2005 (UK) c 11, s 2(1)(a).

192 necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.’140 If the AFP applies to have the control order confirmed, a second hearing takes place and the individual may attend and make submissions.141

A confirmed control order may only last for a maximum of 12 months,142 although subsequent control orders may then be issued in relation to the same person.143

The control order legislation is due to expire under a sunset clause in

December 2015.144 Given the move to TPIMs in the UK,145 there is a strong case for amending the control order legislation in Australia,146 especially considering that only two control orders have ever been issued and no control orders are currently in force.

On the other hand, the fact that TPIMs display many similarities to control orders gives some reason to retain the legislation in its current form.147 In addition, the two recent reviews of Australia’s counter-terrorism laws have produced conflicting

140 Criminal Code Act 1995 (Cth), s 104.4(1)(d).

141 Criminal Code Act 1995 (Cth), s 104.14(1). However, the court may confirm the control order without variation if the person fails to attend: Criminal Code Act 1995 (Cth), s 104.14(4).

142 Criminal Code Act 1995 (Cth), s 104.16(1)(d).

143 See Burton and Williams, above n 135, 190.

144 Criminal Code Act 1995 (Cth), s 104.32.

145 Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23.

146 See Clive Walker, ‘The Reshaping of Control Orders in the United Kingdom: Time for a Fairer Go,

Australia!’ (2013) 37 Melbourne University Law Review 143.

147 On the similarities between control orders and TPIMs in the UK, see United Kingdom,

Parliamentary Debates, House of Commons, 7 June 2011, vol 529, cols 71 (Pete Wishart), 74, 76

(Yvette Cooper), 109 (Jeremy Corbyn), 124 (Bob Stewart), 137 (Paul Goggins); Liberty, Press

Release: Progress on Stop and Search but Control Orders by Any Other Name (26 January 2011)

. See discussion in Chapter Two, Part I(G).

193 recommendations: the Independent Monitor recommended that the power to issue

control orders be repealed,148 whereas the COAG Review Committee recommended

that div 104 be retained with some additional safeguards.149 In the absence of overwhelming support for its repeal, it seems likely that the control order legislation will be renewed,150 although it is possible that some of the safeguards proposed by the

COAG Review Committee may be adopted.

H Preventative Detention Orders

The same legislation that created the control order regime in 2005 also created a

preventative detention order (PDO) regime in div 105 of the Criminal Code.151 Under div 105, individuals may be taken into custody and detained for up to 48 hours if there are reasonable grounds for suspecting that the person will engage in a terrorist act, possesses a thing connected with preparation for a terrorist act, or has done an act in preparation for a terrorist act.152 The PDO must be reasonably necessary to prevent an

148 Walker, 2012 Report, above n 90, 44.

149 See COAG Review Committee, above n 36, xiii-xv. For example, it recommended (at xiv) that div

104 include an express prohibition on relocating individuals to other communities

(Recommendation 33).

150 Andrew Lynch has noted the tendency of governments to adopt recommendations favouring the maintenance and expansion of counter-terrorism laws over conflicting recommendations that those powers should be repealed or reduced in scope: Andrew Lynch, ‘The Impact of Post-Enactment

Review on Anti-Terrorism Laws: Four Jurisdictions Compared’ (2012) 18(1) Journal of Legislative

Studies 63, 67, 72.

151 Anti-Terrorism Act (No. 2) 2005 (Cth).

152 Criminal Code Act 1995 (Cth), s 105.4(1),(4)(a).

194 ‘imminent’ terrorist act from occurring.153 Alternatively, a PDO may be issued where a terrorist act has occurred in the last 28 days and it is necessary to detain the person to preserve evidence relating to that terrorist act.154 In both cases, a senior member of the AFP may issue an ‘initial’ PDO, which lasts for 24 hours, and then an AFP officer may apply to an ‘issuing authority’ for a ‘continuing’ PDO, in which case the detention may be extended for a further 24 hours.155 Under State law, this 48-hour limit may be extended up to a total maximum of 14 days.156 During this time, the detainee is allowed to contact one family member and their employer,157 but only for the purpose of saying that they are ‘safe but … not able to be contacted for the time being’.158 If the person reveals that they are being detained, it is an offence punishable by five years’ imprisonment.159 The person may also contact a lawyer, although any

153 Criminal Code Act 1995 (Cth), s 105.4(4)(b)(c), (5)(a). ‘Imminent’ is defined as occurring at some time in the next 14 days: Criminal Code Act 1995 (Cth), s 105.4(5)(b).

154 Criminal Code Act 1995 (Cth), s 105.4(6).

155 Criminal Code Act 1995 (Cth), ss 105.8(5), 105.11, 105.12, 105.13. An issuing authority may be as a serving or retired judge or member of the Administrative Appeals Tribunal: Criminal Code Act 1995

(Cth), s 100.1.

156 See Terrorism (Police Powers) Act 2002 (NSW), s 26K(2); Terrorism (Extraordinary Temporary

Powers) Act 2006 (ACT), s 21(3)(b); Terrorism (Emergency Powers) Act 2003 (NT) s 21K; Terrorism

(Preventative Detention) Act 2005 (Qld) s 12(2); Terrorism (Preventative Detention) Act 2005 (SA) s

10(5)(b); Terrorism (Preventative Detention) Act 2005 (Tas) s 9(2); Terrorism (Community Protection)

Act 2003 (Vic) s 21I(2)(b); Terrorism (Preventative Detention) Act 2005 (WA) s 15(4).

157 Criminal Code Act 1995 (Cth), s 105.35.

158 Criminal Code Act 1995 (Cth), s 105.35(1).

159 Criminal Code Act 1995 (Cth), s 105.41.

195 contact between the person and his or her lawyer will be monitored.160 These contact rights may be removed if the detainee is subject to a ‘prohibited contact order’.161

Like ASIO’s power to detain individuals for the purposes of gathering intelligence, the PDO regime is an extraordinary counter-terrorism power that has not been used since its enactment yet remains on the Australian statute books. The PDO regime is set to expire at the same time as the control order regime, in December

2015.162 Considering the recent damning reviews by the COAG Review Committee and the Independent Monitor, it is possible that the Australian government will choose to let div 105 expire. The COAG Review Committee described the power to issue PDOs as more appropriate in a totalitarian state than a liberal democracy:

[T]he concept of police officers detaining persons ‘incommunicado’ without charge

for up to 14 days, in other than the most extreme circumstances, might be thought to

be unacceptable in a liberal democracy. There are many in the community who would

regard detention of this kind as quite inappropriate. To some, it might call to mind the

sudden and unexplained ‘disappearances’ of citizens last century during the fearful

rule of discredited totalitarian regimes.163

The COAG Review Committee gave some weight to the fact that div 105 had not been used, but it was in large part swayed by the submissions of three State police forces.164 Those submissions suggested that police would be unlikely to use PDOs

160 Criminal Code Act 1995 (Cth), ss 105.37, 105.38.

161 Criminal Code Act 1995 (Cth), 105.15(1).

162 Criminal Code Act 1995 (Cth), s 105.53.

163 COAG Review Committee, above n 36, 68 [265].

164 Victoria, South Australia and Western Australia: ibid 69 [269].

196 because the application process was too complex, because they would be unable to

question the subject while he or she was being detained, and because the threshold

required to impose a PDO meant that they would likely have enough evidence to

arrest and charge the person.165 The Independent Monitor reached a similar conclusion,166 and both reviews recommended that div 105 be repealed.167

I Border and Transport Security

The Customs Act 1901 (Cth) and the Aviation Transport Security Act 2004 (Cth) contain coercive search powers that may be exercised in airports, as well as related criminal offences. Customs officers may arrest a person without a warrant where the person resists or obstructs their functions, or makes a threat to cause serious harm.168

Officers at screening checkpoints have a general power to frisk search a person in

order to carry out a proper search.169 It is an offence punishable by seven years’ imprisonment to carry a weapon through a screening point,170 and an offence punishable by two years’ imprisonment to carry a prohibited item through a screening

165 See ibid 69-70.

166 The Independent Monitor reached a similar conclusion, arguing that more effective and appropriate alternatives to PDOs were available: see Walker, 2012 Report, above n 90, 52-59, 62-64.

167 COAG Review Committee, above n 36, 6; Walker, 2012 Report, above n 90, 67.

168 Customs Act 1901 (Cth), s 210 (introduced by the Border Security Legislation Amendment Act 2002

(Cth)).

169 Aviation Transport Security Act 2004 (Cth), s 95C.

170 Aviation Transport Security Act 2004 (Cth), s 47. A list of prohibited weapons (including replicas and imitation weapons) is included in the Aviation Transport Security Regulations 2005 (Cth), reg

1.09.

197 point.171 Airport security guards, customs officers and screening officers all have the power to physically restrain a person suspected of committing these offences.172

There is no power in Australian legislation comparable to the UK’s port and

border controls in sch 7 of the Terrorism Act 2000 (UK) (TA2000).173 The closest

analogue is the stop-and-search powers described above, which allow Australian

police to stop and search individuals within ‘prescribed security zones’,174 but these

allow the police to detain individuals only for as long as is ‘reasonably necessary’ to

carry out a search.175 It seems unlikely that this requirement of reasonable necessity could justify detaining a person for six hours.176 In addition, whereas the sch 7 powers apply in any port or border area,177 the Australian legislation requires that the

Attorney-General previously designated the airport as a prescribed security zone.178

The Australian stop and search powers may be used in an airport that has not been

declared as a prescribed security zone, but in that case the police officer would need

to suspect on reasonable grounds that the person ‘might have just committed, might

171 Aviation Transport Security Act 2004 (Cth), s 55. A ‘prohibited item’ is any thing that could be used for unlawful interference with aviation: Aviation Transport Security Act 2004 (Cth), s 9.

172 Aviation Transport Security Act 2004 (Cth), ss 89F, 92, 96.

173 Terrorism Act 2000 (UK) c 11, sch 7. Those powers allow UK police, immigration and customs officers to detain individuals for up to nine hours for the purpose of determining whether they are a

‘suspected terrorist’: Terrorism Act 2000 (UK) c 11, cls 2, 6. See Chapter Two, Part I(I).

174 Crimes Act 1914 (Cth), s 3UD.

175 Crimes Act 1914 (Cth), s 3UD(3).

176 As in Terrorism Act 2000 (UK) c 11, sch 7, cl 6A, as amended by Anti-Social Behaviour, Crime and

Policing Act 2014 (UK) c 12, sch 9, item 2.

177 Terrorism Act 2000 (UK) c 11, sch 7, cl 2.

178 Crimes Act 1914 (Cth), s 3UB(1)(b).

198 be committing or be about to commit, a terrorist act’.179 This sets a significantly higher threshold for conducting a search than sch 7, which requires only that the examining officer chooses to determine whether the person is a suspected terrorist.180

J Conclusions

Like the UK government, the Australian government has a significant range of hard

power legal measures at its disposal to prevent domestic terrorism. These encompass

criminal offences, special police powers, and control orders that impose significant

restrictions on liberty without proof of criminal guilt. These powers are guided by a

broad definition of terrorism and they permit substantial coercive state action on the

basis of conduct that is only remotely connected to a future terrorist act. In several

respects – such as by criminalising associations between individuals, by giving ASIO

the power to detain non-suspect citizens, and by allowing the AFP to detain

individuals incommunicado for up to two weeks – the Australian government has

gone significantly further than the UK government in enacting hard power legal

responses to terrorism. In other respects, such as the pre-charge detention powers,

stop-and-search provisions, and border security, Australia’s approach has been more

restrained. Each of the legal measures described above differs in the severity of the

restrictions it imposes and the circumstances in which it may apply. However, they

may be usefully categorised as hard power responses to terrorism insofar as they

179 Crimes Act 1914 (Cth), s 3UB(1)(a).

180 Terrorism Act 2000 (UK) c 11, sch 7, cl 2(1).

199 compel individuals to act against their will and include the deterrent ‘threat’ of such

action.181

The Rudd government made some effort to reduce the scope of the Howard

government’s hard power legal responses to terrorism. The urging violence offences

are significantly narrower than the Howard government’s sedition offences and

comparable speech offences in the UK,182 the 7-day limit on dead-time is a significant limit on police power, and the Independent Monitor is an important accountability mechanism with sufficient powers to conduct thorough reviews of Australia’s counter-terrorism laws. On the other hand, the Rudd government introduced a power to conduct warrantless searches,183 the reports of the Independent Monitor and COAG

Review Committee have largely been ignored,184 and overall the vast majority of the

Howard government’s coercive apparatus still remains. In this respect, the Rudd government’s approach has been similar to the Coalition government’s approach in the UK: both governments came to power after a significant period of counter- terrorism lawmaking, both displayed a willingness for reform, and yet the amendments they introduced made little inroad into the severe and sometimes extraordinary hard power legal responses to terrorism enacted by their predecessors. It

181 As in Nye’s definition of hard power: Joseph S Nye Jr, Soft Power: The Means to Success in World

Politics (Public Affairs, 2004) 5; Joseph S Nye Jr, Bound to Lead: The Changing Nature of American

Power (Basic Books, 1990) 31.

182 Terrorism Act 2006 (UK) c 11, ss 1-2.

183 Crimes Act 1914 (Cth), s 3UEA.

184 Blackbourn, ‘Anti-Terrorism Law Reform’, above n 94; Blackbourn, ‘Non-response reduces security monitor’s role to window-dressing’, above n 94.

200 seems that security concerns are still taking preference over concerns about human

rights, despite a long period without a successful terrorist attack in either country.

An important time for Australian counter-terrorism will come in late 2015 and early 2016, when ASIO’s coercive questioning powers, PDOs and control orders will all expire under sunset clauses.185 ASIO has never detained anybody for questioning and the AFP has never issued a PDO. Only two control orders have ever been issued and the legislation is not currently being used. These are strong arguments for repealing the provisions, although it is often noted that counter-terrorism laws once enacted become extremely difficult to repeal.186 The implications that these dormant powers pose for smart power thinking are explored in Part V.

II SOFT POWER IN AUSTRALIAN COUNTER-TERRORISM

This section sets out Australia’s soft power responses to terrorism. Compared to the

UK, Australia has come relatively late to the idea of supplementing its counter- terrorism laws with a national program for countering terrorist ideology and

185 Australian Security Intelligence Organisation 1979 (Cth), s 34ZZ; Criminal Code Act 1995 (Cth), ss

104.32, 105.53.

186 Indeed, not only do they become difficult to repeal, but they can also ‘seep’ into other areas of law: see, eg, Nicola McGarrity and George Williams, ‘When Extraordinary Measures Become Normal: Pre-

Emption in Counter-Terrorism and Other Laws’ in Nicola McGarrity, Andrew Lynch and George

Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice After 9/11 (Routledge,

2010) 131; Gabrielle Appleby and John Williams, ‘The Anti-Terror Creep: Law and Order, the States and the High Court of Australia’ in Nicola McGarrity, Andrew Lynch and George Williams (eds),

Counter-Terrorism and Beyond: The Culture of Law and Justice After 9/11 (Routledge, 2010) 150.

201 radicalisation.187 As described below, the development of a smart power counter- terrorism strategy in Australia has been incremental, and many of the initiatives have operated within a wider multiculturalism and social inclusion agenda rather than being specifically designed for the purposes of counter-terrorism. On the other hand,

Australia’s soft power responses to terrorism have proved significantly less controversial than the UK’s Prevent strategy,188 so this incremental and indirect

approach may provide some important insights into how Western governments can

develop an effective smart power strategy for preventing domestic terrorism.

The section is divided into two main parts. First, it explains the development

of soft power responses to terrorism under the Howard government and the

Rudd/Gillard governments. It does so in some detail as very little has been written

about soft power responses to terrorism in Australia.189 This section also speculates briefly about the approach likely to be taken by the conservative Abbott government, which was elected to office in September 2013, as this provides some interesting parallels with the approach of the UK’s Coalition government. Secondly, the section explains Australia’s current soft power responses to terrorism in six categories.

A Background: The Slow Development of a Smart Power Strategy

1. Howard Government

187 Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 3, 1174.

188 See especially House of Commons Communities and Local Government Committee, Parliament of

United Kingdom, Preventing Violent Extremism: Sixth Report of Session 2009-10 (HC 65, 30 March

2010) (‘CLG Committee’). See discussion in Chapter Two, Parts III-V.

189 See text to above n 8.

202

The first time that soft power responses to terrorism received any significant attention in Australia was on 23 August 2005, when Prime Minister John Howard and other

Commonwealth ministers met with Islamic community leaders in the aftermath of the

London bombings.190 The attendees of that meeting published a joint ‘Statement of

Principles’ in which the government committed to working closely with Islamic communities to counter violence and intolerance and promote democratic values. The

Statement of Principles set out the following agreement:

• our discussions today represented an important exchange of ideas between

the Australian Government and the Islamic community that should continue;

• the Australian Government will seek the cooperation of the Governments of

the States and Territories in working towards a national strategy to address

intolerance and the promotion of violence;

• those present will continue to take a lead working with their communities and

with other Islamic organisations to promote harmony, mutual understanding

and Australian values within their communities and to challenge violence and

extremism; and

• the Australian government will ensure that its programmes and policies

enhance mutual understanding between the Islamic community and the

190 Council of Australian Governments, Council of Australian Governments Communiqué: Special

Meeting on Counter-Terrorism (Australian Government, 27 September 2005) (‘COAG Communiqué)

203 broader Australian community and promote the Australian values of

harmony, justice and democracy.191

In September 2005, the Howard government established a ‘Muslim Community

Reference Group’ (MCRG) comprising 14 representatives from the Islamic community. The MCRG provided advice on how the federal government could work more effectively with Muslim communities to achieve the goals agreed in the

Statement of Principles.192 The MCRG was generally praised for including Muslim women and youth in addition to prominent male sheikhs,193 and for organising a successful Conference of Australian Imams,194 although it was disbanded after one year amid significant controversy. There were concerns that its members were hand- picked by the government and not truly representative of the Muslim community, that

191 Australian Government, Australian Government Meeting with Islamic Community Leaders:

Statement of Principles (23 August 2005) 7 . See Brendan Nicholson, ‘PM, Muslim leaders agree, denouncing terror’, The Age

(Melbourne), 24 August 2005; ‘Meeting unanimously rejects terrorism: Howard’, Sydney Morning

Herald, 23 August 2005.

192 See Department of Immigration and Multicultural Affairs, Annual Report 2005-06 (Australian

Government, October 2006) 223 (‘DIMA Annual Report 2005-06’).

193 See Kais Al-Momani et al, Political Participation of Muslims in Australia (Centre for Research on

Social Inclusion, June 2010) 46, 102.

194 See Muslim Community Reference Group, Building on Social Cohesion, Harmony and Security: An

Action Plan by the Muslim Community Reference Group, Department of Immigration and Citizenship,

Annual Report 2006-07: Output 2.4 – Promoting the Benefits of Cultural Diversity, Table 70 (‘DIMA

Annual Report 2006-07’) .

204 its role was too closely aligned with counter-terrorism, and that it had never even met with the Prime Minister.195 There was also significant infighting amongst MCRG members as to how various problems in Muslim communities should be resolved.196

The Howard government fared much better with the National Action Plan

(‘NAP’),197 which funded a range of community projects from mid-2006. The NAP recommended a range of soft power strategies, including civics and values education, information programs about religious and cultural diversity, professional development opportunities for religious leaders and teachers, employment opportunities for minority communities, and research into the causes of violence and extremism.198 The

NAP revealed a smart power logic in which efforts to address the underlying causes of extremism would form a key part of Australia’s approach to counter-terrorism:

195 Jewel Topsfield, ‘“Separatist” ethnic body under attack’, The Age (Melbourne), 28 November 2006;

Joshua Roose, ‘The Future of Australian Islam and Multiculturalism’, APSA Refereed Conference

Papers (September 2010) 3 ; Al-

Momani et al, above n 193, 21; Roach, The 9/11 Effect, above n 2, 357.

196 ABC Radio, ‘Muslim Advisory Council meets government’, PM, 27 February 2006 (Leigh Sales)

; ABC Radio, ‘Imam considers quitting

Muslim Reference Group’, PM, 6 March 2006 (David Mark)

197 Ministerial Council on Immigration and Multicultural Affairs, A National Action Plan to Build on

Social Cohesion, Harmony and Security (Australian Government, 2006) (‘National Action Plan’).

COAG requested the Ministerial Council on Immigration and Multicultural Affairs to develop the NAP after the September 2005 meeting with Muslim leaders: see COAG Communiqué, above n 190, 3;

Department of Immigration and Citizenship, National Action Plan to Build on Social Cohesion,

Harmony and Security: Final Evaluation Report (Australian Government, 2010) 7 (‘NAP Evaluation’).

198 See National Action Plan, above n 197, 10-15.

205 Australian security authorities have identified that Australians are at risk of being

terrorist targets both at home and abroad, including from home-grown extremists, and

that this risk will continue for some time … The NAP seeks to address the underlying

causes of terrorism, including the social and economic factors that encourage

radicalisation and motivate extremist behaviour, as a contribution to a comprehensive

approach to counter-terrorism.199

The Department of Immigration and Multicultural Affairs (DIMA) received $5.9m in

2005/6 to develop and implement the NAP.200 Part of this funding was used to

sponsor 58 community projects relating generally to multiculturalism, integration and

social cohesion.201 Many of these projects built on the existing ‘Living in Harmony’

program, which was established in 1998 as part of the Howard government’s election

promise to establish an anti-racism education and awareness campaign.202 For

example, a project run by the Royal Life Saving Society Australia developed links

with Muslim communities by training some 700 students in water safety skills.203

Similar NAP-related projects were funded by the Howard government in 2006/7.204

199 Ibid 6.

200 DIMA Annual Report 2005-06, above n 192, 223.

201 Ibid 223.

202 Department of Immigration and Citizenship, Living in Harmony: Program Review (Australian

Government, 2008) 5 (‘Living in Harmony’).

203 DIMA Annual Report 2006-07, above n 194.

204 See ibid.

206 As described below, the NAP continued after the Rudd Labour government

was elected to office in December 2007, but its funding concluded in June 2010.205 It

seems that the NAP was considered a success, with the Department of Immigration

and Citizenship (DIAC) reporting that the strategy ‘met its objectives effectively’.206

DIAC described the NAP as ‘a worthwhile, relevant and appropriate program,

addressing an area of real need at the time’.207

2. Rudd/Gillard Governments

In May 2008, the newly elected Rudd government established the Australian Social

Inclusion Board (‘SIB’), which comprised 14 experts on law, health, Indigenous disadvantage and other areas.208 The SIB was tasked with advising the government,

consulting with the community and reporting on social inclusion in Australia.209 Its

goal was broadly to ensure that ‘everyone is able to participate fully in Australian

society’, although one of its more specific aims was to ‘eliminat[e] the threats to

security and harmony that arise from excluding groups in our society’.210 The SIB

205 NAP Evaluation, above n 197, 3. Over the course of five financial years, from 2005/6 to 2009/10, the NAP received a total of $41.5m in funding: ibid 8.

206 Ibid 23.

207 Ibid 3.

208 Emily Long, ‘The Australian Social Inclusion Agenda: A New Approach to Social Policy?’ (2010(

45(2) Australian Journal of Social Issues 161, 176.

209 Australian Social Inclusion Board, Social Inclusion in Australia: Australia is Faring (Department of

Prime Minister and Cabinet, 2010) 1.

210 Ibid.

207 produced the ‘Social Inclusion Principles’,211 a guidance document on ‘Building

Inclusive and Resilient Communities’,212 and a detailed report on the extent of social inclusion in Australia.213 The Rudd government elevated this social inclusion agenda to Cabinet level, creating a Minister for Social Inclusion which served until 2013.214

Initially, then, the Rudd government’s efforts to improve security through soft

power operated within this wider social inclusion agenda, although its stance on soft

power responses to terrorism became clearer over time. On 4 December 2008, Rudd

delivered the first National Security Statement to the Australian Parliament, in which

he declared that Australia’s “‘soft power’” assets are … significant’.215 He argued the benefits of a community-based approach to improving national security:

Through community engagement we can achieve important national security

outcomes ranging from sustaining support for our forces deployed overseas,

undermining the influence of violent ideologies and preserving the social cohesion of

our diverse society. Just as neighbourhood watch programs promote security at a

211 Australian Government, Social Inclusion Principles for Australia (2009). The principles included

‘Reducing disadvantage’ and ‘Increasing social, civil and economic participation’.

212 Australian Social Inclusion Board, Building Inclusive and Resilient Communities (Australian

Government, June 2009).

213 Australian Social Inclusion Board, Social Inclusion in Australia, above n 209, 1.

214 See Noel Towell, ‘Reshuffle to “cut public sector waste”’, Sydney Morning Herald, 19 September

2013; Sid Maher and David Crowe, ‘Tony Abbott takes charge, axes mandarins’, The Australian

(Sydney), 19 September 2013.

215 Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008, 12554

(Kevin Rudd).

208 local level, so we recognise the contribution all Australians can make to promoting

security at a national level.216

In particular, the National Security Statement reiterated the importance of a smart

power approach to counter-terrorism. Rudd emphasised that ‘[e]ffective mitigation of

terrorist attacks involves the combination of an appropriate security response with

broader strategies to enhance social cohesion and resilience’.217 Shortly after delivering the National Security Statement, Rudd established the Australian

Multicultural Advisory Council (AMAC),218 which replaced the Howard government’s discredited MCRG. AMAC provided advice to the Minister for

Immigration and Citizenship on social cohesion and cultural diversity, and published its recommendations as a statement entitled The People of Australia.219 AMAC served until 30 June 2011, and was replaced in August 2011 when Julia Gillard’s government launched a new 10-member Australian Multicultural Council (AMC).220

216 Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008, 12555

(Kevin Rudd).

217 Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008, 12552

(Kevin Rudd).

218 See Department of Immigration and Border Protection, Australian Multicultural Advisory Council

(AMAC) (19 November 2013) .

219 Australian Multicultural Advisory Council, The People of Australia: The Australian Multicultural

Advisory Council’s Statement on Cultural Diversity and Recommendations to Government (Australian

Multicultural Advisory Council, April 2010).

220 See Australian Government, Australian Multicultural Council (2013) .

209 From 2008 until June 2010 the Rudd government continued to fund community projects under the Howard government’s NAP.221 The largest of these was the Community Policing Partnership Project (CPPP), which was funded by the

Australian Human Rights Centre’s (AHRC’s) Community Partnerships for Human

Rights (CPHR) program.222 The CPPP was established in response to the Isma! and

Unlocking Doors reports, published by the Human Rights and Equal Opportunity

Commission (HREOC), which had suggested that Australian Muslims had increasingly become the targets of verbal and physical abuse since 9/11.223 The CPPP comprised 38 community projects involving non-government organisations, local police and the Australian Federal Police.224 For example, the Auburn Police Service in New South Wales delivered a 12-week mentoring program for marginalised

Muslim youth in Lebanese and Afghan communities.225 As described further below, it

221 See Department of Immigration and Citizenship, Annual Report 2009-10: Administered Item—

National Action Plan to Build on Social Cohesion, Harmony and Security—Community Engagement

(2010) .

222 Australian Human Rights Commission, Australian Multicultural Foundation and ARC Centre of

Excellence in Policing and Security, Building Trust: Working with Muslim Communities in Australia –

A Review of the Community Policing Partnership Project (Australian Human Rights Commission and

Australian Multicultural Foundation, December 2010) 7 (‘CPPP’).

223 Human Rights and Equal Opportunity Commission, Report to the Department of Immigration and

Citizenship (DIAC) on the Unlocking Doors Project (Human Rights and Equal Opportunity

Commission, 2007) (‘Unlocking Doors’); Human Rights and Equal Opportunity Commission, Isma! –

Listen: National Consultations on Eliminating Prejudice Against Arab and Muslim Australians

(Human Rights and Equal Opportunity Commission, 2004) (‘Isma!’).

224 CPPP, above n 222, 7.

225 Ibid 18, 20.

210 seems that these projects were well received by communities and improved

relationships between communities and the police.226 The NAP concluded on 30 June

2010 and was merged into the AHRC’s Race Discrimination Project.227

The Rudd government’s commitment to soft power responses to terrorism solidified in the 2010 Counter-Terrorism White Paper Securing Australia – Protecting

Our Community.228 While the Howard and Rudd governments had both expressed their commitment to soft power responses to terrorism, this was the first time that a formal strategy for countering violent extremism at the national level had been published in Australia.229 Like the UK’s CONTEST strategy,230 the White Paper set

out four policy strands for countering terrorism: ‘Analysis’, ‘Protection’, ‘Response’,

and ‘Resilience’.231 The Response strand is Australia’s equivalent to the Pursue strand

of CONTEST,232 and largely corresponds to the counter-terrorism laws set out in

Part I. The Resilience strand is Australia’s equivalent to the UK’s Prevent strategy and involves soft power efforts to counter terrorist ideology and radicalisation.233

226 See ibid 19.

227 Australian Human Rights Commission, Race Discrimination (22 April 2014)

228 Australian Government, Counter-Terrorism White Paper: Securing Australia – Protecting Our

Community (Department of Prime Minister and Cabinet, 2010) (‘Counter-Terrorism White Paper’).

229 Ibid i.

230 HM Government, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (TSO, July

2011, Cm 8123) (‘CONTEST 2011’).

231 Counter-Terrorism White Paper, above n 228, iii.

232 Ibid 55-61.

233 HM Government, Prevent Strategy (TSO, June 2011, Cm 8092) (‘Prevent Strategy 2011’).

211 At just over three pages,234 the Resilience strand of the White Paper is significantly less detailed than the Prevent strategy,235 although it reflects a similar basic strategy. The White Paper reiterated the smart power logic set out in the

National Security Statement,236 in which community-based efforts to counter violent extremism represent a crucial supplement to hard power legal responses:

In addition to intelligence and law enforcement approaches to counter-terrorism,

other instruments of government, as well as communities, can contribute to

addressing the broader long-term causes of terrorism and violent extremism, and the

conditions in which they thrive.237

The White Paper was scant on detail as to how this strategy might be implemented, although it explained that the government would work with communities to:

• provide information on our counter-terrorism efforts and basic facts about

domestic initiatives and foreign policy;

• seek to address grievances that could encourage a receptiveness to violent

extremism; and

234 Counter-Terrorism White Paper, above n 228, 65-68.

235 Not including annexes, the UK’s 2008 Prevent strategy was 45 pages long: HM Government, The

Prevent Strategy: A Guide for Local Partners in England – Stopping People Becoming or Supporting

Terrorists and Violent Extremists (Home Office and Department for Communities and Local

Government, May 2008) (‘Prevent Strategy 2008’).

236 Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2008, 12555

(Kevin Rudd).

237 Counter-Terrorism White Paper, above n 228, 65. See also National Counter-Terrorism Committee,

Plan (Australian Government, 3rd ed, 2012) 13 [64] (‘National Counter-Terrorism Plan 2012’).

212 • provide opportunities for people at risk of violent extremism to actively

participate in Australia’s economy, society and democratic processes238

This focus on addressing grievances and increasing social participation reflected the

Rudd government’s wider commitment to social inclusion. In this respect, the

Resilience strand of White Paper resembled the ‘hearts and minds’ approach of the

Brown government’s 2008 Prevent strategy in the UK, which included the goals of

addressing grievances and building resilient communities.239 These more inclusive

approaches contrast with the Coalition government’s revised Prevent strategy in the

UK, which focuses heavily on countering terrorist ideology and radicalisation.240

Since 2010, the Resilience strand of the White Paper has been implemented

through the ‘Resilient Communities’ program, which is coordinated by the federal

Attorney-General’s department.241 The 2010 federal budget allocated $9.7m over four

years for the program, and since 2011 the Australian government has awarded

approximately $5 million in funding for 59 community projects.242 This might be

considered a relatively small investment compared to the funds allocated to the UK’s

238 Counter-Terrorism White Paper, above n 228, 67.

239 Prevent Strategy 2008, above n 235, 31-40. See also Department for Communities and Local

Government, Preventing Violent Extremism: Winning Hearts and Minds (Communities and Local

Government, April 2007).

240 See Prevent Strategy 2011, above n 233.

241 See Attorney-General’s Department, Building Community Resilience Grants Program (2011)

242 See ibid.

213 Prevent strategy.243 However, it is a significant development in Australia in the sense that soft power responses to terrorism for the first time became a formal part of the federal counter-terrorism infrastructure. A number of important steps have been taken in this regard: the Attorney-General’s department established a Countering Violent

Extremism (CVE) Unit,244 the federal government launched a new website (entitled

‘Resilient Communities’),245 and the Defence Science and Technology Organisation published a literature review of academic research on violent extremism.246 As part of its Resilient Communities initiative, the government also published a short

‘Countering Violent Extremism Strategy’, which set out four key objectives:

1.) Identify and divert violent extremists and, when possible, support them in

disengaging from violent extremism

2.) Identify and support at-risk groups and individuals to resist and reject violent

extremist ideologies

3.) Build community cohesion and resilience to violent extremism

4.) Achieve effective communications that challenge extremist messages and

support alternatives247

243 For example, in 2008/9, the Prevent strategy received £140m in funding: Home Office, Pursue

Prevent Protect Prepare: The United Kingdom’s Strategy for Countering Terrorism (TSO, March

2009, Cm 7547) 12 (‘CONTEST 2’).

244 Attorney-General’s Department, Countering Violent Extremism (2014)

NationalSecurity/Counteringviolentextremism/Pages/default.aspx>.

245 Australian Government, Resilient Communities (2014) .

246 Minerva Nasser-Eddine et al, Countering Violent Extremism (CVE) Literature Review (Defence

Science and Technology Organisation, March 2011). The review was commissioned by the National

Counter-Terrorism Committee and the Attorney-General’s Department.

247 Australian Government, Countering Violent Extremism Strategy

214

The increasing importance given to soft power responses to terrorism over the term of

the Rudd/Gillard governments can also be seen in the National Counter-Terrorism

Plan, which is published by the National Counter-Terrorism Committee (NCTC).248

The NCTC comprises representatives from the federal, State and Territory

governments and was established through an intergovernmental agreement after the

Bali bombings in 2002.249 The NCTC published the third edition of the National

Counter-Terrorism Plan in 2012.250 The first and second editions, published under the

Howard government in 2003 and 2005, did not include any reference to soft power

strategies for countering violent extremism.251 By contrast, the third edition displayed a similar smart power logic to the White Paper and the National Security Statement:

Countering violent extremism (CVE) is an integral component of Australia’s counter-

terrorism prevention strategies … The effective prevention of violent extremism

involves combining an appropriate security and law enforcement response with

broader strategies to enhance resilience to, and lessen the appeal of, violent extremist

influences.252

gov.au/aboutus/Pages/countering-violent-extremism-strategy.aspx>.

248 National Counter-Terrorism Plan 2012, above n 237.

249 National Counter-Terrorism Committee, Ten Year Anniversary Report (2012) 2

250 National Counter-Terrorism Plan 2012, above n 237.

251 National Counter-Terrorism Committee, National Counter-Terrorism Plan (Australian Government,

June 2003); National Counter-Terrorism Committee, National Counter-Terrorism Plan (Australian

Government, 2nd ed, September 2005).

252 National Counter-Terrorism Plan 2012, above n 237, 12 [63]-13[64].

215

3. Abbott Government

It is not yet clear whether the Abbott government will make any significant changes

to Australia’s soft power responses to terrorism, although early indications suggest

that any changes made will favour hard power responses to terrorism. The Liberal

Party’s election campaign brochure, while brief, said that an Abbott government

would ‘deliver improved counter-terrorism and domestic security measures in

Australia and secure our ports and airports’.253 This tougher stance on border security

can clearly be seen in the Abbott government’s asylum seeker policy, which formed a

major part of its election campaign and has already been implemented through

‘Operation Sovereign Borders’.254 In particular, one of the Abbott government’s first decisions in office was to abolish the Social Inclusion Board and the social inclusion portfolio.255 This does not affect the more formal aspects of the Rudd government’s

soft power responses to terrorism, such as the Attorney-General’s Resilient

Communities program, but it does narrow the scope of social policy that could help to

address the underlying causes of terrorism. The current Attorney-General, Senator

George Brandis, met with Islamic community leaders in July 2014, suggesting some

degree of commitment to community engagement, although this was largely to

253 Liberal Party of Australia, Our Plan: Real Solutions for All Australians – The Direction, Values and

Policy Priorities of the Next Coalition Government (Liberal Party, January 2013) 48.

254 Australian Customs and Border Protection Service, Operation Sovereign Borders (2014)

255 See Towell, above n 214; Maher and Crowe, above n 214.

216 discuss how the government could counter the potential threat posed by Australians

returning from fighting in Syria and Iraq.256 Based on these early indications, it seems

likely that soft power responses to terrorism under the Abbott government, like the

Coalition government’s Prevent strategy in the UK,257 will focus more on countering terrorist ideology and radicalisation and less on improving community integration.

B Soft Power Responses to Terrorism

Current soft power responses to terrorism in Australia can be divided into six categories. Some important differences between Australia’s soft power responses to terrorism and the UK’s Prevent strategy are noted briefly here and explored further in

Parts III-IV below.

1. Community Projects

There are two major features of Australia’s soft power responses to terrorism. The first is a range of community-based projects such as education programs, sporting activities and leadership training. In contrast to the Coalition government’s revised

Prevent strategy in the UK,258 the Australian government has maintained a focus on

256 Attorney-General, ‘Doorstop with Islamic Community Leaders’ (Media Release, 2 July 2014); SBS

News (Online), ‘Brandis meets with imams in move to stop ISIS recruitment’ (2 July 2014)

See Katharine Murphy, ‘George Brandis vow to detain alleged jihadists from Iraq and Syria

“nonsense”’, The Guardian (Sydney), 2 July 2014.

257 Prevent Strategy 2011, above n 233.

258 Ibid.

217 these kinds of community-based projects, although it is possible that the current focus

on community and capacity building will wane under the Abbott government.

Currently, the Attorney-General’s ‘Building Community Resilience’ (BCR) grants

program provides funding for community projects in the following areas:

• Mentoring for youth vulnerable to extremist influences

• Intercultural and interfaith education in schools

• Peer support and team-building activities for at-risk individuals

• Sports activities that promote understanding and inclusion

• Materials to educate teachers

• Skills and leadership training to improve social and economic opportunities

259 • Online resources and activities to connect with international scholars.

In 2011/12, the BCR program funded 23 projects at a cost of approximately $1.9m.260

In 2012/13, around the same number of projects were funded at a cost of

approximately $1.4m.261 Many of these projects focused on Australia’s Lebanese,

Somali and Afghan Muslim communities. For example, the Horn of Africa Relief and

Development Agency (HARDA) ran an intensive mentoring program for Somali

259 Australian Government, Resilient Communities: Current Activities (2014) .

260 See Australian Government, Building Community Resilience Program: 2011-12 Projects (2014)

(‘BCR Grants 2011-12’)

Documents/bcr-grants-2011-12.pdf>.

261 See Australian Government, Building Community Resilience Program: 2012-13 Projects (2014)

(‘BCR Grants 2012-13’)

Documents/bcr-grants-2012-13.pdf>.

218 youth that involved leadership training and sporting activities.262 Many other BCR projects were non-denominational and focused more broadly on youth mentoring, sporting activities and the promotion of human rights within local communities.263

2. Community Policing

The second major feature of Australia’s soft power responses to terrorism is a community policing program coordinated by the AFP. This is broadly similar to the involvement of police officers in Prevent work in the UK, but it is less directly connected to counter-terrorism. The AFP have established ‘Community Liaison

Teams’ (CLTs) which are designed to build ‘positive, trusting and cohesive relationships with the community’.264 Similar initiatives have been established at the

State level in some jurisdictions.265 The aims of the CLT program are to improve social cohesion and to reduce the likelihood of individuals becoming radicalised.266

262 Ibid 3.

263 See BCR Grants 2011-12, above n 260; BCR Grants 2012-13, above n 261.

264 Australian Federal Police, Community Engagement (2014) .

265 The Victorian Police Force is considered a ‘national and international leader in “multicultural policing” for counter-terrorism’: Sentas, above n 7, 163. On the approach of the Victorian Police, see generally Sentas, above n 7, 150-193. The NSW Police Force has similarly established a ‘Community

Contact Unit’, the role of which is to ‘develop community partnerships, and increase understanding of

NSW Police Force counter terrorism response arrangements: NSW Police Force, Countering Terrorism

(31 March 2010) .

266 Australian Federal Police, Community Engagement, above n 264.

219 The work of the CLTs is guided by the ‘National Community Engagement

Strategy’, which has five objectives, including to support AFP investigations by

increasing their awareness of cultural, ethnic, and religious issues.267 As part of this

program, the AFP have also organised more specific events, such as the ‘Unity Cup’,

an Australian Rules Football (AFL) competition in which youth from Muslim

communities have played alongside police officers and professional footballers.268

3. Public Awareness

Australia’s soft power responses to terrorism focus on improving public awareness about issues relating to terrorism and national security. This contrasts with the UK government’s approach to the Prevent strategy, in which soft power is used primarily to ‘rebut and reject proponents of terrorism’.269 The Resilient Communities website

sets out a range of information and advice about terrorism and government policy,

including information about Australia’s counter-terrorism laws, factors contributing to

radicalisation, the COAG Review Committee, and Australia’s multiculturalism

policy.270 A section of the website entitled ‘Your Rights’ explains the concept of universal human rights and how they are protected in Australia.271

267 Ibid.

268 See AFL Victoria, Unity Cup (2014) .

269 Prevent Strategy 2011, above n 233, 108.

270 See, eg, Australian Government, Resilient Communities: Counter-Terrorism Laws (2014)

;

Australian Government, Resilient Communities: Keeping Australia Safe (2014) ; Australian Government,

Resilient Communities: What Is Violent Extremism? (2014)

220 This approach is also reflected in the ‘National Security Public Information

Guidelines’ published by the National Counter-Terrorism Committee.272 The

Guidelines set out a framework for government agencies involved in the

dissemination of public information relating to national security. This includes

notifying Australians about a change in the national terrorism public alert system.273

The three main goals set out in the Guidelines are for national security agencies to:

• Improve the understanding of the public of Australia’s national security

organisations and systems;

• Generate confidence in Australia’s ability to respond to any terrorism threat or

activity; and

• Create public trust that governments and national security agencies are open and

accountable, and will release all information possible within the confines of

operational and security considerations.274

/aboutus/Pages/what-is-violent-extremism.aspx>.

271 Australian Government, Resilient Communities: Your Rights (2014) .

272 National Counter-Terrorism Committee, National Security Public Information Guidelines

(Australian Government, June 2010).

273 Ibid 1.

274 Ibid 1.

221 4. Online Radicalisation

Like the UK government, the Australian government is increasingly focusing on the

threat posed by the spread of extremist material on the Internet. Few specific details

of these programs are available, although the Resilient Communities website explains

that the Australian government is working with communities to limit the influence of

extremist messages online.275 The Website recommends that individuals concerned

about extremist material on the Internet should call the National Security Hotline or

contact the Australian Communications and Media Authority (ACMA), which

administers a complaints system under the Broadcasting Services Act 1992 (Cth).276

5. Prisons

The federal government is working with State and Territory governments to develop

rehabilitation programs for prisoners serving sentences for terrorism offences. A

Prisons Working Group has been established within the Countering Violent

Extremism (CVE) Sub-Committee of the NCTC and includes representatives from

law enforcement and corrections services in each State and Territory.277 Few details of these programs are currently available, but the brief description offered by the

Attorney-General’s department suggests that the Australian approach, like the UK

275 Australian Government, Resilient Communities: Current Activities, above n 259.

276 Ibid.

277 Ibid.

222 approach, will include ‘de-radicalisation’ programs for prisoners already radicalised

and ‘counter-radicalisation’ programs for other inmates at risk of radicalisation.278

In February 2010, the NSW Minister for Corrective Services announced that a

de-radicalisation program would be established in NSW prisons as part of a

management program for convicted terrorists.279 The program was fast-tracked after five men in Sydney were convicted for an alleged plan to attack the Lucas Heights

Nuclear reactor.280 The Minister for Corrective Services described the program as an

‘intensive process with trained professionals from within the correct[ive] services

system working one on one with serious offenders’.281 The program will include counselling and rehabilitation.282

6. Research

The Australian government has also conducted and commissioned academic research relating to violent extremism. It is difficult to describe this last category as a soft power response to terrorism as it does not directly influence the behaviour of individuals, but it shapes the other responses outlined above and is worth contrasting with the role of the Research, Information and Communications Unit (RICU) in the

UK Home Office. In contrast to the UK, where RICU conducts its own research and

278 Ibid.

279 Phil Costa (Minister for Corrective Services), ‘Deradicalisation Programs to be Introduced Into

NSW Prisons’ (Media Release, 24 February 2010).

280 R v Elomar [2010] NSWSC 10.

281 Costa, above n 279.

282 Costa, above n 279.

223 develops strategies for countering terrorist ‘propaganda’,283 the Australian government focuses on the more neutral and objective task of improving knowledge about violent extremism by commissioning academic research. A panel for commissioning research on violent extremism has been established within the

Attorney-General’s department, and the Australian government is working with academics to better understand the causes of violent extremism and how to counter it effectively through evidence-based policies.284 The Countering Violent Extremism

(CVE) Literature Review, which was jointly commissioned by the NCTC and the

Attorney-General’s department, is a good example of this more academic approach.285

Another example is a report on the ‘Political Participation of Muslims in Australia’,

which was commissioned by DIAC and conducted by the Centre for Research on

Social Inclusion at Macquarie University.286

C Conclusions

Like the UK, Australia has developed a smart power strategy for preventing domestic terrorism that combines coercive counter-terrorism laws with community-based efforts to address the underlying causes of terrorist ideology and radicalisation. In contrast to the UK, Australia’s soft power responses to terrorism have developed at a

283 See Prevent Strategy 2008, above n 235, 44; Prevent Strategy 2011, above n 233, 47-48. See Alan

Travis, ‘Revealed: Britain’s secret propaganda war against al-Qaida’, The Guardian (London), 26

August 2008.

284 Attorney-General’s Department, Countering Violent Extremism, above n 244; Australian

Government, Resilient Communities: Current Activities, above n 259.

285 Nasser-Eddine et al, above n 246.

286 Al-Momani et al, above n 193.

224 slower pace and many initiatives have operated within a broader multiculturalism and

social inclusion agenda, such as the Howard government’s Living in Harmony

program and the Rudd government’s social inclusion portfolio.

Current soft power responses to terrorism in Australia also contrast with the

UK’s Prevent strategy in a number of respects. The Australian government has

maintained a focus on community-based projects and its community policing efforts

are less directly connected with counter-terrorism. In contrast to the negative tasks of

rejecting terrorist ideology and isolating apologists for terrorism, Australia’s soft

power responses to terrorism have focused on positive and inclusive goals such as

community and capacity building, as well as more neutral and objective tasks such as

improving public awareness and commissioning academic research. The next sections

consider the implications that these differences pose for smart power thinking.

III TESTING SMART POWER THINKING: ARE HARD POWER AND

SOFT POWER DISTINCT?

The first component of smart power thinking is that hard power and soft power describe two distinct approaches to influencing behaviour. Compared to the UK, there is a much clearer separation between hard and soft power in Australian counter-

terrorism. This does not discount the problems that the UK experience poses to smart

power thinking, but it does show the importance of answering this question in each

context, rather than assuming that hard and soft power are universally distinct.

Four factors contribute to the greater separation of hard and soft power in

Australian counter-terrorism. The first is that Australia’s soft power responses to

terrorism have focused clearly on positive and inclusive tasks such as community and

225 capacity building. This can be seen in the Howard government’s NAP, which

included such goals as educating communities and building leadership capacity, as

well as in the Rudd government’s social inclusion agenda and the current BCR grants

program. It contrasts with the UK approach, in which community and capacity

building efforts have been confused by the addition of negative and exclusionary

goals such as disrupting violent extremists, isolating apologists for terrorism, and

countering terrorist ideology.287 In addition, whereas the UK government has focused

on identifying ‘at risk’ individuals for the purposes of Channel interventions,288 this

Australian approach is directed more broadly at communities. This creates a clearer separation between hard and soft power because it is clear that the Australian government is pursuing a community-based, social policy agenda. There is a less obvious connection between Australia’s soft power responses to terrorism and the law enforcement tasks of disrupting terrorist activity and identifying terrorist suspects.

A second, related factor is that many of Australia’s soft power responses to terrorism have operated within a broader social policy agenda. Many community projects under the NAP fell under the Howard government’s Living in Harmony program and were not exclusively focused on counter-terrorism.289 Other NAP projects were coordinated by the AHRC as part of its Community Protection of

Human Rights (CPHR) program.290 The Rudd government’s social inclusion agenda

was broadly focused on increasing participation in Australian society and was only

287 Prevent Strategy 2008, above n 235, 31.

288 Prevent Strategy 2011, above n 233, 55-62; Home Office, Channel: Protecting Vulnerable People from Being Drawn Into Terrorism – A Guide for Local Partnerships (Home Office, 2012) (‘Channel’).

289 See Living in Harmony, above n 202.

290 CPPP, above n 222.

226 indirectly related to national security.291 Much of the advisory work guiding these soft

power responses to terrorism has been conducted by independent bodies with a

broader policy focus, including the Social Inclusion Board and the Labor

governments’ multiculturalism advisory councils.292 The current Resilient

Communities program operates independently of Australia’s counter-terrorism law framework. In particular, there is a notable absence of police involvement in the BCR grants program, which contrasts with the heavy police role in overseeing the delivery of the UK’s Prevent strategy.293 This indirect approach, in which soft power is used to prevent terrorism but does not carry an obvious counter-terrorism label, contributes to a greater separation of hard and soft power because community-building projects do not carry the coercive connotations of heavy police involvement and oversight.

The third factor contributing to a greater separation of hard and soft power is the absence of a formalised intervention program for individuals at risk of radicalisation. As described in Chapter Two, the UK’s Channel program is a ‘hybrid’ measure that is difficult to categorise as either a hard or soft power response to terrorism.294 Channel interventions are formally non-punitive, but the program is coordinated by police and it targets individuals for behaviour that could attract serious criminal liability under the UK’s counter-terrorism laws.295 The program has largely

been responsible for allegations that the UK government is using Prevent to spy on

291 See Australian Social Inclusion Board, Social Inclusion in Australia, above n 209.

292 Australian Social Inclusion Board, Social Inclusion in Australia, above n 209; Department of

Immigration and Border Protection, Australian Multicultural Advisory Council, above n 218;

Australian Government, Australian Multicultural Council, above n 220.

293 See Prevent Strategy 2011, above n 233, 99-100.

294 See Chapter Two, Part III(C).

295 See Channel, above n 288, and discussion in Chapter Two, Parts III(C), IV(B).

227 individuals and communities.296 By contrast, Australia has no such program to blur the lines between hard and soft power responses to terrorism. Where individuals at risk of radicalisation have been targeted in Australia, this has been through community projects and community members themselves have identified who is at risk of radicalisation. For example, as part of the 2012/13 BCR grants, the Australian

Multicultural Foundation ran a ‘Peer to Peer’ mentoring project for 10 Muslim youth at risk of radicalisation.297 In contrast to the UK, where police officers play a key role in determining who is at risk of radicalisation,298 the 10 Muslim youth in this case had

been nominated by local Imams, community leaders and Muslim youth leaders.299

This approach is a clearer example of soft power because responsibility for the

projects lies with the communities themselves rather than state institutions, and this is

likely the reason why such programs have avoided damaging perceptions of spying.

The fourth factor is that Australia’s urging violence offences are more

narrowly drafted than the UK’s speech offences in the TA2006.300 As described in

Chapter Two, the UK’s speech offences combine elements of hard and soft power because they are coercive measures that play a broader role in addressing the underlying causes of terrorism.301 This is clear because the UK’s speech offences are

recognised as a key mechanism by which the soft power aims of the Prevent strategy

can be achieved.302 By contrast, the narrower scope of the Australian speech offences

296 See CLG Committee, above n 188, 14-18.

297 BCR Grants 2012-13, above n 261, 2.

298 See Channel, above n 288, 7 [2.3].

299 BCR Grants 2012-13, above n 261, 2.

300 Terrorism Act 2006 (UK) c 11, ss 1-2.

301 Chapter Two, Part III(C).

302 Prevent Strategy 2008, above n 235, 23; Prevent Strategy 2011, above n 233, 26-27, 77.

228 means that there is a clearer divide between hard power responses that target the

incitement of violence on the one hand, and soft power responses that target the

spread of terrorist ideology on the other. The ambit of Australia’s counter-terrorism

laws with regard to speech is still wide, especially because organisations can be

proscribed for ‘advocating’ terrorism,303 but there is generally a much clearer divide

between the targeting of conduct that would fall under the treason or urging violence

offences and the operation of the Resilient Communities program.

A clearer separation between hard and soft power has also likely contributed

to the greater success of Australia’s community-policing efforts in counter-terrorism.

In contrast to the UK, where the involvement of police officers in Prevent work has

created significant suspicion and resentment about soft power responses to

terrorism,304 it seems that community-policing efforts in Australian counter-terrorism have generally been received positively by communities. For example, the Forum on

Australia’s Islamic Relations reported with regard to a program run by the Auburn police service in NSW that

there was undoubtedly an increase in respect between police and youth. The bonds

formed were very strong. There was an increase in understanding by youth about the

role of police and procedures and practices. We improved relations and attitudes

about police and youth from both perspectives leading to more co-operation and

willingness to work together.305

303 Criminal Code Act 1995 (Cth), s 102.8.

304 CLG Committee, above n 188, 52-55.

305 CPPP, above n 222, 19.

229 Such comments contrast dramatically with community responses to the Prevent

strategy in the UK.306 Two factors likely explain these more positive perceptions, and each indicates a clearer separation between hard and soft power. The first relates to the type of community-policing activities in which Australian police have been involved. In the UK, police officers have overseen the delivery of Prevent work in communities and they have coordinated Channel interventions.307 By contrast, the

AFP have given priority to building positive relationships with communities through jointly organised activities. For example, a CLT in Melbourne has set up a Facebook page and is currently working on a short film featuring local Muslim youth.308 The film is designed to challenge negative portrayals of Muslims in the media.309 The

Unity Cup, in which police officers have played football alongside Muslim youth, is

another good example.310 These kinds of activities have seen Australian police taking

on a genuine soft power role: they have formed productive relationships with Muslim

communities around cultural and sporting activities, rather than performing an

oversight function and determining which individuals are at risk of radicalisation.

The second factor relates to the type of police officer who is involved in soft

power responses to terrorism. In contrast to the UK, where counter-terrorism trained

police officers have overseen the delivery of Prevent work,311 the AFP employs

Muslim youth representatives to act as members of CLTs. For example, one member

306 See, eg, CLG Committee, above n 188, 52.

307 Prevent Strategy 2011, above n 233, 99-100; Channel, above n 288, 7.

308 Australian Federal Police, The Australian Federal Police Community (2014)

309 Ibid.

310 AFL Victoria, Unity Cup (2014) .

311 Prevent Strategy 2011, above n 233, 99-100.

230 of a CLT in Sydney is a 23-year old Muslim woman who serves on the Youth

Advisory Council to the NSW Government.312 Amna Karra-Hassan was nominated

for a ‘Young Women of the West Award’ in 2012 for her contributions to Muslim

women in Western Sydney.313 Amna has been described as a ‘positive role model and

proud ambassador for young people, her community and her religion’.314

Little public information is available on the composition of the CLTs, so it is not clear whether this is representative of the AFP’s approach, although the NSW and

Victorian State police have taken a similar approach in employing Youth Liaison

Officers (YLOs), Ethnic Community Liaison Officers (ECLOs) and Multicultural

Liaison Officers (MLOs).315 The involvement of Muslim youth workers in

community policing creates a clearer distinction between the police as a law

enforcement institution and its soft power functions, whilst still creating a useful point

of contact between the police and Muslim communities. This enables police to build

relationships with Muslim communities without encouraging perceptions that they are

‘spying’ on potential terrorists.316 The absence of an intervention program like

Channel also likely helps in this regard, as individuals can participate in community- policing activities without fearing that they will be recommended for support services.

The separation between hard and soft power in Australian counter-terrorism is not complete: the mere involvement of the police in soft power responses to terrorism

312 University of Western Sydney, Amna Karra-Hassan, Co-Founder of the Auburn Tigers Women’s

AFL Team (2012) .

313 Ibid.

314 Ibid.

315 Unlocking Doors, above n 223, 8.

316 As in the UK’s Channel program: see CLG Committee, above n 188, 52-55.

231 blurs the lines to some degree between law enforcement and social policy. Likewise,

the Australian government has noted the role that coercive counter-terrorism laws

play in countering the spread of terrorist ideology on the Internet,317 and soft power

responses to terrorism are expanding into Australian prisons as part of a management

program for terrorism offenders.318 This makes it difficult in a small number of cases to draw a clear line between hard and soft power. It is also important to recognise the importance of other counter-terrorism measures, like the Protect and Prepare strands in the UK’s CONTEST strategy, which cannot neatly be described as either a hard or soft power response.319 The Australian equivalents of the Protect and Prepare strands of CONTEST can be found in the ‘Protection’ strand of the White Paper, and the

‘Response’ and ‘Recovery’ strands of the National Counter-Terrorism Plan.320

Nonetheless, for the reasons described above, there is a relatively clear

conceptual distinction between hard and soft power in Australian counter-terrorism.

This contrasts dramatically with the UK experience, in which there has been

significant confusion over the lines between the Pursue and Prevent strands of

CONTEST, between counter-terrorism and community integration, and within

individual law and policy measures.321 On the one hand, the Australia government has enacted a range of counter-terrorism laws which compel individuals to act in particular ways and deter them from becoming involved in terrorism. On the other

317 See Australian Government, Resilient Communities: Current Activities, above n 259.

318 See Costa; above n 279; Australian Government, Resilient Communities: Current Activities, above n

259.

319 CONTEST 2011, above n 230, 78-102. See Chapter Two, Part III(D).

320 Counter-Terrorism White Paper, above n 228, 33-52; National Counter-Terrorism Plan 2012, above n 237, 13-20.

321 Chapter Two, Part III.

232 hand, it has developed soft power responses to terrorism which focus on capacity

building, improving public awareness, and improving relationships between the police

and Muslim communities.

It is not clear why soft power responses to terrorism in Australia have differed

to those in the UK and seemingly proved less problematic. To some extent, these

differences in approach might simply be explained by different policy choices – such

as whether to rely on heavy police oversight of community programs. A more

significant factor may be that Australia has not experienced a serious Islamist terrorist

attack on its own soil. This lower overall threat level may have given the Australian

government more freedom to focus on long-term, capacity-building options rather

than more targeted responses such as Channel interventions.322 In addition, because

Australia has a lower relative Muslim population,323 its soft power responses to

terrorism may generally be less pervasive throughout society. This may have limited

any problems with Australia’s soft power responses to a small number of cases, such

that they do not receive the same critical attention as the Prevent strategy in the UK.

The contrasting UK and Australian experiences suggest that it is not possible

to rely on any general rule that hard and soft power are distinct. Different

governments will implement different policies with a different degree of separation

between hard and soft power. Nye would likely agree with this sentiment, as he notes

322 Channel, above n 288.

323 See Scott Poynting and Victoria Mason, ‘“Tolerance, Freedom, Justice and Peace”?: Britain,

Australia and Anti-Muslim Racism Since 11 September 2001’ (2006) 27(4) Journal of Intercultural

Studies 365, 370-371; Scott Poynting and Victoria Mason, ‘The New Integrationism, The State and

Islamophobia: Retreat from Multiculturalism in Australia’ (2008) 36 International Journal of Law,

Crime and Justice 230, 231.

233 that it can sometimes be difficult to distinguish hard and soft power in practice.324 The

problem with Nye’s approach is that he largely dismisses these complexities in favour

of a ‘shorthand’ dichotomy.325 By contrast, the UK and Australian experiences of

counter-terrorism suggest that identifying and resolving these complexities is an

important task. There is little concrete information available on the success of

Australia’s soft power responses to terrorism, but it seems that they have been

received more positively by communities than the UK’s Prevent strategy.326 If this is

the case, then it seems that governments can achieve greater success in their counter-

terrorism efforts by achieving a clear distinction between hard and soft power. A clear

distinction between hard and soft power is not, however, something that can be

assumed or taken for granted. In other words, the first component of smart power

thinking is not an accurate theoretical descriptor of what is the case in counter-

terrorism, but it provides a useful policy goal that governments should aim to achieve.

Governments should identify the complex and significant ways in which hard and soft

power can be blurred, and devise ways to ensure a clearer separation between them.

The Australian experience suggests a number of ways in which a greater

separation between hard and soft power might be achieved. First, governments should

focus on positive and inclusive goals for soft power responses to terrorism, such as

community building and improving public awareness, rather than negative and

exclusionary goals such as disrupting extremists and rejecting ideology. Secondly,

they can subsume soft power responses to terrorism within a wider social policy

324 Nye, Soft Power, above n 181, 7, 9, 65-65; Joseph S Nye Jr, The Future of Power (Public Affairs,

2011) 25.

325 Nye, Soft Power, above n 181, 8.

326 See CPPP, above n 222, 19.

234 agenda. Thirdly, they should avoid heavy police oversight of soft power responses to terrorism. Fourthly, they should avoid police-led interventions for individuals at risk of radicalisation. Fifthly, any speech offences should be narrowly drafted so that they target the incitement of violence. Sixthly, police should give priority to forming productive relationships with communities rather than overseeing the delivery of soft power responses to terrorism and determining who is at risk of radicalisation. Lastly, community policing can benefit from the involvement of Muslim youth workers.

IV IS SOFT POWER MORALLY PREFERABLE TO HARD POWER?

This section considers three ways in which counter-terrorism laws undermine autonomy, as raised in Chapter Two: by creating suspect communities, by limiting political and religious choice, and by intervening before individuals have had an opportunity to make choices about their own lives. On each of these grounds, it compares whether Australia’s soft power responses to terrorism are more consistent with autonomy. This section also raises another important theme: the idea that hard power can protect autonomy in a way that soft power cannot. As with the distinction between hard and soft power, the contrasting UK and Australian experiences of counter-terrorism show that it is not possible to apply a general rule as to whether soft power is morally preferable to hard power. However, the Australian experience does provide some insights into how soft power responses to terrorism might be devised so that they preserve and expand rather than limit free choice.

235 A Suspect Communities

As described in Chapter Two, one way in which hard power legal responses to

terrorism undermine autonomy is by reinforcing prejudiced stereotypes of Muslim

communities as inherently suspicious.327 The disproportionate impact of counter-

terrorism laws on Muslim communities affects the ability of Muslims to determine the

course of their own lives because they feel alienated from the public sphere, branded

by the rest of society as potential terrorists, and haunted by the ‘gaze of counter-

terrorism policing’.328 This has certainly been the case in Australia, where the

expansion of broadly drafted counter-terrorism powers has generated significant fear

and uncertainty in Muslim communities. The Parliamentary Joint Committee on

Intelligence and Security (PJCIS) reported in 2006 that Australian Muslims felt

unfairly targeted by counter-terrorism laws since 9/11:

Over the past five years Islamic and other community based organisations have

consistently raised their concerns about a rise in generalised fear and uncertainty

within the Arab and Muslim Australian communities. During this review, it was

reiterated that anti-terrorism laws impact most on Arab and Muslim Australians who

feel under greater surveillance and suspicion. The Committee is especially concerned

by reports of increased alienation attributed to new anti terrorist measures, which are

seen as targeting Muslims and contributing to a climate of suspicion.329

327 Chapter Two, Part IV(A).

328 Christina Pantazis and Simon Pemberton, ‘From the “Old” to the “New” Suspect Community’

(2009) 49(5) British Journal of Criminology 646, 653.

329 Commonwealth, Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter Terrorism Legislation (December 2006) 24 [3.5] (‘PJCIS’). See also Commonwealth,

236

Many contributors to the PJCIS and Sheller Committee inquiries gave evidence of

these perceptions amongst Australia’s Muslim communities.330 Of particular concern were the ASIO questioning and detention powers, which Muslim communities believed were ‘principally aimed at Muslims’,331 and the proscription powers, which have been overwhelmingly used to criminalise Muslim organisations.332 There is no evidence of systemic abuse of counter-terrorism powers against Muslim communities, so these perceptions are in large part only perceptions.333 However, the fact that all

individuals convicted of terrorism offences in Australia are Muslim, and that 18 of the

19 organisations currently proscribed as terrorist organisations are Muslim

organisations,334 shows that there is some factual basis for this fear and suspicion.

In contrast to the UK,335 there is little evidence that soft power responses to terrorism in Australia have contributed to perceptions of Muslims as inherently suspicious. The Howard government’s MCRG is perhaps the only example of a soft

Parliamentary Joint Committee on ASIO, ASIS and DSD, ASIO’s Questioning and Detention Powers:

Review of the Operation, Effectiveness and Implications of Division 3 of Part III in the Australian

Security Intelligence Organisation Act 1979 (November 2005) 77-79; Sheller Committee, above n 44,

[10.97]; Unlocking Doors, above n 223; Isma!, above n 223; Williams, ‘A Decade of Australian Anti-

Terror Laws’, above n 3, 1172; Lynch and McGarrity, above n 8.

330 See, PJCIS, above n 329, 23-29; Sheller Committee, above n 44, 67, 111, 141-143.

331 PJCIS, above n 329, 25 [3.6]. See also Parliamentary Joint Committee on ASIO, ASIS and DSD,

ASIO’s Questioning and Detention Powers, above n 329, 77.

332 PJCIS, above n 329, 26; Sheller Committee, above n 44, 143.

333 PJCIS, above n 329, 25-26.

334 Australian Government, Listed Terrorist Organisations

Listedterroristorganisations/Pages/default.aspx>.

335 See Chapter Two, Part IV(A).

237 power response to terrorism in Australia that was criticised for its heavy focus on

Muslim communities.336 The simplest explanation for this lack of suspicion and resentment is that the Australian government has focused less directly on Muslim communities. Many of the NAP and BCR projects, for example, have been non- denominational and targeted broadly at the general public.337 Nonetheless, there has

still been a significant focus on Muslim communities under the BCR grants and other

initiatives,338 so this does not fully explain the lack of criticism in Australia compared to the UK. There are two more likely reasons. The first is that the Australian government did not make the same mistake of explicitly mentioning Muslim communities in performance indicators and funding allocations.339 The second reason,

which has greater significance for smart power thinking, relates to the degree of

separation between hard and soft power. Because the Australian government has

maintained a clearer separation between hard and soft power, Muslim communities in

Australia have less reason to be suspicious about why they are being targeted with

soft power responses to terrorism. It appears that Muslim communities can be

targeted disproportionately with soft power responses to terrorism, so long as the

government clearly separates these soft power responses from hard power responses

in its counter-terrorism laws.

336 See Al-Momani et al, above n 193, 46.

337 See BCR Grants 2011-12, above n 262; BCR Grants 2012-13, above n 261; DIMA Annual report

2005-06, above n 192, 224.

338 See, eg, CPPP, above n 222, 19.

339 See CLG Committee, above n 188, 50, Ev 101; Department for Communities and Local Government

(UK), NI35: Building Communities Resilient to Violent Extremism – Assessment Framework 1 (2008)

238 With regard to creating suspect communities, then, Australia’s soft power

response to terrorism are more consistent with autonomy than its hard power counter-

terrorism laws. This lends some support to this aspect of Nye’s theory, and yet the

UK’s experience with the Prevent strategy still provides significant evidence to the

contrary. As with the first component of smart power thinking, this shows that it is not

possible to apply any general rule that ‘a preference for soft means can be morally

justified’.340 Governments cannot simply assume, as Nye suggests,341 that soft power will mitigate the dangers of coercion because there is something in the nature of soft power which makes it inherently more consistent with autonomy. Rather, the important task for governments is to devise soft power responses to terrorism in such a way that they do not undermine autonomy. If governments can achieve this in their soft power responses to terrorism, then soft power will not aggravate the problems created by hard power and it may help to mitigate those problems. With regard to suspect communities, the Australian experience of counter-terrorism suggests this is possible if governments avoid explicitly focusing on one community relative to others, particularly in the administration of community-based projects, and if they maintain a clear distinction between their hard and soft power responses to terrorism.

B Limiting Political and Religious Choice

A second way in which counter-terrorism laws undermine autonomy is by reducing the scope of individuals to freely determine their political and religious views. As in the UK, Australia’s counter-terrorism laws significantly limit the capacity for

340 Joseph S Nye Jr, The Powers to Lead (Oxford University Press, 2008) 142.

341 Ibid 43-44.

239 individuals to freely determine their own views about politically and religiously

motivated conduct. This can be seen in the political and religious motive requirement

contained in the Australian definition of terrorism,342 the treason offences in div 80 of the Criminal Code,343 and in the proscription of organisations for ‘advocating’ terrorism.344 These Australian laws are more narrowly drafted than the speech offences in the UK,345 but they nonetheless act as a significant deterrent against

individuals holding and expressing certain views about politics and religion.

In contrast to the UK’s Prevent strategy, Australia’s soft power responses to

terrorism do not contribute to the problems of hard power in this regard. This is

largely because Australia’s soft power responses to terrorism encourage the non-

violent expression of extremist ideas,346 whereas the Prevent strategy aims to challenge the non-violent expression of extremist ideas.347 By encouraging the non- violent expression of ideas, Australia’s soft power responses to terrorism provide a greater number of outlets for the free expression of political and religious views. This is also reflected in Australia’s commitment to social inclusion, which contrasts with the UK government’s desire to isolate and exclude individuals who express extremist ideas.348 It is also reflected in Australia’s commitment to educating citizens about

342 Criminal Code Act 1995 (Cth), s 100.1(b).

343 Criminal Code Act 1995 (Cth), s 80.1AA.

344 Criminal Code Act 1995 (Cth), s 102.8.

345 Terrorism Act 2006 (UK), ss 1-2.

346 Australian Government, Resilient Communities: Countering Violent Extremism Strategy, above n

247.

347 CONTEST 2, above n 243, 13.

348 Prevent Strategy 2008, above n 235, 31.

240 national security issues, government policy, and human rights.349 These factors, along

with the absence of a formal intervention program like Channel, create significantly

greater scope for Australian citizens to voice and discuss controversial views about

politics and religion without fear that they will be targeted with state support services.

Once more, the contrasting UK and Australian experiences demonstrate that it

is not possible to apply any general rule as to whether soft power is morally preferable

to hard power. Soft power responses to terrorism may or may not preserve political

and religious choice, depending on the form that they take. Where soft power

responses to terrorism preserve or expand choice, such as by encouraging alternative

forms of expression, they are consistent with and can enhance autonomy; where they

limit free choice (such as by encouraging communities to adopt interpretations of

Islam that are consistent with Western ideals) they will reduce autonomy.350

A similar distinction is raised in a theoretical critique of soft power by Steven

Lukes, who argues that Nye’s definition of soft power is too broad in encompassing processes that have both empowering and disempowering effects.351 According to

Lukes,

349 See National Counter-Terrorism Committee, National Security Public Information Guidelines

(Australian Government, June 2010); Australian Government, Resilient Communities: Counter-

Terrorism Laws, above n 270; Australian Government, Resilient Communities: Keeping Australia Safe, above n 270; Australian Government, Resilient Communities: What Is Violent Extremism?, above n

270; Australian Government, Resilient Communities: Your Rights, above n 271.

350 As in the UK’s Prevent strategy: see Chapter Two, Part IV(B).

351 Steven Lukes, ‘Power and the Battle for Hearts and Minds: On the Bluntness of Soft Power’ in Felix

Berenskoetter and M J Williams, Power in World Politics (Routledge, 2007) 83, 95.

241 ‘the ability to shape the preferences of others’ is a troublingly obscure phrase which

fails to discriminate between those causal processes which limit and sometimes

undermine individuals’ capacities to judge and decide for themselves and those which

require, facilitate and expand such capacities … When analysing practices and

arrangements that involve the ‘shaping of preferences’ or subjective interests, we

need, at the very least, to distinguish between those which are, in the sense indicated,

disempowering and those which are empowering in their effects.352

Put another way, the ‘softness’ of a policy measure is an unreliable indicator of its

consistency with autonomy, because that policy might equally constrain or expand

free choice. As such, to think in terms of a general rule – that soft power is morally

preferable to hard power because it protects autonomy to a higher degree – is misleading, and it obscures the potential dangers of soft power responses to terrorism.

A better approach would be to ask, with respect to each soft power response to terrorism, ‘is this soft power response consistent with autonomy, and if not, how can this be remedied?’. The Australian experience suggests that soft power responses to terrorism will preserve free choice to a higher degree if they encourage non-violent expression of extremist ideas, if they focus on improving social cohesion, and if they avoid formal intervention programs for individuals ‘at risk’ of radicalisation.

C Early Interventions

A third way in which counter-terrorism laws undermine autonomy is by intervening before individuals have had an opportunity to choose different courses of action.

352 Ibid.

242 Many of the UK’s counter-terrorism laws have been described and critiqued as a form

of ‘pre-crime’ because they rely on predictions about future behaviour, thereby

denying individuals a window of moral opportunity in which they are free to consider

committing a crime before choosing to remain innocent.353 This is also certainly the case in Australia, where broad preparatory offences combine with inchoate liability such that individuals have received penalties nearing 30 years’ imprisonment for conduct that caused no direct harm to others.354

As discussed in Chapter Two, the UK’s Channel intervention program impacts

on autonomy in an analogous way by denying individuals an opportunity to explore

and reject controversial bodies of political and religious thought.355 This is made

worse by the extension of Prevent work to encompass non-violent ideas and the

targeting of young children under the Channel intervention program.356 By contrast, the absence of any formal intervention program in Australia means that the

Australia’s soft power responses to terrorism are significantly more consistent with autonomy in this regard. Community projects in Australia have targeted ‘at risk’ individuals,357 including children as young as 12,358 but these projects have been

353 Chapter Two, Part IV(C). See Zedner, ‘Preventive Justice or Pre-Punishment?’, above n 61; Zedner,

‘Pre-Crime and Post-Criminology?’, above n 61; Zedner, ‘Fixing the Future?’, above n 61; McCulloch and Pickering, above n 61.

354 R v Elomar [2010] NSWSC 10.

355 Chapter Two, Part IV(C).

356 See Chapter Two, Part IV(C). See especially Association of Chief Police Officers, National

Channel Referral Figures (2014)

NationalChannelReferralFigures.aspx>.

357 BCR Grants 2012-13, above n 261, 2.

243 developed and coordinated by communities rather than the police through a formal

intervention program, and they are less obviously connected to counter-terrorism.

This ‘ground up’, community-led approach was reflected in the AHRC’s approach to

the CPPP:

Consistent with international human rights principles, the Australian Human Rights

Commission promotes the use of a participatory approach to program development

and delivery. This requires actively engaging those who are intended to be affected

by the particular project or program and recognising that they are best placed to

identify what needs to be done.359

With respect to early interventions in Australian counter-terrorism, soft power is

therefore more consistent with autonomy than hard power – but again, this does not

prove that any such general rule can be applied, as the UK experience still provides

significant evidence to the contrary. Rather, the Australian experience simply

suggests that soft power responses to terrorism can preserve autonomy in this regard

if they are devised accordingly. For this to be the case, a police-led intervention

program for ‘at risk’ individuals should be avoided, and programs for vulnerable

youth should be developed and run by communities rather than state institutions.

358 See ibid 2 (Burwood Council Project for students in years six to eight; City of Newcastle project for young people aged 16-17); BCR Grants 2011-12, above n 262, 2 (Burwood Council project for young people aged 12-14; Centre for Multicultural Youth project for secondary school students) 4 (Horn of

Africa Relief Development Agency project for Somali youth aged 16-24) 6 (North Melbourne Football

Club project for 15-25 year olds) 7 (Spectrum Migrant Resource Centre project for young people 18-

28) 8 (UNSW Youth Centre project for young people aged 13-25).

359 CPPP, above n 222, 29-30.

244

D Hard Power and Autonomy

A final point raised by the Australian experience of counter-terrorism is that hard

power can protect autonomy in important ways that soft power cannot. In contrast to

the UK, Australia’s approach shows that hard power can play an important role in

preserving autonomy by protecting individuals from abuses of state power and from

discrimination by other members of society. This could be seen in the Unlocking

Doors project conducted by HREOC, which was designed to improve relationships

between police and Muslim communities in NSW and Victoria.360 HREOC conducted

forums with Muslim community members who expressed concern about the

discriminatory use of police powers and increased verbal and physical abuse from

other members of society.361 A key aim of the project was to inform community members about the legal remedies available if they experienced racial discrimination:

Unlocking Doors aims primarily to address racial and religious hatred and abuse.

This incorporates the types of racial and religious hatred or vilification as defined

under the Racial Discrimination Act 1975 (Cth) (RDA) and the state anti-

discrimination laws, as well as criminal acts of inciting racist violence under criminal

laws.362

360 See Unlocking Doors, above n 223, 6.

361 See ibid 7.

362 Ibid 11. See also ibid 6 (Aim 2: ‘inform community members of the legal avenues and services available to them as victims of racial and/or religious hatred and abuse including state and federal anti- discrimination laws and complaints processes and police processes’).

245 Anti-discrimination remedies and hate crime offences are coercive powers, so they

can be classified under Nye’s definition of hard power,363 and yet they can perform an

important role in protecting autonomy. They do so by improving the capacity of

individuals to determine the course of their lives free from discrimination. A more

specific example in the counter-terrorism context is the urging violence offences in

div 80 of the Criminal Code.364 Those offences provide significant penalties for inciting violence against an individual or group that is distinguished on the basis of race, religion, ethnicity or political opinion.365 The offences would be triggered, for

example, if an individual called for revenge against Muslims in Australia because

they should be considered terrorists who helped to perpetrate the 9/11 attacks.

Another example in the counter-terrorism context is the coercive powers of the

Independent Monitor, such as compelling witnesses to appear for questioning.366 The

Independent Monitor performs an important accountability task in ensuring that

Australia’s counter-terrorism laws include appropriate safeguards and remain

necessary and proportionate.367 While in practice the reports of the Independent

Monitor have largely been ignored,368 the office nonetheless has the capacity to

benefit autonomy by helping to limit the scope and impact of Australia’s counter-

terrorism laws. This is despite the fact that the coercive powers of the office can be

classified as examples of hard power.

363 Nye, Soft Power, above n 181, 5; Nye, Bound to Lead, above n 181, 31.

364 Criminal Code Act 1995 (Cth), ss 80.2A-80.2B.

365 Criminal Code Act 1995 (Cth), ss 80.2A(1)(c), 80.2A(2)(c), 80.2B(1)(d), 80.2B(2(d).

366 Independent National Security Legislation Monitor Act 2010 (Cth), pt 3.

367 Independent National Security Legislation Monitor Act 2010 (Cth), ss 3, 6(b).

368 Blackbourn, ‘Anti-Terrorism Law Reform: Now or Never?’, above n 94; Blackbourn, ‘Non- response reduces security monitor’s role to window-dressing’, above n 94.

246 This does not discount the serious impact that other counter-terrorism laws have on autonomy. Rather, it suggests that hard power, like soft power, may or may not preserve autonomy, depending on the form that it takes. When this becomes clear

– that hard power may or may not be consistent with autonomy, depending on the form that it takes, and that soft power may or may not be consistent with autonomy, depending on the form that it takes – Nye’s simplistic idea that soft power is morally preferable to hard power breaks down significantly. The only relevant indicator in each case is whether a particular law or policy measure preserves or undermines autonomy. The ‘hardness’ or ‘softness’ of a law or policy measure is irrelevant to this question, and so each law or policy measure should simply be considered on its own merits. Indeed, in contrast to Nye’s theory, it seems that hard power has a greater capacity to preserve and protect autonomy than soft power. Hard power can protect individuals from abuse and discrimination in direct and immediate ways by providing coercive remedies. Soft power may be consistent with and even enhance autonomy, but it cannot prevent an individual’s autonomy from being undermined through acts of abuse and discrimination, because it does not have the same coercive force.

V ARE HARD POWER AND SOFT POWER COMPLEMENTARY?

The third component of smart power thinking is that hard power and soft power are complementary. This is reflected in Australia’s combination of counter-terrorism laws with community-based efforts to counter terrorist ideology and radicalisation. In

Nye’s theory, this idea comprises three related ideas or assumptions: that hard and soft power are compatible, that combining hard and soft power is effective, and that it

247 is possible for governments to develop smart power strategies by rebalancing their

existing reliance on hard power.369

A Compatibility of Hard Power and Soft Power

In contrast to the UK, where the combination of hard and soft power has directly

undermined the success of Prevent work in communities,370 there is no similar

evidence that hard and soft power directly conflict in Australian counter-terrorism.

The likely explanation for this better working relationship is that Australia has

maintained a significantly clearer distinction between its hard and soft power

responses to terrorism, so its soft power responses have not been tainted by a close

and direct association with hard power. This suggests that the first and third

components of smart power thinking are closely related: if a clear distinction between

hard and soft power is maintained, then the two approaches will work more

effectively in tandem.

At the same time, there is still a definite incongruity between the contrasting

approaches found in Australia’s hard and soft power responses to terrorism. Australia

has a long list of broadly drafted counter-terrorism laws, and it is clear that these laws

have contributed to a sense of fear and alienation within Australia’s Muslim

communities.371 Even if these counter-terrorism laws are not directly compromising

369 See Chapter One, Part I(C).

370 See Chapter Two, Part V(A).

371 See PJCIS, above n 329, 24 [3.5]; Parliamentary Joint Committee on ASIO, ASIS and DSD, ASIO’s

Questioning and Detention Powers, above n 329, 77-79; Sheller Committee, above n 44, [10.97];

248 soft power responses to terrorism, they may still indirectly undermine the success of

those soft power responses by damaging social cohesion. The Sheller Committee

argued that Australia’s counter-terrorism laws ‘have the potential to cause long-term

damage to the Australian community’.372 In this respect, the Australian government’s hard and soft power responses to terrorism appear to be working at cross-purposes.

B Effectiveness of Combining Hard Power and Soft Power

Because the Australian government has only recently moved towards a comprehensive national strategy for countering violent extremism, it is too early to know whether its use of soft power has proved effective in preventing terrorism. On the other hand, it seems that Australia’s soft power responses to terrorism have so far been received positively by communities.373 This gives some cause for optimism. If the Australian government decides to let its most controversial counter-terrorism laws expire,374 and if it invests significantly more funds into soft power, it may yet achieve a balanced and effective smart power strategy for preventing domestic terrorism.

Even if there were a significant reduction in the threat level in the near future, however, it would be extremely difficult to prove that this occurred as a result of

Unlocking Doors, above n 223; Isma!, above n 223; Williams, ‘A Decade of Australian Anti-Terror

Laws’, above n 3, 1172; Lynch and McGarrity, above n 8.

372 Sheller Committee, above n 44, 142 [10.97]; See also Williams, ‘A Decade of Australian Anti-

Terror Laws’, above n 3, 1173.

373 CPPP, above n 222, 19.

374 ASIO’s Questioning and Detention Powers, Control Orders and Preventative Detention Orders:

Australian Security Intelligence Organisation 1979 (Cth), s 34ZZ; Criminal Code Act 1995 (Cth), ss

104.32, 105.53.

249 Australia’s investments in soft power. As discussed in Chapter Two, it is extremely

difficult to quantify whether education programs, public awareness campaigns and

other soft power responses to terrorism are contributing to a reduction in terrorist

activity. It is not sufficient to judge the success of such programs simply by the

money or effort invested into them,375 as this says nothing about the impact that those

programs are having on communities. In this respect, it may never be possible to

accurately quantify the extent to which smart power has reduced terrorism in

Australia.

This will likely prove an ongoing problem in domestic counter-terrorism, and

it suggests that additional research is needed in this area – both into the current impact

of soft power strategies and how best to gauge the success of those strategies. For

example, statistical research could analyse the level of support for extremist views in

Australian society over time, or surveys might be used to analyse the views of

individuals both before and after their participation in a community project or de-

radicalisation program.

C Capacity to Rebalance Hard Power Strategy

To date, Australia’s experience confirms the idea raised in Chapter Two with regard

to UK counter-terrorism that governments are unlikely for political and security

reasons to reduce their reliance on hard power.376 This is reflected in the Rudd government’s minimal efforts to amend the Howard government’s counter-terrorism

375 As in the UK government’s Channel program: CLG Committee, above n 188, Ev 72-73. See Chapter

Two, Part V(B).

376 Chapter Two, Part V(C).

250 laws, and more broadly in the lack of effective review of Australia’s counter-terrorism

laws over time. As George Williams notes, parliamentary and independent review of

Australia’s counter-terrorism laws has suffered from a lack of political commitment:

[W]here effective reviews have been conducted, the level of political commitment to

implementing their recommendations has been low. Findings even of high-level,

expert panels have been ignored or only implemented some years after a change of

government. The common thread of Australia's anti-terror laws is thus that such laws

have often been enacted in undue haste and reviewed and repaired sometimes at

leisure, or often not at all.377

Given this record, it would likely take a significant change in political culture for

Australia to achieve an effective balance between its hard and soft power responses to

terrorism. This does not mean that Nye is wrong in suggesting there is a point at

which hard and soft power can be balanced effectively,378 but it does suggest that the solution is not as simple as readjusting law and policy measures until the right blend is found. Due to political and security concerns in the counter-terrorism context, an effective balance between hard and soft power can be incredibly difficult to achieve.

The Australian experience raises two more interesting points in this regard.

The first is that counter-terrorism laws may still undermine soft power responses to terrorism even if they are amended to be proportionate and applied fairly by police.

377 Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 3, 1168. See also Lynch, ‘the Impact of Post-Enactment Review on Anti-Terrorism Laws’, above n 150, 65-67; Blackbourn, ‘Anti-Terrorism

Law Reform: Now or Never?’, above n 94; Blackbourn, ‘Non-response reduces security monitor’s role to window-dressing’, above n 94.

378 Nye, The Future of Power, above n 324, 225.

251 As Williams argues, the very fact that counter-terrorism laws are an exceptional form

of crime control means that they have the potential to undermine social cohesion:

Even where anti-terror laws are applied fairly and drafted appropriately, their

exceptional nature means that there will always be a risk that they will produce a

community counter-reaction. This is turn can contribute to radicalisation and the

growth of domestic extremism.379

An obvious response would be to say Australia could avoid this risk by repealing its

counter-terrorism laws and relying solely on the ordinary criminal law, although this

is an unrealistic argument considering that counter-terrorism laws have become a

permanent feature of the legal landscape in most Western nations.380 This also raises the second point – more significant for smart power thinking – which is that governments may be morally and legally obligated to use hard power in ways that undermine soft power, even if this is an ineffective method for addressing the threat of terrorism in the long-term. Australia did not simply choose to enact counter- terrorism laws in response to 9/11; it was legally bound to do so by Security Council

Resolution 1373.381 This included offences targeting the preparation of terrorism and,

later under Security Council Resolution 1624, offences targeting the incitement of

379 Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 3, 1173.

380 See, eg, Terrorism Act 2000 (UK) c 11, Terrorism Act 2006 (UK) c 11, Terrorism Prevention and

Investigation Measures Act 2011 (UK) c 23, Anti-Terrorism Act, SC 2001, c 41, Terrorism Suppression

Act 2002 (NZ).

381 SC Res 1373, UN SCOR, 57th sess, 4385th mtg, UN Doc S/RES/1373 (28 September 2001). See

Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 3, 1162.

252 terrorism.382 The Australian government might have chosen to ignore those resolutions, but there is an important moral dimension to counter-terrorism laws which strengthened the government’s reasons for complying. By enacting strong counter-terrorism powers, the Australian government can demonstrate that it is joining the international community in denouncing terrorism as a serious crime.383

Justice Whealy of the NSW Supreme Court has made a similar point with regard to terrorism prosecutions. Writing extra-judicially, Whealy J explained that courts are bound to punish individuals according to the full extent of the law, even if this has wider, detrimental effects on society such as increasing radicalisation:

[T]here is some danger that the imposition of stern sentences, no matter that it may be

completely justified, has the capacity to inflame resentment and may encourage

young Muslim men into an extremist position. But the court’s duty is nevertheless a

duty to denounce serious criminality. It would fail in its duty to the community if it

did not do so.384

Achieving an effective smart power strategy in counter-terrorism is therefore not as

simple as removing or amending hard power legal responses wherever these conflict

with soft power, community-based approaches. Governments may be required to use

hard power in ways that conflict with soft power. As members of the international

community they are morally and legally obligated to adopt broad counter-terrorism

382 SC Res 1624, UN SCOR, 60th sess, 5261st mtg, UN Doc S/RES/1624 (14 September 2005).

383 Williams, ‘A Decade of Australian Anti-Terror Laws’, above n 3, 1162-1163.

384 Justice Anthony Whealy, ‘Terrorism and the Right to a Fair Trial: Can the Law Stop Terrorism? A

Comparative Analysis’ (Speech delivered at the British Institute of International and Comparative Law,

London, April 2010) 36.

253 powers and to prosecute individuals to the full extent that the law permits, even if this

has wider and counter-productive social effects. If Australia fails to achieve an

effective smart power strategy, this may in part be a consequence of the values

inherent in its legal and democratic system.

VI CONCLUSIONS

While Australia has not experienced a terrorist attack on its own soil, it has enacted a

comprehensive range of hard and soft power responses to terrorism which provide an

important testing ground for Nye’s theory. In contrast to the UK, Australian counter-

terrorism generally conforms to the three components of smart power thinking. It is

therefore difficult to draw any general lessons from these two case studies about the

difference and relationship between hard and soft power, although it seems that the

Australian government has experienced greater success with its soft power responses

to terrorism. This suggests that smart power thinking is not a useful theoretical

descriptor of what is the case in counter-terrorism, but it can provide useful policy goals that governments should aim to achieve in devising counter-terrorism strategies.

With regard to the first component of smart power thinking, there is generally

a clear separation between Australia’s hard power legal responses to terrorism and its

soft power responses such as community projects and public awareness campaigns.

Even Australia’s community policing efforts are relatively separate from its hard

power legal responses to terrorism, because the AFP have jointly organised activities

with Muslim communities and employed Muslim youth workers to work on CLTs.

Two areas in which it is difficult to separate hard and soft power neatly, which echoes

254 the UK experience,385 are the regulation of terrorist ideology on the Internet and the rehabilitation of offenders for terrorism offences. These two areas may require ongoing efforts by the Australian government to separate hard and soft power more clearly. It seems that a clearer separation between hard and soft power has contributed to less suspicion and resentment about Australia’s soft power responses to terrorism, as well as a better working relationship between hard and soft power.

With regard to the second component of smart power thinking, Australia’s soft power responses to terrorism are significantly more consistent with autonomy compared to its hard power counter-terrorism laws. In contrast to the UK, Australia’s soft power responses to terrorism have not reinforced prejudiced stereotypes of

Muslim communities and they have been designed to expand choice and educate communities. In particular, there is no formal intervention program like Channel in which individuals are placed on state support programs for expressing extremist ideas.

This lends some support to Nye’s theory, although it more accurately suggests that soft power responses to terrorism can preserve autonomy if they are devised accordingly. The lack of suspicion and resentment surrounding Australia’s soft power responses to terrorism suggests that this is a positive goal which governments should aim to achieve so that soft power responses to terrorism mitigate the negative effects of counter-terrorism laws. Soft power responses to terrorism are not necessarily more consistent with autonomy than hard power responses to terrorism, but they can be devised in such a way that they preserve and expand rather than limit free choice.

With regard to the third component of smart power thinking, there is no evidence that Australia’s counter-terrorism laws have directly undermined its soft power responses to terrorism, but there is certainly an incongruity between Australia’s

385 See Chapter Two, Part III(A).

255 broadly drafted counter-terrorism laws and its efforts to improve social cohesion and

prevent radicalisation. In this respect, the Australian experience echoes the UK’s

experience with the Prevent strategy. Both case studies suggest there is an inherent

tension in the idea of combining two contrasting approaches to preventing terrorism.

It is too early to tell whether the combination of hard and soft power in

Australian counter-terrorism has proved effective, although the Australian experience

provides some evidence that a smart power strategy may prove effective in preventing

terrorism if it conforms to Nye’s theory. For this to be the case, and to give itself the

best chance of achieving a balanced and effective smart power strategy, the Australian

government should invest more funds into soft power and let its most controversial

counter-terrorism powers lapse when they are due to expire in coming years.386

As in the UK, however, the Australian experience to date suggests that governments are unlikely for political and security reasons to reduce their reliance on hard power. Indeed, and somewhat paradoxically, the Australian experience suggests that there may be legal and moral reasons why governments are bound to use hard power in ways that undermine soft power. This confirms the idea, raised in Chapter

Two with regard to UK counter-terrorism,387 that an effective smart power strategy in

domestic counter-terrorism may be more of an ideal than a potential reality.

The contrasting UK and Australian experiences suggest that Nye’s three core

ideas about smart power are not reliable indicators of what is the case in domestic

counter-terrorism. Counter-terrorism measures will prove these statements false as

386 ASIO’s Questioning and Detention Powers, Control Orders and Preventative Detention Orders:

Australian Security Intelligence Organisation 1979 (Cth), s 34ZZ; Criminal Code Act 1995 (Cth), ss

104.32, 105.53.

387 Chapter Two, Part VI.

256 often as they will prove them true. What can be drawn from the Australian experience, however, is some cause for optimism that a counter-terrorism strategy will prove more effective if it complies with these three statements. If hard and soft power are distinct, if soft power preserves autonomy, and if hard and soft power work effectively in tandem, then it seems that a counter-terrorism strategy can more effectively prevent terrorism without engendering further suspicion and resentment.

This lends some support to Nye’s theory but it suggests a more complex approach. Governments should not take it for granted that Nye’s three ideas about smart power thinking are true, and engage in simplistic rhetoric about supplementing hard power with soft power. Rather, they should test their current policies against the three components of smart power thinking, and devise ways to ensure that these three statements are reflected in law and policy. Whereas Nye raises and then discounts a range of tensions, problems and complexities in favour of three shorthand rules, the key to an effective smart power strategy lies in identifying and resolving these more complex issues. A smart power strategy will truly be ‘smart’ if it is based on a complex rather than reductive understanding of the difference and relationship between hard and soft power.

257

PART TWO: COUNTER-INSURGENCY

258 4

SMART POWER THINKING IN CLASSICAL COUNTER-

INSURGENCY

Introduction

There should be in the whole of the government’s approach an adroit and judicious

mixture of ruthlessness and sympathy.1

- Robert Thompson, Defeating Communist Insurgency (1966)

The recent conflicts in Iraq and Afghanistan have revived significant interest in counter-insurgency.2 Counter-insurgency is an approach to irregular warfare that

1 Robert Thompson, Defeating Communist Insurgency: Experiences from Malaya and Vietnam (Chatto

& Windus, 1974) 146.

2 See, eg, Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern Warfare (Osprey,

2008); John A Nagl, Learning to Eat Soup With a Knife: Counterinsurgency Lessons from Malaya and

Vietnam (University of Chicago Press, 2005); Paul B Rich and Isabelle Duyvesteyn (eds), The

Routledge Handbook of Insurgency and Counterinsurgency (Routledge, 2012); John Mackinlay, The

Insurgent Archipelago: From Mao to Bin Laden (Columbia University Press, 2009); Robert M

Cassidy, Counterinsurgency in the Global War on Terror (Stanford University Press, 2008); Kalev I

Sepp, ‘From “Shock and Awe” to “Hearts and Minds” The Fall and Rise of US Counterinsurgency

Capability in Iraq’ (2007) 28(2) Third World Quarterly 217; Jonathan Gilmore, ‘A Kinder, Gentler

259 combines armed force with soft power efforts to ‘win hearts and minds’. As such, it is

a key contemporary example of smart power thinking in practice. When it became

clear to the US military that the overwhelming firepower of ‘shock and awe’ was a

counter-productive strategy for reducing violence, soft power strategies aimed at

rebuilding the Iraqi and Afghan societies took on increasing importance. The US

counter-insurgency manual, FM 3-24, was published in 2007 under the guidance of

General David Petraeus to remedy the strategic errors of the initial invasion.3 FM 3-

24 reflects this smart power ideal in which armed force should be supplemented with

efforts to promote economic growth, protect human rights and uphold the rule of law.4

The roots of this contemporary approach to counter-insurgency can be found

in the years following World War 2 when the British and French militaries faced

violent uprisings in several of their colonies. Following these conflicts, British and

French military officers reflected on their experiences and wrote strategy on how best

to defeat future insurgencies. The key counter-insurgency theorists from this colonial

(or ‘classical’) era offer different formulations of counter-insurgency strategy, but

they share a smart power logic in which military efforts to capture and kill insurgents

should be supplemented with political efforts to win the support of the population.

Since this early classical era, counter-insurgency campaigns have been fought

far and wide, but it is in early British practice that we find the archetypal counter-

insurgency campaign: the Malayan Emergency of 1948-1960. Indeed, it was the

Counter-Terrorism: Counterinsurgency, Human Security and the War on Terror’ (2011) 42(1) Security

Dialogue 21.

3 US Army/Marine Corps, Counterinsurgency Field Manual: US Army Field Manual No 3-24

(University of Chicago Press, 2007) (‘FM 3-24’).

4 See ibid [1-131], 156 [Figure 5-2], [D-38].

260 Malayan Emergency that gave rise to the phrase ‘winning hearts and minds’,5 which is typically associated with soft power efforts to counter political violence.6

According to the orthodox view, the British administration defeated the communist uprising in Malaya because Sir Gerald Templer supplemented coercive measures with a strategy for winning the support of the Malayan population.7 Whereas most other counter-insurgency campaigns have been fought largely if not solely through coercive means,8 Malaya provides the only significant example of a colonial counter- insurgency campaign in which victory is widely attributed to a government’s ability to combine hard and soft power.9 As such, the conflict provides the primary historical

5 See Paul Dixon, ‘“Hearts and Minds”? British Counter-Insurgency from Malaya to Iraq’ (2009) 32(3)

Journal of Strategic Studies 353, 361; Richard Stubbs, ‘From Search and Destroy to Hearts and Minds:

The Evolution of British Strategy in Malaya 1948-60’ in Daniel Marston and Carter Malkasian (eds),

Counterinsurgency in Modern Warfare (Osprey, 2008) 101, 101, 109. It is commonly accepted that

Templer coined the modern usage of the term, although the phrase can be traced back to the Bible. See

Holy Bible: New King James Version (Thomas Nelson, 1980) Jeremiah 31:33 (‘I will put My law in their minds, and write it on their hearts; and I will be their God, and they shall be My people’);

Philippians 4:7 (‘let your requests be made known to God; and the peace of God, which surpasses all understanding, will guard your hearts and minds through Christ Jesus’); Revelation 2:23 (‘I will kill her children with death, and all the churches shall know that I am He who searches the minds and hearts’).

6 With regard to the UK’s Prevent strategy, see, eg, Department for Communities and Local

Government, Preventing Violent Extremism: Winning Hearts and Minds (Communities and Local

Government, April 2007).

7 See especially Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 103; Richard

Stubbs, Hearts and Minds in Guerrilla Warfare: The Malayan Emergency 1948-1960 (Oxford

University Press, 1989) 66-92. The orthodox account of the Malayan Emergency is discussed in Part II.

8 See generally David French, The British Way in Counter-Insurgency: 1945-1967 (Oxford University

Press, 2011), and discussion in Part IIA.

9 This claim is substantiated in Parts IIA and IID.

261 basis for smart power thinking in counter-insurgency strategy, including its contemporary form in FM 3-24.10 Malaya provides a key case study in smart power thinking because it provides the historical foundations on which counter-insurgency theorists build their claims about the benefits of combining hard and soft power.

This chapter tests the three components of smart power thinking with regard to

British counter-insurgency efforts in Malaya. In this respect, the chapter builds on the case studies in the two previous chapters by testing smart power thinking in a military and historical context. More specifically, the aim of this chapter is to examine the historical origins of smart power thinking in Western military strategy. The phrase

‘winning hearts and minds’ has become hackneyed and ubiquitous, and many policymakers likely use the phrase without understanding its historical origins. This is a significant oversight, because on closer inspection the events of the Malayan

Emergency are significantly more complex than smart power thinking suggests.

In particular, by supplementing contemporary case studies of counter- terrorism with this historical inquiry, it becomes clear that a number of common issues, themes and problems arise when Nye’s theory is tested against real-world examples. These divergent case studies suggest that hard and soft power are more frequently imbricated than they are distinct, that soft power can significantly constrain free choice, that there are inherent tensions in the idea of combining hard and soft power, that there is a distinct lack of evidence supporting the effectiveness of smart power strategies, and that it is difficult for governments to develop smart power strategies once they have invested significant resources in hard power. These recurring issues are supported further by Chapter Five, which examines contemporary counter-insurgency operations in Iraq.

10 See FM 3-24, above n 3, xxiv.

262 Part I of this chapter examines classical counter-insurgency strategy. It is

divided into three sections. First, it provides an overview of counter-insurgency and

explains the core principles of counter-insurgency strategy as found in the works of

the classical theorists. Secondly, it explains the uses of hard power recommended by

the classical counter-insurgency theorists. Thirdly, it explains the uses of soft power

recommended by the classical theorists and how these should be combined with hard

power. Part II explains why the Malayan Emergency is said to demonstrate a

successful application of these counter-insurgency principles. It sets out the orthodox account of the how the British succeeded in Malaya by developing a smart power strategy.

Parts III-V test the three components of smart power thinking by analysing the events of the Malayan Emergency in further detail. They consider each component of smart power thinking in turn. First, Part III asks, to what extent were hard and soft power responses to the insurgency distinct? Secondly, Part IV asks, to what extent were soft power responses to the insurgency more consistent with autonomy compared to hard power responses to the insurgency? Thirdly, Part V asks, to what extent were hard and soft power responses to the insurgency complementary? Part V answers these questions in part by relying on revisionist histories of the Malayan

Emergency. These revisionist histories suggest different reasons why the British succeeded in defeating the insurgency. As such, they provide insights into the difference and relationship between hard and soft power which contrast with the smart power formulation offered by counter-insurgency theorists. In particular, these competing historical accounts suggest that it is difficult to draw general lessons about the effectiveness of smart power from the British experience in Malaya.

263 I CLASSICAL COUNTER-INSURGENCY

A What is Counter-Insurgency?

Counter-insurgency is both a strategy and an historical practice that has developed

since the years following World War 2 when several colonies revolted against

Western rule. Counter-insurgency is the practice of quelling uprisings against the state

– but more importantly, it is also the way of thinking about these conflicts and the

strategy prescribed for countering them. Counter-insurgency is therefore a theory of

conflict between a state and non-state actors, but it is more than just a theory as it has

a profound influence on how governments respond to politically motivated violence.

As an historical practice, counter-insurgency is associated with four main

types or periods of conflict. First, counter-insurgency refers to the efforts of Western

governments to suppress violent uprisings against their colonial administrations

during the post-WW2 and Cold War era. These include uprisings against the British

in Palestine (1944-1947), Malaya (1948-1960), Kenya (1952-1960), Cyprus (1955-

1959), South Yemen (1963-1967) and Oman (1965-1975),11 and against the French in

11 See generally French, The British Way in Counter-Insurgency, above n 8; John Newsinger, British

Counterinsurgency: From Palestine to Northern Ireland (Palgrave, 2002); Richard Stubbs, ‘From

Search and Destroy to Hearts and Minds’, above n 5; Jonathan Walker, ‘Red Wolves and British Lions:

The Conflict in Aden’ in Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern

Warfare (Osprey, 2008) 137; Ian F W Beckett, ‘The British Counterinsurgency Campaign in Dhofar

1967-75’ in Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern Warfare

(Osprey, 2008) 175; FM 3-24, above n 3, 234-235.

264 Vietnam (1946-1954) and Algeria (1954-1962).12 As detailed below, these anti- colonial struggles have had the greatest influence on counter-insurgency strategy.

Secondly, counter-insurgency refers to more recent conflict which has been fought by established governments against sectarian or ethno-nationalist forces seeking independence or regime change. These have typically been fought over multiple decades, including in Rhodesia (1962-1980), Northern Ireland (1967-1998),

Sri Lanka (1983-2009), and Pakistan (2001-present, but dating back in different forms to 1971).13 To this second category may be added a third: where a foreign government has strategic interests in maintaining an existing regime and so provides direct or indirect support to that regime, thereby fighting an intra-state conflict by proxy. This is typical of US approaches to counter-insurgency in South-East Asia and Latin

12 See Douglas Porch, ‘French Imperial Warfare 1945-62’ in Daniel Marston and Carter Malkasian

(eds), Counterinsurgency in Modern Warfare (Osprey, 2008) 79; Grégor Mathias, Galula in Algeria:

Counterinsurgency Practice versus Theory (Neal Durando trans, Praeger Security International, 2011);

Paul B Rich and Isabelle Dyuvesteyn, ‘The Study of Insurgency and Counter-Insurgency’ in Paul B

Rich and Isabelle Duyvesteyn, The Routledge Handbook of Insurgency and Counterinsurgency

(Routledge, 2012) 1, 9; FM 3-24, above n 3, 252.

13 See J R T Wood, ‘Countering the Chimurenga: The Rhodesian Counterinsurgency Campaign 1962-

80’ in Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern Warfare (Osprey,

2008) 191; Colonel Richard Iron, ‘Britain’s Longest War: Northern Ireland 1967-2007’ in Daniel and

Carter Malkasian (eds), Counterinsurgency in Modern Warfare (Osprey, 2008) 157; Newsinger, above n 11, 151-194 (Northern Ireland); David Lewis, ‘Counterinsurgency in Sri Lanka: A Successful

Model?’ in Paul B Rich and Isabelle Duyvesteyn, The Routledge Handbook of Insurgency and

Counterinsurgency (Routledge, 2012) 312; Shehzad H Qazi, ‘Insurgent Movements in Pakistan’ in

Paul B Rich and Isabelle Duyvesteyn, The Routledge Handbook of Insurgency and Counterinsurgency

(Routledge, 2012) 227; Julian Schofield, ‘Counterinsurgency in Pakistan’ in Paul B Rich and Isabelle

Duyvesteyn, The Routledge Handbook of Insurgency and Counterinsurgency (Routledge, 2012) 324.

265 America, including in the Philippines (1946-1954), Vietnam (1956-1973), Guatemala

(1981-1983), Nicaragua (1981-1990), and Colombia (1998-present).14 Lastly, counter-insurgency describes recent efforts by the US-led Coalition governments to improve stability in Afghanistan (2001-present) and Iraq (2007-2011) as part of a post-invasion occupying force.15 It is these US-led counter-insurgency efforts in the

Middle East which have revived significant academic interest in counter-insurgency.

As a strategy, counter-insurgency refers to a collection of writings that developed out of the British and French experience of colonial warfare following

World War 2. Earlier analogues of counter-insurgency thinking can be found in works from the turn of the 20th century – most notably, C E Callwell’s Small Wars and T E

Lawrence’s Twenty-Seven Articles were based on the British experience in the Boer

14 See Anthony James Joes, ‘Counterinsurgency in the Philippines 1989-1954’ in Daniel Marston and

Carter Malkasian (eds), Counterinsurgency in Modern Warfare (Osprey, 2008) 39; John A Nagl,

‘Counterinsurgency in Vietnam: American Organizational Culture and Learning’ in Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern Warfare (Osprey, 2008) 119; Thomas A

Marks, ‘Regaining the Initiative: Colombia versus the FARC Insurgency’ in Daniel Marston and Carter

Malkasian (eds), Counterinsurgency in Modern Warfare (Osprey, 2008) 209; Nagl, Learning to Eat

Soup With a Knife, above n 2, 115-181; Hal Brands, ‘Reform, Democratization, and Counter-

Insurgency: Evaluating the US Experience in Cold War-ear Latin America’ (2011) 22(2) Small Wars &

Insurgencies 290-321.

15 See David Kilcullen, The Accidental Guerrilla: Fighting Small Wars in the Midst of a Big One

(Oxford University Press, 2009) 39-114 (Afghanistan), 115-185 (Iraq); Daniel Marston, ‘Realizing the

Extent of Our Errors and Forging the Road Ahead: Afghanistan 2001-2010’ in Daniel Marston and

Carter Malkasian (eds), Counterinsurgency in Modern Warfare (Osprey, 2008) 251; Carter Malkasian,

‘Counterinsurgency in Iraq: May 2003-January 2010’ in Daniel Marston and Carter Malkasian (eds),

Counterinsurgency in Modern Warfare (Osprey, 2008) 287. Chapter Five of this thesis examines counter-insurgency operations in Iraq.

266 Wars and the Arab revolt – but the development of counter-insurgency principles is

generally attributed to a few key works from the post-war period of decolonisation.

There are three counter-insurgency theorists from this period who have proved

particularly influential.16 David Galula wrote Counterinsurgency Warfare in 1964 on the basis of his experience serving in the French army during the Algerian War.17 Sir

Robert Thompson wrote Defeating Communist Insurgency in 1966 on the basis of his

experiences as Permanent Secretary for Defence in Malaya and as head of the British

Advisory Mission to Saigon (BRIAM).18 General Sir Frank Kitson wrote Low

Intensity Operations in 1971 on the basis of his experiences in Malaya, Kenya, Oman,

Cyprus and Northern Ireland.19 These three works provide detailed accounts of how

governments should defeat insurgencies. They have each remained influential to the

present day, including by shaping the current US approach set out in FM 3-24.20

Kitson, Thompson and Galula outline the concept of insurgency and offer a set of principles for how insurgencies should be countered. They offer similar definitions of insurgency, although the divergent historical examples outlined above show that it is difficult to categorise all insurgencies according to a single definition. According to their definitions, an insurgency is a protracted struggle in which non-state actors aim

16 Marston and Malkasian, above n 2, 13.

17 David Galula, Counterinsurgency Warfare: Theory and Practice (Praeger Security International,

1964, 2006 ed).

18 Thompson, above n 1.

19 Frank Kitson, Low Intensity Operations: Subversion, Insurgency, Peace-Keeping (Faber & Faber,

1971).

20 In particular, the US military has drawn directly on Thompson for the idea of a ‘clear-hold-build’ operation, and Galula for a range of population control measures: see Thompson, above n 1, 111-113;

Galula, above n 17, 82-83; FM 3-24, above n 3, 174-182.

267 to overthrow an established government by using armed force alongside political

tactics such as terrorism, subversion and propaganda. Kitson defines insurgency as

‘the use of armed force by a section of the people against the government’ which is

designed to ‘overthrow those governing the country at the time, or to force them to do

things which they do not want to do’.21 He describes this alongside ‘subversion’,

which encompasses all other acts falling short of armed force to achieve the same

objectives (such as protests, propaganda and small-scale violence).22 Galula defines

insurgency as a ‘protracted struggle conducted methodically, step by step, in order to

attain specific intermediate objectives leading finally to the overthrow of the existing

order’.23 He likens it to a civil war that is asymmetrical because the government has

‘overwhelming superiority’ in military and other national resources.24 Galula

distinguishes insurgencies from revolutions (explosive, spontaneous upheavals) and

plots (clandestine action to overthrow a country’s leadership known only to a small

group of planners).25 Thompson describes insurgency as a ‘war for the people’.26

In essence, an insurgency is a form of guerrilla warfare against the state.

However, the term ‘guerrilla warfare’ is ordinarily used in a more specific sense to

describe the hit-and-run military tactics used by irregular armed forces against a

conventional military.27 The concept of ‘insurgency’ captures a broader context in

21 Kitson, above n 19, 3.

22 Ibid 3.

23 Galula, above n 17, 2.

24 Ibid 2-3.

25 Ibid 2.

26 Thompson, above n 1, 51.

27 See Bard E O’Neill, Insurgency and Terrorism: From Revolution to Apocalypse (Potomac, 2nd ed,

2005) 15, 35.

268 which guerrilla warfare tactics form one part of a struggle for regime change, and in

which that regime change has some degree of support amongst the general population.

There are two basic principles that are common to the classical accounts of

counter-insurgency strategy. The first is that the population plays a central role in

determining the outcome of the struggle between the insurgents and the government.

This is because insurgents require the support of the surrounding population if they

are to succeed against a much larger, conventional military force. This idea can be

traced back to Mao, who taught his communist forces in the 1920s that the guerrilla

must ‘swim in the people like the fish swims in the sea’.28 Insurgents need to hide

amongst a population in order to protect themselves from being captured and killed by

the government’s military forces. They also need the consent of the population if they

are to eventually acquire control of the state. If the population supports the

government instead of the insurgents, neither of these is possible and the insurgents

will quickly be captured and killed by the larger military force.29 Both sides must

therefore struggle for the consent of the population in the same way that armies

struggle for control over territory in conventional warfare. As Galula explains, the

population represents the vital ‘new ground’ in counter-insurgency.30 This is why

counter-insurgency is famously associated with the phrase ‘winning hearts and

minds’, because in contrast to conventional warfare, the government should focus on

winning the support of the population rather than capturing and killing the enemy.

28 See Mao Tse-Tung, On Guerrilla Warfare (Samuel B Griffiths trans, Illinois University Press, 2000)

8, 93.

29 See especially Thompson, above n 1, 56: ‘If the guerillas [sic] can be isolated from the population, i.e. the “little fishes” removed from “the water”, then their eventual destruction becomes automatic.’

30 Galula, above n 17, 4. See also 52.

269 The second recurring principle in counter-insurgency strategy is that a government will lose the support of the population if it uses excessive force against the insurgents or the population itself. Galula explains that a ‘succession of arbitrary restrictive measures’ will increase opposition to the government and the insurgent

‘will thank his opponent for having played into his hands’.31 In British counter- insurgency this is codified in the principle of ‘minimum force’, a military doctrine dating back to the early 20th century which requires the British Army to use the minimum force necessary when suppressing civil disorder throughout the Empire.32

31 Ibid 45.

32 An early version of this doctrine had existed in the 1912 edition of the Manual of Military Law, but this was further refined and developed after British forces in the Punjab killed 379 unarmed protestors and wounded over a thousand in Amritsar in April 1919: British Army, British Army Field Manual:

Volume 1, Part 10 – Countering Insurgency (Army Code 71876, October 2009) [3-27] and adjoining

Table (‘British Army Field Manual’). See generally Nick Lloyd, ‘The Amritsar Massacre and the

Minimum Force Debate’ (2010) 21(2) Small Wars & Insurgencies 382; Rod Thornton, ‘The British

Army and the Origins of its Minimum Force Philosophy’ (2004) 15(1) Small Wars & Insurgencies 83.

A major critique of classical counter-insurgency is that the British military did not comply with this principle, and indeed flagrantly violated it: see, eg, French, The British Way in Counter-Insurgency, above n 7, 82-86; Karl Hack, ‘Everyone Lived in Fear: Malaya and the British Way of Counter-

Insurgency’ (2012) 23(4/5) Small Wars and Insurgencies 671; Matthew Hughes, ‘The Practice and

Theory of British Counterinsurgency: The Histories of the Atrocities at the Palestinian Villages of al-

Bassa and Halhul, 1938-1939’ (2009) 20 (3/4) Small Wars & Insurgencies 528; Bruno C Reis, ‘The

Myth of British Minimum Force in Counterinsurgency Campaigns during Decolonisation (1945-1970)’

(2011) 34(2) Journal of Strategic Studies 245. Kitson and Thompson do not expressly discuss minimum force in their writings – a curious omission (see Reis, 252-253) – although they express some related ideas in recommending that the government should act in accordance with accepted principles of law: Thompson, above n 1, 52; Kitson, above n 19, 69. For example, Thompson stresses (at 53) that

270 On top of these basic principles, Kitson, Thompson and Galula emphasise

different approaches that governments should adopt in countering insurgencies.

Galula is influential for stressing that the government should protect the population

from insurgent attacks,33 and for his famous remark that counter-insurgency is ‘20 per

cent military and 80 per cent political’.34 Thompson is influential for describing a

three-phase process for conducting counter-insurgency operations. Thompson

described these three phases as ‘clear’, ‘hold’, and ‘winning’,35 although in contemporary counter-insurgency this is commonly referred to as a ‘clear-hold-build’ operation.36 In a clear-hold-build operation, armed force is used to ‘clear’ an area of

insurgents and subsequently to ‘hold’ it so that the military can ‘build’ infrastructure

and implement other social reform to win the support of the population.37 Thompson has also remained influential for setting out five key principles of counter-insurgency:

• The government must have a clear political aim

• The government must function in accordance with the law

• The government must have an overall plan

• The government must give priority to defeating the political subversion, not the

guerillas

the power to arrest and detain be ‘clearly laid down within certain limits’ and (at 94) that all captured

enemy personnel ‘should be given good treatment’.

33 Galula, above n 17, 61.

34 Ibid 63.

35 Thompson, above n 1, 111-113. He also describes (at 113) a fourth stage: ‘won’.

36 See FM 3-24, above n 3, 174-180, 182-184; British Army Field Manual, above n 32, [4-34]-[4-48].

37 See ibid.

271 • In the guerilla phase of an insurgency, a government must secure its base areas

first.38

Kitson is most closely associated with the role of intelligence in counter-insurgency,

as out of the three theorists he discussed this in the most detail. He described

intelligence as being of ‘paramount importance’,39 although he noted that it was often difficult to use intelligence effectively because ‘material about enemy locations and intentions is usually out of date before it can be acted upon’.40 He therefore explained that intelligence collection in counter-insurgency involves two separate tasks: producing ‘background information’ on the insurgency, and developing that background information into ‘contact information’ which allows the government’s military forces to make contact with the enemy and capture or kill the insurgents.41

The role that intelligence plays in helping the government to capture and kill insurgents shows that counter-insurgency is not purely a ‘friendly’ approach to warfare. Rather, the distinguishing feature of counter-insurgency is that it seeks to balance brutality and benevolence. As Thompson explains in the opening quotation to this chapter, counter-insurgency requires an ‘adroit and judicious mixture of ruthlessness and sympathy’.42 The thrust of counter-insurgency strategy is that governments should aim to win the support of the population by avoiding excessive force and acting in accordance with the law – but the classical theorists also suggest

38 Thompson, above n 1, 50-58 (NB: Thompson spells guerilla with one ‘r’).

39 Kitson, above n 19, 95.

40 Ibid 96.

41 Ibid 96.

42 Thompson, above n 1, 146.

272 that a significant degree of force should be used against both the insurgents and the

surrounding population. Kitson explains that the government ‘must base its campaign

on a determination to destroy the subversive movement utterly’.43 He explains that the

government should keep an ‘eye to world opinion’ and only use as much force as is

necessary to contain the threat, but he nonetheless believes that ‘conditions can be

made reasonably uncomfortable for the population as a whole, in order to provide an

incentive for a return to normal life’.44 The nature of the insurgent threat as both physical and political is what necessitates this dual response: the government needs to capture or kill the insurgents, but it also needs to win the consent of the population or it will fail in this objective. Counter-insurgency therefore requires a two-pronged, smart power approach: a hard power approach for capturing and killing insurgents, and a soft power approach for winning the support of the general population. The next sections explore these hard power and soft power approaches in more detail.

B Hard Power

The classical counter-insurgency theorists recommend a variety of hard power measures for defeating insurgencies. In the early stages of an insurgency, when insurgent activities remains largely legal and non-violent, Galula recommends that the government ‘nip the insurgency in the bud’ by banning their organisations, censoring their publications, impeaching them in the courts and restricting their ability to contact other people.45 He describes this period as the ‘cold revolutionary war’.46 This

43 Kitson, above n 19, 50.

44 Ibid 87.

45 Galula, above n 17, 44.

273 pre-emptive approach might seem extreme, although it is notable that Western governments have employed similar legal measures in recent years with regard to terrorist organisations after 9/11.47 Indeed, Galula notes that this method will be easy to apply in totalitarian states, but is ‘hardly feasible in democracies’.48 As such, he recommends that governments only use such preventive measures if they already possess the legal powers to do so.49 He recommends against acting ‘beyond the borders of legality’, as this would open a ‘Pandora’s box’ in which it becomes too difficult to distinguish legitimate political opposition from subversion, and in which insurgents use the government’s actions to increase support for their cause.50

Thompson takes a similar approach: he believes that the power to preventively detain

‘cannot be denied to governments which face a national emergency’, although he

46 Ibid 43.

47 See Chapter Two, Part I; Chapter Three, Part I.

48 Galula, above n 17, 44.

49 Ibid 45. Given Galula’s approach to this issue, it is striking that several commentators argue that current pre-emptive laws in domestic counter-terrorism derive from classical counter-insurgency strategy: see Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy

(UNSW Press, 2004) 70-82; Jude McCulloch and Sharon Pickering, ‘Pre-Crime and Counter-

Terrorism: Imagining Future Crime in the “War on Terror” (2009) 49(5) 628, 636-7; David Miller and

Rizwaan Sabir, ‘Counter-Terrorism as Counterinsurgency in the UK “War on Terror”’ in Scott

Poynting and David White (eds), Counter-Terrorism and State Political Violence (Routledge, 2012)

12. It is likely that Kitson, Thompson and Galula would in fact recommend against such pre-emptive laws, because they would hinder the government’s overall objective of winning the support of the population. Indeed, as Part IC below demonstrates, the classical theorists would likely make the same suggestion as these counter-terrorism commentators: that Western governments should move towards a soft power approach to counter-terrorism which focuses on ‘winning hearts and minds’.

50 See Galula, above n 17, 45.

274 nonetheless stresses that the power to arrest and detain individuals should include

‘sufficient safeguards to prevent the power being used for purely arbitrary arrests’.51

Once the ‘hot revolutionary war’ begins – that is, when insurgent activities become ‘openly illegal and violent’ – Galula recommends that the government implement a strict system of control to separate the population from the insurgents.52

The purpose of this system is to prevent the population from supporting the

insurgents, to protect the population from insurgent attacks, to make the insurgents

easier to identify, and also to monitor the population for any suspicious behaviour.53

Galula’s approach in this respect resembles the ‘clear’ and ‘hold’ stages in

Thompson’s three-phase process: first, military action should be used to kill

insurgents and expel them from a given area, and then a military garrison should be

installed which prevents the insurgents from re-entering a cleared area.54 Within the

newly controlled space, the population should be subject to a thorough census and

issued with identity cards.55 They should be subject to a curfew and two simple rules:

nobody may leave the village for more than 24 hours without a pass, and nobody may

receive an outside visitor without permission.56 This helps the government to track

movements between villages and identify any remaining insurgents.57 Galula notes

that this process can be sped up if the occupied villages are divided into sections and

51 Thompson, above n 1, 53-54.

52 Galula, above n 17, 43.

53 Ibid 82-83. See also Thompson, above n 1, 123.

54 Galula, above n 17, 52, 61, 75.

55 Ibid 82.

56 Ibid 83.

57 Ibid 82.

275 each assigned a group of soldiers.58 Thompson describes these controlled areas as

‘strategic hamlets’, such as those implemented in Vietnam from 1962.59 Thompson is open to the idea that communities can be resettled for this purpose,60 although Galula

believes that the government should attempt this only as a ‘last-resort measure’.61

Galula and Thompson also focus on the role of coercive legislation. Galula

recommends that the government devise a ‘fast and summary system of fines’ to help

establish the system of control described above.62 He also describes a systematic

‘purge’ in which members of the insurgent political organisation are arrested and charged.63 He allows the government significant scope in this regard, claiming that a

government ‘who refuses to use this law for his own purposes, who is bound by its

peacetime limitations, tends to drag the war out without getting closer to victory’.64

Thompson does not permit the government such wide discretion with regard to

the criminal law, as he believes that it is in the best interests of the government to

afford individuals certain procedural protections. He believes that the government

should ‘bring all persons who have committed an actual offence to public trial’.65 He

explains that this has ‘the great advantage not only of showing that justice is being

done, but of spotlighting the brutality of terrorist crimes and the whole nature of the

58 Ibid 83.

59 Thompson, above n 1, 121-140.

60 Ibid 126-127.

61 Galula, above n 17, 79.

62 Ibid 83.

63 Ibid 52, 61, 86-88.

64 Ibid 53.

65 Thompson, above n 1, 54.

276 insurgent conspiracy’.66 Consistently with the goal of winning the support of the population, Thompson explains that insurgents should be punished in accordance with

‘due processes of the law’.67 He believes that secret trials and military tribunals ‘can

never be satisfactorily justified’ as these would cause the government to lose respect

amongst the population.68 He describes these extra-legal procedures as a ‘tacit

admission that responsible government has broken down’.69

The classical counter-insurgency theorists also emphasise the important role that intelligence plays in helping the government to capture, punish and kill insurgents.70 Kitson makes this point most clearly: ‘If it is accepted that the problem of defeating the enemy consists very largely of finding him, it is easy to recognize the paramount importance of good information.’71 As described above, he explains that

intelligence collection in counter-insurgency involves two tasks: collecting

background information and developing this into contact information.72 Both Kitson

and Thompson recommend that a single organisation, based on the British Special

Branch, be established within the police force to perform these tasks.73 All three

theorists list a range of methods for gathering intelligence, including the use of

informers, interrogating prisoners, and infiltrating the insurgent organisation with

66 Ibid.

67 Ibid.

68 Ibid.

69 Ibid.

70 See Galula, above n 17, 46-47, 84; Kitson, above n 19, 71-77, 95-131; Thompson, above n 1, 84-89.

71 Kitson, above n 19, 95.

72 Ibid 96.

73 Ibid 74; Thompson, above n 1, 85.

277 undercover agents.74 Galula also notes that the census provides a basic source of

intelligence as the insurgents are usually connected to the population through family

and other ties.75 Thompson explains that the basic task of the intelligence organisation is to identify individual insurgents for the purpose of eradicating the threat:

It is not the aim of the intelligence organization merely to penetrate the insurgent

movement. Its aim, inside its own country, must be the total eradication of the threat.

For this purpose the organization must be directed to obtain the fullest details of the

identity of each individual communist.76

C Soft Power

In addition to these hard power measures, the classical counter-insurgency theorists

recommend a range of soft power measures for winning the support of the population.

The major feature of these soft power responses is a civil reconstruction program in

which the population is provided with a range of benefits. Thompson describes this in

the greatest detail under the third, ‘winning’ stage of counter-insurgency operations.77

As set out above, the first of Thompson’s five principles is that the

‘government must have a clear political aim.78 This aim should be ‘to establish and

maintain a free, independent and united country which is politically and economically

74 See Kitson, above n 19, 96; Thompson, above n 1, 86-88; Galula, above n 17, 46-47.

75 Galula, above n 17, 82.

76 Thompson, above n 1, 84.

77 Thompson, above n 1, 112-113. See also Kitson, above n 19, 50-51; Galula, above n 17, 61, 89-90.

78 Thompson, above n 1, 50-51.

278 stable and viable’.79 In order to win the support of the population, the government should provide it with a range of goods, services and infrastructure – preferably those which have a flow-on effect and encourage the population to become self-reliant:

‘Winning’ the population can tritely be summed up as good government in all its

aspects. From the point of view of the immediate aspect, there are many minor social

benefits which can easily and fairly inexpensively be provided, such as improved

health measures and clinics … [,] new schools … and improved livelihood and

standard of living. This last point covers every aspect of increased agricultural

production, including better seeds, livestock and poultry, and the provision of fruit

trees and other suitable crops. More desirable than outright gifts are schemes which

are self-perpetuating or encourage a chain reaction. For example, building plans

should stimulate the production of local building material. Improved communications

are particularly important in rural areas, and this calls for a major programme for the

repair of rural roads, canals and bridges.80

The purpose of this reconstruction program is not simply to be ‘friendly’ to the

population, or because social and economic development is considered an inherent

good. Rather, the reconstruction program is guided by the government’s overarching desire to defeat the insurgency. By providing the population with these benefits, the government creates an image of generosity and stability. This encourages the population to ‘take the necessary positive action to prevent insurgent reinfiltration and to provide the intelligence necessary to eradicate any insurgent cells which remain’.81

79 Ibid 51.

80 Thompson, above n 1, 112-113.

81 Ibid 113.

279 By winning the support of the population and making it feel safe, the government is

also able to gather crucial intelligence from the population about the insurgency.82

The other major use of soft power recommended by the classical counter- insurgency theorists is a psychological warfare campaign. Thompson explains that the psychological warfare campaign should have three main purposes: ‘(1) to encourage insurgent surrenders; (2) to sow dissension between insurgent rank-and-file and their leaders; and (3) to create an image of government … which is both firm and efficient but at the same time just and generous’.83 Nye describes military psychological

operations as an important example of soft power because they can influence

behaviour and achieve tactical gains without needing to coerce or kill enemy soldiers:

In wartime, military psychological operations (‘psy-ops’) are an important way to

influence foreign behavior and even obviate outright military means. For example, an

enemy outpost can be destroyed by a cruise missile or captured by ground forces – or

enemy soldiers can be convinced to desert and leave the post undefended.84

Kitson recommends that the government design and implement its psychological

operations through three stages. A single psychological operations organisation,

similar to the government’s intelligence organisation, should be established for this

purpose.85 First, the psychological operations organisation should assess different strategies and present policy options to the government.86 Secondly, the chosen policy

82 Galula, above n 17, 50.

83 Thompson, above n 1, 90. See also Galula, above n 17, 85.

84 Joseph S Nye Jr, Soft Power: The Means to Success in World Politics (Public Affairs, 2004) 116.

85 Kitson, above n 19, 77; Thompson, above n 1, 90.

86 Kitson, above n 19, 77.

280 should be turned into propaganda material such as broadcast programmes, newspaper

articles, and leaflets.87 Thirdly, this material should be disseminated by mechanical

means, such as broadcasting, printing, and films.88 The government should also take defensive steps to challenge insurgent propaganda by monitoring their output and jamming their broadcast stations.89

The terms ‘psychological warfare’ and ‘psychological operations’ create an

impression that the government should lie, cheat, deceive and manipulate, although

the counter-insurgency theorists stress that there are limits to the methods that the

government can employ. This is because the government must keep in mind its goal of winning the support of the population. If the government is perceived as dishonest and manipulative, then the population will continue to support the insurgents and the government will not be able to defeat the insurgency. There are three limits in particular that the classical counter-insurgency theorists describe. First, governments should not argue directly with the insurgents or unfairly dismiss their views. As

Thompson explains, the ‘most precious propaganda asset of the government is its credit in the eyes of the people’.90 If a government engages in polemics or direct argument, this will only tarnish the government’s image and give the insurgents’ propaganda wider circulation.91 Secondly, as Galula explains, the government is bound by certain rules and responsibilities which mean it cannot simply lie or deceive to benefit its image:

87 Ibid.

88 Ibid.

89 Ibid.

90 Thompson, above n 1, 96.

91 Ibid 96-97.

281

The insurgent, having no responsibility, is free to use every trick; if necessary, he can

lie, cheat, exaggerate … The counterinsurgent is tied to his responsibilities and to his

past, and for him, facts speak louder than words. He is judged on what he does, not

on what he says. If he lies, cheats, exaggerates, and does not prove, he may achieve

some temporary successes, but at the price of being discredited for good.92

Thirdly, governments should avoid censoring the press because this would damage

the government’s image. Thompson describes a free press as ‘one of the most

powerful weapons in the armoury of the government’.93 These comments are

strikingly similar to Nye’s work on ‘strategic communication’.94 Nye recommends that a government at war should manage the news cycle to ‘reduce unfavourable perceptions’, although he notes that ‘[r]igid censorship is not always an option’.95

A final use of soft power relates to the role that law plays in the reconstruction program. Galula recommends that the government organise local elections as a key part of the ‘constructive’ phase of counter-insurgency operations.96 Likewise,

Thompson recommends that the government establish village councils to enact by- laws and regulations, raise simple taxes, issue licenses for shops, and deal with other local affairs.97 He also recommends that a Cabinet system of government be established to coordinate the development of the reconstruction program. This

92 Galula, above n 17, 9.

93 Thompson, above n 1, 98.

94 See Nye, Soft Power, above n 86, 108-118.

95 Nye, Soft Power, above n 84, 116.

96 Galula, above n 17, 89-90.

97 Thompson, above n 1, 77.

282 Cabinet system should have ‘well-defined procedures’ and a ‘clear definition of

responsibilities between the various Ministries and Departments of government’.98 All major policy decisions, including all legislation, taxation and expenditure, should be submitted to the Cabinet, and every decision should be the collective responsibility of all the Ministers.99 There are two purposes to this administrative structure: to maintain contact between the government and the people, and to provide a simple and efficient organisation for economic activity.100 Over time, this system will have the added

benefit that it increases public confidence in the decisions of government. The

population will become ‘conscious that the decisions of its government are fair,

honest and dependable and are in the best interests of the country as a whole’.101

These soft power approaches are designed to work in conjunction with the hard power measures described above. The approach of the classical counter- insurgency theorists in this regard is analogous to Nye’s smart power logic. As the third of his five principles, Thompson explains that the ‘government must have an overall plan’.102 This plan should include ‘not just the security measures and military operations’; it must also ‘include all political, social, economic, administrative, police and other measures which have a bearing on the insurgency’.103

98 Ibid 70-71.

99 Ibid 70.

100 Ibid 71-72.

101 Ibid 70.

102 Ibid 55.

103 Ibid 55. Likewise, Kitson recommends that the government’s ‘overall programme’ should ‘include measures designed to maintain and if possible increase the prosperity of the country, as well as measures aimed at the destruction of the subversive organisation’: Kitson, above n 19, 50.

283 Furthermore, Thompson makes the same comment as Nye about the need to

strike an effective ‘balance’ between hard and soft power.104 Thompson claims that

‘there should be a proper balance between the military and the civil effort, with complete coordination in all fields’.105 He explains that military operations and civil

reconstruction are both necessary, because military operations will not provide any

long-lasting results if they are not supported by civil reconstruction, and civil

reconstruction efforts will prove ‘a waste of time and money if they are unsupported

by military operations to provide the necessary protection’.106 Counter-insurgency therefore requires a smart power approach which combines hard and soft power effectively. This smart power logic can also be seen within the role of law, which takes on both hard power functions (such as providing the powers to arrest and detain), and soft power functions (such as providing an administrative structure for the reconstruction program, and by creating an image of fairness and transparency).

II THE MALAYAN EMERGENCY

A The Importance of Malaya

The Malayan Emergency refers to the period between 1948 and 1960 in which the

British colonial administration responded to a violent communist uprising in the

Malayan peninsular. It is a particularly significant campaign amongst counter- insurgency theorists because it is said to demonstrate a successful application of the

104 Nye, Soft Power, above n 84, 147. See discussion in Chapter One, Part I(C).

105 Thompson, above n 1, 55.

106 Thompson, above n 1, 55.

284 principles set out above. Indeed, it is fair to say that Malaya provides the only

example of a colonial counter-insurgency campaign in which victory is commonly

attributed to the government’s ability to combine hard and soft power. The Algerian

War, for example, is considered an unsuccessful counter-insurgency campaign which

failed largely due to the widespread torture of suspected insurgents by the French

military.107 In this respect, Algeria provides lessons for what governments should not do in counter-insurgency, but it does not provide a positive model to follow. The US counter-insurgency manual FM 3-24 uses the Algerian War as an example of how a government will undermine its legitimacy if it violates legal and moral restrictions.108

Likewise, British counter-insurgency campaigns other than the Malayan

Emergency are rarely if ever cited as examples of the successful use of smart power.

It is difficult to define ‘success’ in this context, although it seems that commentators

define successful campaigns largely on the basis of whether the colonial

administration chose to grant independence, or was forced to do so. The British

campaign in Palestine, which caused the British government to relinquish its United

Nations mandate, has been described by military historians and other counter-

insurgency commentators as a ‘tremendous embarrassment’.109 The British campaign

in South Yemen (Aden) likewise led to a prompt and ‘humiliating withdrawal’ from a

107 See, Porch, ‘French Imperial Warfare 1945-62’, above n 12, 100; FM 3-24, above n 3, 252.

108 FM 3-24, above n 3, 252.

109 Newsinger, above n 10, 29. See also Charles Townshend, ‘In Aid of the Civil Power: Britain,

Ireland and Palestine 1916-48’ in Daniel Marston and Carter Malkasian (eds), Counterinsurgency in

Modern Warfare (Osprey, 2008) 37, who similarly describes the British withdrawal as ‘humiliating’;

David Cesarani, ‘The War on Terror That Failed: British Counter-Insurgency in Palestine 1945-1947 and the “Farran Affair”’ (2012) 23 (4/5) Small Wars & Insurgencies 648.

285 key strategic outpost.110 The British campaign in Cyprus led to some degree of political success, although it is otherwise considered alongside Palestine and Aden as a humiliating military loss in which some 40,000 British troops could not defeat a few hundred resistance fighters.111 The British campaign in Kenya is considered a success on a military level, but it is largely remembered for the barbaric practices of British troops and for the mass imprisonment of more than three-quarters of the indigenous

Kikuyu population.112

The British campaign in Oman could provide another useful case study of smart power thinking, as it is sometimes considered alongside Malaya as a ‘model counterinsurgency campaign’.113 However, it was a small-scale conflict and, in contrast to Malaya where the use of soft power is considered crucial, most historians

110 Ibid 130. See also Walker, above n 11, 153.

111 See Newsinger, above n 11, 84, 106-107; French, above n 8, 132; Simon Robbins, ‘The British

Counter-Insurgency in Cyprus’ (2012) 23(4/5) Small Wars & Insurgencies 720, 720, 730, 736. The campaign is considered a political success to some degree because Britain was able to prevent Cyprus from uniting with Greece, and not because it was successful in winning the support of the population: see Robbins, 735. Indeed, the methods used by the British military in Cyprus, as elsewhere, were often brutal and generated additional resentment amongst the population: see Robbins, 731-333.

112 See Newsinger, above n 11, 60, 74, 81; French, The British Way in Counter-Insurgency, above n 8,

52-73; Daniel Branch, ‘Footprints in the Sand: British Colonial Counterinsurgency and the War in

Iraq’ (2010) 38(1) Politics & Society 15, 21-23, 29; Huw C Bennett, Fighting the Mau Mau: The

British Army and Counter-Insurgency in the Kenya Emergency (Cambridge University Press, 2012);

Huw Bennett, ‘The Other Side of the COIN: Minimum and Exemplary Force in British Army

Counterinsurgency in Kenya’ (2007) 18(4) Small Wars & Insurgencies 638; Helena Cobban, ‘The Role of Mass Incarceration in Counterinsurgency: A Reflection on Caroline Elkins’s Imperial Reckoning in

Light of Recent Events’ (2006) 96 Radical History Review 112, 117.

113 Beckett, above n 11, 175. See Newsinger, above n 11, 143, 150.

286 attribute British victory to the use of ‘overwhelming superior force’, particularly by

Britain’s Special Air Service (SAS) in the Battle of Mirbat.114 The British campaign

in Northern Ireland is another significant example: it provides a useful case study for

how an insurgency can be ended through political negotiation,115 but it is seldom considered a success and there is no evidence that British forces were able to ‘win the hearts and minds’ of the Irish population.116 With regard to US counter-insurgency, the Vietnam War provides some evidence of counter-insurgency principles being applied successfully at the tactical level,117 but it is typically cited as an example of how a conventional military failed to adapt to the challenges of counter-insurgency.118

By contrast, the Malayan Emergency is lauded as the archetypal counter- insurgency campaign. The current British Army Field Manual explains that the conflict is ‘generally defined as the most successful British campaign, and one that has provided much of the doctrine for current British operations’.119 Historian Richard

Stubbs likewise describes it as ‘a significant case study of how counterinsurgency can

114 Newsinger, above n 11, 147, 150. See also Beckett, above n 11, 188-189.

115 See, eg, Heather S Gregg, ‘Setting a Place At the Table: Ending Insurgencies Through the Political

Process’ (2011) 22(4) Small Wars & Insurgencies 644.

116 See Didier Bigo and Emmanuel-Pierre Guittet, ‘Northern Ireland as Metaphor: Exception, Suspicion and Radicalization in the “War on Terror”’ (2011) 42(6) Security Dialogue 483, 484-485; Paul Dixon,

‘“Hearts and Minds”? British Counter-Insurgency Strategy in Northern Ireland’ (2009) 32(3) Journal of Strategic Studies 445, 461-462; Dixon,‘“Hearts and Minds”? British Counter-Insurgency from

Malaya to Iraq’, above n 5, 355.

117 David Kilcullen, Counterinsurgency (Oxford University Press, 2010) 208.

118 See Nagl, Learning to Eat Soup With a Knife, above n 2, 115-190, who contrasts the US experience in Vietnam with the successful British approach in Malaya.

119 British Army Field Manual, above n 32, CS5-1 [1].

287 be successfully waged’.120 John A Nagl describes it as a ‘rare’ and ‘remarkable’

example of how a military adapted its strategy to successfully achieve its

objectives.121 Nagl joins Michael Dewar in claiming that Malaya ‘truly stands as “one of the finest achievements of the British Army since 1945”’.122 More importantly,

British efforts in Malaya are said to provide a template for other counter-insurgency campaigns. The US counter-insurgency manual FM 3-24 explains that the British approach in Malaya ‘provides lessons applicable to combating any insurgency.’123

B The Insurgency Begins

The basic facts surrounding the Malayan Emergency are as follows. Beginning in

June 1948, the armed wing of the Malayan Communist Party (MCP), the Malayan

Races Liberation Army (MRLA), and the Min Yuen (a support and propaganda organisation) sought to overthrow the British administration. Britain had ruled Malaya since the late 18th century except for a brief period of Japanese occupation during

WW2. British forces regained control of Malaya in 1945, but by that time they had

lost their ‘aura of invincibility’ and they ‘found a very different Malaya than the one

120 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 118. See also David H Ucko,

‘The Malayan Emergency: The Legacy and Relevance of a Counter-Insurgency Success Story’ (2010)

10(1/2) Defence Studies 13, 13-14.

121 Nagl, Learning to Eat Soup with a Knife, above n 2, 107.

122 Ibid 107, citing Michael Dewar, Brushfire Wars: Minor Campaigns of the British Army Since 1945

(Robert Hale, 1984) 44.

123 FM 3-24, above n 3, 235. Likewise, Stubbs claims that the ‘comprehensive victory enjoyed by the

Malayan government provides important lessons for practitioners and theorists alike’: Stubbs, ‘From

Search and Destroy to Hearts and Minds’, above n 5, 118.

288 they had left behind’.124 The Malayan population quickly became dissatisfied with food shortages, repressive labour conditions, government corruption and high living costs. They expressed their frustration in a series of attacks against British officials and the managers of Malaya’s tin mines and rubber plantations.

Britain was committed to retaining control of Malaya due to the economic importance of these industries. World War 2 had ‘virtually bankrupted the British economy’, and Malaya’s rubber and tin industries provided the largest source of revenue from the colonies.125 Post-war politics also contributed to the insurgency by exacerbating longstanding tensions between the ethnic-Chinese and ethnic-Malay populations.126 The minority Chinese population resented the majority Malay

population for collaborating with the Japanese, and the Malay population resented the

Chinese population for being given equal rights under the Malayan Union of 1946.127

Over the next few years, these factors combined to create a larger and more violent insurgency. In 1948, British forces faced 2000 insurgents but by 1951 this number had grown to 8000, with 10-15 000 regular members of the Min Yuen and up to 150 000 active supporters amongst the population.128 The British government

responded by increasing its military deployment, by forming new regiments in the

Malayan Federation Army, and by seeking military assistance from Australia, New

124 Nagl, Learning to Eat Soup With a Knife, above n 2, 62.

125 Newsinger, above n 11, 41. See also Mark Moyar, A Question of Command: Counterinsurgency from the Civil War to Iraq (Yale University Press, 2009) 14.

126 See Nagl, Learning to Eat Soup With a Knife, above n 2, 60, 62.

127 Ibid.

128 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 102.

289 Zealand and Singapore.129 The frequency of violent clashes increased steadily, with more than 1000 insurgents, 500 security forces, and 500 civilians killed in 1951.130

C Responses to the Insurgency

British responses to the communist uprising in Malaya can be divided into three broad

phases: ‘search and destroy’, the Briggs Plan, and ‘winning hearts and minds’.131

1. Search and Destroy

From the beginning of the insurgency until March 1950, the British adopted a ‘search and destroy’ strategy based on armed force and emergency legal powers.132 On 17

June 1948, Sir Edward Gent, British High Commissioner for the Federation of

Malaya, declared a nationwide state of emergency which relied on some 149 pages of

legal powers.133 These emergency laws gave the police broad powers to search, arrest,

129 Ibid 102.

130 Ibid 102.

131 The division of the conflict into these three phases is taken from Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 103-109, although a similar structure is reflected in the work of other historians: see Newsinger, above n 11, 41-55; Hack, ‘Everyone Lived in Fear’, above n 32, 673, 682-

685.

132 See Nagl, Learning to Eat Soup With a Knife, above n 2, 63, Newsinger, above n 11, 42-45; Stubbs,

‘From Search and Destroy to Hearts and Minds’, above n 5, 103-106; Stubbs, Hearts and Minds in

Guerrilla Warfare, above n 7, 66-77; Moyar, above n 125, 112-116.

133 Nagl, Learning to Eat Soup With a Knife, above n 2, 63; Newsinger, above n 11, 45.

290 detain without trial and deport suspected insurgents.134 The laws provided for

curfews, food restrictions, controls on movement, collective fines and punishments,

and they re-introduced the death penalty for the carrying of weapons.135 By the end of

1949, over 5000 Malayans were held in detention camps, and over 10,000 (mostly

Chinese-Malays) had been deported.136 Those detained without trial fell into three groups: (1) those deemed ‘security risks’ by virtue of their associations with others,

(2) suspected insurgents that could not be prosecuted because the government did not have sufficient evidence against them, and (3) ‘territorial suspects’ who resided in areas that were known or reasonably suspected to be supporting the insurgents.137

As these extraordinary legal measures pushed more and more insurgents into the jungles, the British used small military patrols to sweep the area for enemy hideouts. Due to the difficult terrain, these jungle sweeps proved largely fruitless, and the British troops expressed their frustration through brutal reprisals against the

Malayan villages. For example, on 2 November 1948, British troops gave one hour’s notice before burning the entire village of Kachau to the ground.138 One month later,

British troops killed 24 unarmed Chinese villagers at Batang Kali.139 This brutal

134 See Nagl, Learning to Eat Soup With a Knife, above 2, 63; Newsinger, above n 11, 45; Stubbs,

Hearts and Minds in Guerrilla Warfare, above n 7, 69-70.

135 See Nagl, Learning to Eat Soup With a Knife, above n 2, 63; Newsinger, above n 11, 45; Stubbs,

Hearts and Minds in Guerrilla Warfare, above n 7, 69-70.

136 Newsinger, above n 11, 45.

137 Anthony Short, The Communist Insurrection in Malaya: 1948-1960 (Frederick Mueller, 1975) 142.

138 See Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 73; Short, above n 137, 162-163.

139 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 103; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 74; Short, above n 137, 166-169. The Batang Kali massacre has recently been the subject of unsuccessful claims for compensation in the British courts: see Keyu v

291 search and destroy strategy was not only unsuccessful in defeating the insurgency; it

also generated significant resentment amongst the Malayan population.140 This bolstered support for the insurgents, who were able to increase the frequency and intensity of their attacks.141 In 1950, insurgents killed 70 soldiers and 323 police.142

2. The Briggs Plan

The second phase of the British response took place between April 1950 and January

1952, when hundreds of thousands of rural Malayans were forcibly relocated into resettlement camps. In early 1950, Lieutenant-General Sir Harold Briggs was appointed Director of Operations, a new office tasked with developing and implementing a more effective strategy for defeating the insurgency. His plan – the

‘Federation Plan for the Elimination of the Communist Organisation and Armed

Forces in Malaya’ – came to be known as the ‘Briggs Plan’.143 The major feature of

the Briggs Plan was to forcibly relocate Malaya’s rural ethnic-Chinese population into

new residential areas. This relied on a new Emergency Regulation 17FA, which gave

Secretary of State (Foreign and Commonwealth Affairs) and Secretary of State (Defence) [2012]

EWHC 2445; Richard Norton-Taylor, ‘UK urged to accept responsibility for 1948 Batang Kali

massacre in Malaya’, The Guardian (London) 18 June 2013; Mark Townsend, ‘Revealed: How Britain

tried to legitimise Batang Kali massacre’, The Observer (London), 6 May 2012.

140 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 104; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 75, 91-2.

141 Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 92.

142 Newsinger, above n 11, 51.

143 Ibid 49; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 98; Short, above n 137, 237.

292 state authorities the power to declare a plantation area as a ‘controlled area’ and to compel anyone living outside the boundary of the controlled area to move into it.144

Between June 1950 and December 1951, nearly 400 000 Chinese squatters were rounded up at dawn by British troops and forcibly relocated into controlled areas.145 Some of the camps had clean water and schools, but in most the living conditions were insanitary.146 In essence, the resettlement camps were large floodlit detention centres with some semblance of civilisation inside. Newsinger describes the brutal process involved in relocating the villagers and the conditions inside the camps:

Squatter settlements were encircled by large numbers of troops and police before first

light, then occupied at dawn without any warning. The squatters were rounded up and

allowed to take with them only what they could carry. Their homes and standing

crops were fired, their agricultural implements were smashed and their livestock

either killed or turned loose. Some were subsequently to receive compensation, but

most never did. They were then transported by lorry to the site of their ‘new village’

which was often little more than a prison camp, surrounded by a barbed wire fence,

illuminated by searchlights. The villages were heavily policed with the inhabitants

effectively deprived of all civil rights. They were only allowed out to work and were

subjected to rigorous personal search when both leaving and entering the camps.147

144 Short, above n 137, 249.

145 Members of the rural Malayan population were generally referred to as ‘squatters’ because they often lived on the land illegally: Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5,

107.

146 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 106; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 102-103.

147 Newsinger, above n 11, 50.

293 There were two main purposes behind the resettlement camps, both of which would

later be recorded by Galula as key elements of counter-insurgency strategy.148 The first was to separate the population from the insurgents, as the insurgents depended on the population for supplies of food, weapons and ammunition.149 The second was to protect the population, because the insurgents repeatedly attacked the squatters in order to dissuade them from cooperating with the British and Malayan governments.150 The extent to which the resettlement helped to defeat the insurgency is considered below, although it is worth noting for the moment that the plan appeared unsuccessful at the time it was implemented.151 As described above, British forces faced a much larger and more violent insurgency in 1951 than they had in 1948.152

In addition to this relocation program, the Briggs Plan entailed other reforms which reflected the counter-insurgency principles set out above.153 In particular,

Briggs established a six-member Federal War Council that was responsible for developing policy relating to the Emergency.154 He established several War Executive

Committees to implement that policy throughout the Malayan states and the Straits

148 See Galula, above n 17, 82-83.

149 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 106; Short, above n 137, 235.

150 Short, above n 137, 236. However, the camps proved ineffective in this regard: Stubbs, Hearts and

Minds in Guerrilla Warfare, above n 7, 105.

151 Newsinger, above n 11, 51; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 126.

152 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 102.

153 For this reason, it is often said that Templer was not solely responsible for introducing the ‘hearts and minds’ approach: see, eg, Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 108;

Moyar, above n 125, 127, 132: This is discussed further below in Part V(C).

154 See Short, above n 137, 239; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 99. The

War council was assisted by a Federal Joint Intelligence Advisory Committee: Short, above n 137, 240.

294 Settlements.155 Briggs also established a Special Branch in 1950, which took

responsibility for collecting intelligence about the insurgency, and he allocated further

resources to the Information and Psychological Warfare services.156 To head the

Information and Psychological Warfare services, he appointed Hugh Carlton Greene

(brother of novelist Graham Greene and a future Director-General of the BBC).157

3. Winning Hearts and Minds

The third and most famous phase of the British campaign began in February 1952,

when Sir Gerald Templer implemented a soft power strategy for ‘winning the hearts

and minds’ of the Malayan population. It is widely acknowledged amongst counter-

insurgency experts that Templer’s efforts to win hearts and minds allowed the British

administration to defeat the insurgency.158

Templer was appointed by Prime Minister Winston Churchill as both High

Commissioner for Malaya and Director of Operations after Sir Henry Gurney was assassinated and Briggs left Malaya due to a serious illness.159 Templer had fought in

155 See Short, above n 137, 239; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 99.

156 Newsinger, above n 11, 51.

157 Ibid 51; Leon Comber, Malaya’s Secret Police 1945-60: The Role of the Special Branch in the

Malayan Emergency (Monash Asia Institute and Institute of Southeast Asian Studies, 2008) 155.

158 British Army Field Manual, above n 32, CS5-1 [1]; FM 3-24, above n 3, 235; Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 118; Nagl, Learning to Eat Soup With a Knife, above n 2,

107.

159 See Moyar, above n 125, 120-121; Newsinger, above n 11, 52. Considering the fame that Malaya

brought to Templer, it is interesting to note that he was Churchill’s third choice for the post: see Moyar,

above n 125, 121.

295 both World Wars and had spent significant time in military intelligence. He is

described as a stern but energising and popular leader.160 Templer arrived in Malaya in February 1952, and in contrast to his predecessors, he emphasised that he would defeat the insurgency only if he could win the support of two-thirds of the Malayan population.161 According to Stubbs, Templer’s ‘personal philosophy’ centred on the

idea that the population was the key to victory and should therefore be treated well:

Templer felt that people should be well treated and their grievances heard and when

possible addressed – hearts and minds were to be won. Templer’s evident concern

with the welfare of the general public marked a significant change in the direction of

the government’s policy, and one which was widely welcomed by Malayans.162

This sentiment was reflected in Templer’s approach to the resettlement camps. In

May 1952, the resettlement camps were officially renamed ‘New Villages’.163

Templer significantly improved conditions in the New Villages by providing the

population with a range of benefits, including supplies of clean water, places of

worship, basic medical care, road and rail access to outside areas, and jobs on

agricultural land.164 Education was a ‘vital ingredient’ of this new approach, with the

160 French, The British Way in Counter-Insurgency, above n 8, 1; Moyar, above n 125, 116, 125;

Newsinger, above n 11, 52; Short, above n 137, 343; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 143; Nagl, Learning to Eat Soup With a Knife, above n 2, 89.

161 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 109.

162 Ibid 109.

163 Short, above n 137, 342; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 169.

164 See Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 111; Stubbs, Hearts and

Minds in Guerrilla Warfare, above n 7, 169; Short, above n 137, 404; Newsinger, above n 11, 56.

296 government providing grants for the construction of classrooms, teachers’ quarters,

and student expenses.165 Spending on health also increased dramatically, with federal and State expenditure doubling from $24.8m to $49.4m between 1950 and 1954.166 It

took several years to deliver these benefits to the 500 or so New Villages that had

been created, but ‘eventually most had access to essential services and amenities’.167

The other key use of soft power that Templer relied upon to win the support of the Malayan population was to encourage local elections. The same legislation that renamed the resettlement camps as New Villages – the Local Councils Ordinance of

1952 – also granted the members of New Villages the right to vote for village

councils.168 These elected councils employed their own staff, collected rates and taxes, were responsible for their own budgets, and administered policy directly.169

An important development occurred in the Kuala Lumpur municipal elections of February 1952. This was the first time that the United Malays National

Organisation (UMNO) and the Malayan Chinese Association (MCA) joined forces to defeat the Independence of Malaya Party (IMP).170 Over the following years, the

UMNO-MCA alliance, which addressed the interests of both the Chinese and Malay

165 Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 170.

166 Ibid 172.

167 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 111. See also Short, above n

137, 402.

168 Short, above n 137, 342; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 213-215. Some

village committees had existed prior to this point, but the Local Councils Ordinance formalised what

had previously been an ad hoc process, and it converted the committees into local councils with the

power to undertake public functions: Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 213.

169 Short, above n 137, 342.

170 Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 209.

297 populations,171 gained sufficient strength to become known as ‘champions of Malayan

nationalism’ and a genuine alternative to the existing Malayan government.172 In

1955, Malaya held its first national election, at which the UMNO-MCA alliance led by Tunku Abdul Rahman won 75 per cent of the vote.173 By this time, the number of insurgents had dropped to around 3000.174 On 31 August 1957, Malaya was granted independence by the British government. This removed the insurgents’ primary claim for support, and the rate of surrender rose sharply.175 Over the next few years the

British were able to capture or kill the small numbers of remaining insurgents,176 and

on 31 July 1960 the new Malayan government formally lifted the state of emergency.

D Smart Power: The Legacy of Malaya

After the Emergency was successfully resolved, Templer’s approach was lauded as

the model counter-insurgency campaign, and his efforts have since provided much of

171 See ibid 212.

172 Ibid 219. See generally 210-213.

173 Ibid 217. See also Nagl, Learning to Eat Soup With a Knife, above n 2, 102.

174 Short, above n 137, 472.

175 See Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 114; Stubbs, Hearts and

Minds in Guerrilla Warfare, above n 7, 120; Newsinger, above n 11, 56. See also Kilcullen,

Counterinsurgency, above n 117, 218: ‘[I]n Malaya the British countered the Communist appeal to nationalism by setting a date for independence and commencing a transition to self-government. Over time, this marginalized the insurgents – people saw their grievances being peacefully addressed anyway, so why support the insurgency?’.

176 See Moyar, above n 125, 130; Nagl, Learning to Eat Soup With a Knife, above n 2, 103; Newsinger,

above n 11, 57; Short, above n 137, 494.

298 the historical justification for counter-insurgency strategy, including its contemporary

form in FM 3-24.177 Without Templer’s efforts to win hearts and minds in Malaya, it

is unlikely that the classical theorists would have ascribed such importance to soft

power, and it is unlikely that those ideas would have subsequently proved so

influential in shaping recent military operations in the Middle East. There is no other

colonial counter-insurgency campaign besides Malaya in which such a concerted

effort was made to use soft power, and in which the development of a soft power

approach is considered the major reason for the successful defeat of an insurgency.

It is important to emphasise that Templer did not rely solely on soft power.

Even strong advocates of Templer’s approach concede that he was quick to use ‘both

the stick and the carrot’.178 Like his predecessors, Templer relied heavily on curfews,

detention, collective fines and other punishments, such as the reduction of food

rations.179 Often these coercive methods were used as a form of retribution for insurgent attacks and other incidents. For example, in August 1952 a Chinese

Assistant Resettlement Officer (ARO) was killed in a small village and the villagers refused to provide British forces with any information. As punishment, Templer destroyed the village and sent all 62 residents (including women and children) to detention camps.180 Templer also ‘gave the highest priority to intelligence’ to assist in

177 FM 3-24, above n 3, xxiv.

178 Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 164-5. See also Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 111-112; Nagl, Learning to Eat Soup With a Knife, above n 2, 98; Moyar, above n 125, 128; Newsinger, above n 11, 53.

179 See ibid.

180 Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 164.

299 finding, capturing and killing insurgents.181 He imported experienced officers from

Britain’s security and intelligence services who had worked throughout the Empire.182

Rather, the key lesson that counter-insurgency historians and theorists draw from the Malayan Emergency is that both coercion and efforts to win hearts and minds are key elements in a successful counter-insurgency campaign. It would be half a century before Nye would coin the term ‘smart power’,183 but this is the key lesson

drawn from orthodox accounts of the conflict: that combining hard and soft power is

the key to victory. Whereas Gent and Briggs had relied solely and excessively on

coercion, Templer offered an additional soft power approach that paved the way for

Malayan independence, a clear reduction in the threat level, and the successful

resolution of the state of emergency. According to Nagl, ‘Templer’s greatest

contribution … was his ability to coordinate all of the efforts – social, political,

economic, police, and military’.184 The Malayan Emergency is not generally recognised as a significant moment in history for its impact on world events, but it is an incredibly significant conflict for the strategic and institutional impact that this idea has since had on Western militaries, including in the recent conflicts in Iraq and

181 Newsinger, above n 11, 54.

182 Comber, above n 157, 179.

183 Nye, Soft Power, above n 84, xiii, 147.

184 Nagl, Learning to Eat Soup With a Knife, above n 2, 100. Likewise, Stubbs describes Templer’s

‘hearts and minds’ strategy as encompassing a range of coercive and non-coercive approaches, including detention and collective fines (hard power) as well as civil reconstruction and local elections

(soft power): Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 250.

300 Afghanistan.185 Put simply, for counter-insurgency theorists, Malaya established the

importance of developing a strategy that relies on both hard and soft power.

III TESTING SMART POWER THINKING: ARE HARD POWER AND

SOFT POWER DISTINCT?

The next three sections consider the extent to which the events of the Malayan

Emergency validate the three components of smart power thinking. First, this current

section considers the extent to which hard and soft power responses to the insurgency

were distinct. Next, Part IV considers the extent to which soft power responses to the

insurgency were morally preferable to hard power responses to the insurgency. Lastly,

Part V considers the extent to which hard and soft power responses to the insurgency

were complementary. In this regard, Part V considers the extent to which hard and

soft power were compatible, the extent to which combining hard and soft power was

effective, and the extent to which the British administration was able to develop a

smart power strategy by rebalancing its existing reliance on hard power.

The first component of smart power thinking is that hard and soft power

describe two distinct methods for influencing behaviour. While Nye recognises a

number of complexities surrounding this distinction,186 he nonetheless maintains that it is ‘strong enough to allow us to employ the useful shorthand reference’.187 Like the

185 See Mackinlay, above n 2, 49: ‘Malaya did not change the course of history but at a national level it gave the British a central concept for their counter strategy in later campaigns’.

186 Nye, Soft Power, above n 84, 7, 9, 116; Joseph S Nye Jr, The Future of Power (Public Affairs,

2011) 25.

187 Ibid 8.

301 previous case studies on counter-terrorism,188 the British experience in Malaya suggests that this shorthand dichotomy is problematic and misleading, and that hard and soft power are often intertwined in complex and significant ways. These complexities cannot be dismissed lightly, and are indeed crucial to understanding how

Western governments have countered contemporary and historical threats to the state.

When conceptualising Templer’s use of soft power in Malaya, it is important to consider that he did not remove the overall coercive apparatus established by

Briggs during the resettlement program. Taken out of context, the provision of health services, education programs and basic infrastructure (soft power) seems radically different from detention and other collective punishments (hard power). Within the context of the New Villages, however, this distinction becomes significantly less meaningful: how ‘soft’ is soft power if it is used to influence a population that has been forcibly relocated into a constructed physical space? In this context, it is difficult to draw such a neat line between these two approaches. The villagers would be given a range of benefits, but then those benefits would be taken away and punishments meted out if they misbehaved – and all the while they were subject to intensive searches and other surveillance within a mass detention camp. In other words, different forms of hard and soft power were used as elements in a single attempt to control the population. This single method was, overall, undeniably coercive. At no point was soft power non-coercive, as the population was all the while detained.

This more complex relationship between hard and soft power could also be seen with the introduction of ‘White Areas’. On 3 September 1953, Templer

188 See discussion in Chapter One, Part III; Chapter Two, Part III.

302 designated 221 square miles of Malacca as a ‘White Area’.189 This meant that there were no insurgents in the area and that the more severe emergency regulations (such as those providing for curfews, searches and food controls) would be lifted.190 This was offered as a ‘major incentive for people to cooperate with the government’.191 By

mid-1954, some 1.3 million Malayans lived in White Areas, mostly along Malaya’s

coastline.192 In addition, the British administration offered significant monetary

rewards for information that led to the capture or killing of insurgents.193 When these inducements are added into the mix of coercion and benefits described above, it becomes extremely difficult to describe a clear dichotomy between hard power

(coercion, threats and inducements) and soft power (influencing behaviour through attraction).

For example, viewed as part of this wider coercive scheme, the benefits provided to the Malayan population (education, healthcare, etc) were not simply designed to promote a positive image of the government (soft power); they were also offered as an inducement to behave (hard power). The distinguishing feature of

Templer’s approach was not, therefore, that it relied on two distinct methods for influencing behaviour. Rather, Templer relied on a flexible combination of benefits, inducements and punishments within a constructed physical space from which the villagers were not permitted to leave.

189 Nagl, Learning to Eat Soup With a Knife, above n 2, 102; Stubbs, ‘From Search and Destroy to

Hearts and Minds’, above n 5, 112; Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 179.

190 Although the villagers were still required to remain within the controlled areas: see ibid.

191 Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 180.

192 Ibid 179; Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 112.

193 Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 184; Short, above n 137, 421.

303 Historian Karl Hack offers an account of the Emergency which supports this

more complex relationship between hard and soft power. Hack argues that

‘population and spatial control’, as exemplified in the resettlement program, was the

‘defining characteristic’ of the British approach in Malaya.194 He argues that we

should ‘avoid artificial levels of contrast between “winning hearts and minds” and

coercion’ within this overarching coercive framework.195 Hack suggests that we should think of the British strategy as instead being ‘aimed at … maximising the gap between possible negative consequences for non-compliance and positive consequences for compliance’.196 In other words, Templer aimed to influence the behaviour of the villagers by creating a physical space in which the population could simultaneously witness the benefits of behaving and the penalties for misbehaving.

The coercive force of this strategy was maximised by positing hard and soft power as two ends of a spectrum which the villagers could bring on themselves by virtue of how they chose to behave. This is not to suggest that a meaningful distinction between hard and soft power can never be drawn – taken out of context, there is certainly a distinction between detaining a population and developing an education or healthcare system – but it does suggest that this dichotomy is overly simplistic and misleading. The more significant lesson from Malaya is how Templer blended hard and soft power as two components of a single coercive method. This single coercive method was to manipulate individuals by providing two alternative sets of consequences, one desirable and one undesirable.

194 Hack, ‘Everyone Lived in Fear’, above n 32, 691.

195 Ibid 690.

196 Ibid 693.

304 This interpretation of Templer’s approach raises parallels with a theoretical

critique of soft power by Zahran and Ramos, who argue that Nye does not pay

sufficient attention to Gramsci’s concept of hegemony.197 Whereas Nye conceives of

hard and soft power as distinct, Gramsci considered coercion to be intrinsic to

consent, such that ‘any rupture of consent would bring forth instruments of

coercion’.198 This was certainly the case in Malaya, where villagers who failed to

behave in accordance with the wishes of government would be punished, such as by

having their benefits removed.199 By failing to sufficiently address the wider social

context in which soft power operates, ‘Nye creates the illusion of an aspect of power

that could exist by its own only through consent, ignoring the social reality populated

by intrinsic mechanisms of coercion’.200 In other words, soft power may be conceived

in the abstract as distinct from hard power, but in reality soft power tends to operate

as one aspect of a much larger coercive framework implemented by government.

Indeed, it seems that the classical theorists were more aware than Nye of this

complex convergence of hard and soft power in counter-insurgency. Galula believed

that ‘so intricate is the interplay between the political and the military actions that

they cannot be tidily separated’.201 He explained that ‘every military move has to be

197 Geraldo Zahran and Leonardo Ramos, ‘From Hegemony to Soft Power: Implications of a

Conceptual Change’ in Inderjeet Parmar and Michael Cox (eds), Soft Power and US Foreign Policy:

Theoretical, Historical and Contemporary Perspectives (Routledge, 2010) 12, 23-24, 26.

198 Ibid 21-22.

199 See Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 164-5; Stubbs, ‘From Search and

Destroy to Hearts and Minds’, above n 5, 111-112; Nagl, Learning to Eat Soup With a Knife, above n

2, 98; Moyar, above n 125, 128; Newsinger, above n 11, 53.

200 Zahran and Ramos, above n 197, 24.

201 Galula, above n 17, 5.

305 weighed with regard to its political effects, and vice versa’.202 For example, the prosecution of insurgents for criminal offences is clearly an exercise in hard power, and yet if done within acceptable limits it serves an important soft power function by creating a positive image that the government is successfully addressing the insurgency.203 Similarly, separating the population from the insurgents serves both hard and soft power functions: it helps the government to capture and kill the insurgents by making them easier to identify and by denying them supplies of food and weapons, but it also serves a soft power function by creating an image that the government is protecting the population from insurgent attacks.204 On closer inspection, then, the apparent distinction between hard and soft power approaches to counter-insurgency is not what it first seems. Hard and soft power are extremely difficult to separate in counter-insurgency, and when they are recognisably distinct it is because they provide two alternative sets of consequences as part of a single coercive attempt to control the population. Even Stubbs, who remains a strong advocate of Templer’s approach, explains that coercion and winning hearts and minds

‘should not be considered as a dichotomy, but rather as two poles of a continuum’.205

202 Ibid.

203 See Thompson, above n 1, 54.

204 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 106; Short, above n 137, 235-

236; Galula, above n 17, 82-83.

205 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 117. See also Stubbs, Hearts

and Minds in Guerrilla Warfare, above n 7, 147.

306 IV IS SOFT POWER MORALLY PREFERABLE TO HARD POWER?

The second component of smart power thinking is that soft power is morally preferable to hard power because it allows individuals greater autonomy. Templer’s efforts to win hearts and minds in Malaya suggest that there may be a superficial truth to this statement, but otherwise this kind of thinking obscures the ways in which soft power moulds others in accordance with a favoured worldview. The British experience in Malaya suggests that it is important to consider the broader coercive context in which soft power operates, as well as the ways in which soft power can reinforce prejudiced stereotypes of an orientalised ‘other’. It is also important to distinguish between uses of soft power that preserve or expand free choice, and those that leave individuals little capacity to freely determine the course of their own lives.

With regard to this final point, Malaya confirms an idea raised by the contrast between UK and Australian counter-terrorism: that soft power may or may not be consistent with autonomy, depending on whether it expands or limits choice, but it is not possible to apply a general rule as to the normative benefits of soft power.206

An initial point relates to the overall coercive framework of the New Villages.

It is difficult to say that soft power responses to the insurgency were consistent with autonomy when the Malayan population was provided with those benefits after being forcibly relocated into mass detention camps. Once again, context is crucial. Taken out of context, it may be said that education programs, healthcare and local elections allow individuals a greater capacity to determine the course of their own lives compared to mass detention, curfews and other coercive restrictions. However, the moral significance of that statement is severely diminished when those benefits are

206 See Chapter Three, Part IV.

307 provided to a population which is simultaneously subject to such extreme uses of hard

power. It does not seem a significant moral statement to say that Templer’s efforts to

provide basic services and encourage local elections were consistent with autonomy

when those individuals were simultaneously subject to mass relocation, detention,

curfews, searches, collective fines and other punishments. Despite any free choice

that Templer’s use of soft power provided the Malayan population, clearly their

capacity to exercise free choice was limited overall by the extraordinary physical

restrictions placed upon them. This suggests that it is necessary to consider the level

of freedom available to individuals when considering the extent to which soft power

can preserve or benefit their autonomy.207 Even if soft power grants individuals more

choices than hard power, the significance of this moral distinction is severely

diminished in a context in which hard power has significantly reduced their

instrumental capacity to adopt different courses of action.

Templer’s use of soft power also has to be considered within the broader

colonial context in which the Malayan Emergency took place. Once again, it is

possible to say in isolation that basic services and local elections are consistent with autonomy, but these efforts to win hearts and minds must be viewed as part of a wider attempt to modernise the colonies in line with Britain’s strategic interests and favoured worldview. This idea of the ‘civilizing mission’ or ‘modernizing mission’ is a major critique of classical counter-insurgency and how its principles have flowed into contemporary practice.208 Counter-insurgency has been described as a

207 On the difference between freedom and autonomy, see Chapter One, Part I(B).

208 Moritz Feichtinger, Stephan Malinowski and Chase Richards, ‘Transformative Invasions: Western

Post-9/11 Counterinsurgency and the Lessons of Colonialism’ (2012) 3(1) Humanity 35, 40. See also

Douglas Porch, ‘The Dangerous Myths and Dubious Promise of COIN’ (2011) 22(2) Small Wars &

308 ‘transformative invasion’ of foreign cultures which is designed to ‘contain violence,

to create democratic and Western-shaped societies, and to guarantee stability’.209 In

other words, counter-insurgency campaigns in the early Cold War era followed a

Marshall Plan logic: economic benefits were provided to foreign populations in order

to prevent the development of communist governments that would have threatened

the West’s strategic interests.210

This has two effects on the autonomy of those populations. First, it relies on a

paternalistic view of foreign cultures, which frames those populations as incapable of

helping themselves and affects their ability to participate in world politics. This raises

a similar problem to Chapter Two – of the capacity for soft power to reinforce

prejudiced stereotypes of a racialised ‘other’.211 Secondly, counter-insurgency operations significantly limit the capacity of foreign populations to freely determine their own political system and way of life, as they are forcibly encouraged to establish a country that is consistent with Western ideals. In this respect, winning hearts and minds in Malaya was not about expanding free choice and empowering communities; rather, it was about shaping those communities in line with a particular worldview.

The Malayan people were free to choose any political system they wished, so long as

Insurgencies 239, 248, 251-253; Mark T Berger and Douglas A Borer, ‘The Long War: Insurgency,

Counterinsurgency and Collapsing States’ (2007) 28(2) Third World Quarterly 197, 204-211; Sepp, above n 2, 221-222; Jeffrey H Michaels and Matthew Ford, ‘Bandwagonistas: Rhetorical

Redescription, Strategic Choice and the Politics of Counterinsurgency’ (2011) 22(2) Small Wars &

Insurgencies 352, 355.

209 Feichtinger, Malinowski and Richards, above n 208, 39.

210 Berger and Borer, above n 208, 205.

211 Chapter Two, Part IV(A).

309 it was ‘“democratic, equalitarian, scientific, economically advanced and

sovereign”’.212

There still may be some truth to the idea that soft power, removed from this wider coercive and colonial context, allows individuals greater choice than hard power. The range of benefits that Templer provided the population gave them more choices in their lives than they had when Briggs simply detained them in insanitary conditions. For the reasons outlined above, it is doubtful how significant this moral distinction is – but even if this proposition is accepted, it is clear that this logic does not apply equally to all uses of soft power. Local elections, for example, are a good example of how soft power can directly grant free choice to others. Templer’s psychological warfare campaign, on the other hand, suggests something different.

Templer relied on a range of different strategies for encouraging insurgent surrenders, including radio broadcasts, pamphlets, and films.213 Many of these were directed towards individual insurgents, such as a leaflet which congratulated Lim

Yook Kee on the birth of her baby and advised her to surrender for her own safety and the safety of her child.214 The leaflet included an image of a baby in a cot with the caption ‘“How safe and comfortable is this baby in a government maternity hospital!”’.215 A more general leaflet portrayed the communists as rabid dogs that

would bite any villager who fed them.216 An even more striking example was the use

212 Michaels and Ford, above n 208, 355.

213 See generally Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 180-184.

214 Nagl, Learning to Eat Soup With a Knife, above n 2, 94.

215 Ibid 94.

216 Karl Hack, ‘The Malayan Emergency as Counter-Insurgency Paradigm’ (2009) 32(3) Journal of

Strategic Studies 32(3) 383, 406.

310 of ‘voice aircraft’, an idea which Templer inherited from a US Army General in

Korea.217 These aircraft would fly low over the jungle and deliver messages to the insurgents. According to Nagl, 100 per cent of all surrendered insurgents by early

1955 had heard a voice aircraft.218 Many of these voice messages were also directed at individual insurgents. Anthony Short quotes the ‘unnerving’ experience of an insurgent being spoken to from above after a clash with military and police forces:

A day or two later the aircraft again broadcast to us. This time the broadcast was

directed at me and Tan Piow calling us by name and said that both of us no longer

had a leader and our livelihood would be very difficult. Make haste to leave the

jungle or else we will face danger if we hesitate. Surrender to the government for we

will be well treated.219

Nye categorises military psychological operations as examples of soft power,220 yet

these practices are hardly consistent with free choice. It may be true that the

insurgents had a greater capacity to resist this propaganda than they did detention

camps or bullets – but they were certainly not able to choose how to act free of

external influence. It would be entirely untenable to maintain that those individuals

were capable of exercising free choice when they were being followed by the aircraft

of a foreign government which was telling them how to act via loudspeaker. These

uses of soft power do not mitigate the negative effects of coercion by preserving

autonomy; they supplement hard power directly by constraining choice and by

217 Nagl, Learning to Eat Soup With a Knife, above n 2, 95.

218 Ibid 95.

219 Short, above n 137, 423.

220 Nye, Soft Power, above n 84, 116.

311 manipulating individuals into acting in ways that are favourable to government.

Manipulating individuals constitutes an ‘invasion of autonomy’ because it ‘perverts

the way that [a] person makes decisions, forms preferences, or adopts goals’.221 Put another way, and to draw a parallel with another theoretical critique of Nye, these uses of soft power undermine a person’s ‘ontological security’.222 They advocate a

particular representation of reality, and they threaten an audience with harm unless

that audience ‘submits, in words and in deed, to the terms of the speaker’s

viewpoint’.223 ‘In this way,’ Mattern argues, ‘soft power is not so soft after all’.224

Like the contrasting experiences of UK and Australian counter-terrorism, then,

Templer’s efforts to win hearts and minds demonstrate that there is nothing inherent

in the nature of soft power which makes it compatible with autonomy.225 Soft power

may or may not be compatible with autonomy, depending on the form it takes.

Indeed, it appears that soft power can take on two diametrically different forms in

government efforts to counter political violence. In some cases, such as encouraging

local elections, soft power can preserve autonomy because it is directly grants choices

to others. In other cases, soft power directly undermines autonomy because it is

designed to manipulate individuals by influencing and constraining choice.

221 Joseph Raz, The Morality of Freedom (Oxford University Press, first published 1986, 2009 ed) 377-

378.

222 Janice Bially Mattern, ‘Why “Soft Power” Isn’t So Soft: Representational Force and Attraction in

World Politics’ in Felix Berenskoetter and M J Williams (eds), Power in World Politics (Routledge,

2007) 98, 100.

223 Ibid 99.

224 Ibid 100.

225 See Chapter Two, Part IV; Chapter Three, Part IV. Contra Nye’s suggestion that this is the case: see discussion in Chapter One, Part I(B).

312

V ARE HARD POWER AND SOFT POWER COMPLEMENTARY?

The third component of smart power thinking is that hard power and soft power describe two complementary approaches to achieving policy objectives. As explained in Chapter One, this comprises three more specific ideas: that hard and soft power are compatible, the idea that combining hard and soft power is effective, and that a hard power strategy can be rebalanced in favour of soft power to achieve a smart power strategy. This section considers these three ideas with regard to the Malayan

Emergency and the historical lessons drawn by the classical theorists. In particular,

Part B considers the extent to which it is possible to draw general lessons about the effectiveness of smart power from the British experience in Malaya.

A Compatibility of Hard Power and Soft Power

There is no evidence that Templer’s use of collective punishments and other forms of hard power directly undermined his use of soft power in Malaya. In part, this could be a product of the way in which he combined hard and soft power: it is not strictly possible to say that one approach undermined the other when both approaches formed part of the same coercive method. Nonetheless, Templer’s experience does provide some evidence that soft power can support hard power by mitigating its negative effects. Stubbs explains that Templer developed the New Villages to mitigate the negative effects of coercive strategies employed during the Briggs Plan:

[T]he use of highly publicized punishments such as extended curfews and the food

denial operations did begin to drive a wedge between the guerrillas and the New

313 Villagers. However, some of the harsher measures were counter-productive, and the

use of the stick only perpetuated the general level of antipathy towards the

Government that had traditionally existed among the rural Chinese. It was to try to

minimize the effects of this antipathy and, if possible, to woo the rural Chinese

population away from the communists that the carrot, in the form of the development

of the new villages, was introduced.226

Stubbs argues that Templer’s approach was ‘widely welcomed by Malayans’,227 which suggests that his development of the New Villages helped to lessen the negative effects of coercion. On the other hand, if the coercive approaches employed by Briggs were sufficient to generate resentment amongst the population, then it is reasonable to assume that Templer’s use of similar coercive strategies – including curfews and collective punishments – would also have contributed to a hostile public.

In this respect, Templer’s use of coercion might equally have been working at cross- purposes with his development of the New Villages. He might have achieved a better working relationship between hard and soft power had he relied less on the same coercive strategies which he sought in the first place to improve. Certainly there is an incongruity in providing a population with education, healthcare and democratic elections whilst at the same time severely curtailing the liberty of that population.

This resonates with the Australian experience of counter-terrorism, in which the government is aiming to improve social cohesion whilst simultaneously retaining a range of extraordinary counter-terrorism powers and offences on the statute books.228

226 Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 168.

227 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 109.

228 See Chapter Three, Part V(A).

314 These tensions between hard and soft power can be seen more clearly in the lessons that the classical theorists have drawn from Malaya. On face value, counter- insurgency strategy describes three sets of mutually supporting objectives which require a combination of hard and soft power. The first relates to the government’s overarching objectives: the government must ruthlessly eliminate the insurgents, and it must also win the support of the surrounding population.229 The second relates to the role of law: the government must use the law to detain, punish and coerce, including through measures that fall outside the ‘peacetime limitations’ of the law,230 and it must simultaneously use the law to create an image of government as ‘fair, honest and dependable’.231 The third relates to intelligence: the government must collect intelligence about the population by subjecting it to surveillance measures within a controlled area, and it must simultaneously collect intelligence from the population by winning its support.232

When these sets of paired objectives are placed alongside each other, it becomes obvious that the smart power logic of combining hard and soft power is not as straightforward as it seems. The classical theorists are saying, on the one hand, that the government must do everything it can to defeat the insurgency, including through brutal measures outside the normal bounds of the law. On the other hand, they are saying that the government must maintain the support of the population and create an image of fairness and generosity. Certainly there is an inherent tension between these two positions, and the solution is not as simple as adopting both approaches at once.

229 Kitson, above n 19, 50-51; Thompson, above n 1, 146; Galula, above n 17, 61, 75-76, 89-90.

230 Galula, above n 17, 53.

231 Thompson, above n 1, 70.

232 Galula, above n 17, 50, 82.

315 For example, it seems unlikely that a population will be willing to volunteer

information about the insurgency while the government is simultaneously subjecting

that population to intensive surveillance, punishments and other coercive measures.

What the classical theorists are in fact describing are difficult policy and legal issues that are not susceptible to a simple smart power solution. How does a government balance the need to eliminate the insurgents with the need to maintain the support of the population? How does a government balance the need to discard ordinary legal principles for the purposes of security with the overarching need to maintain a fair and transparent system of law? How does a government balance the need to gather intelligence from the population with the need to conduct surveillance over that population to identify suspicious behaviour? In the same way that Nye glosses over a range of tensions underlying smart power thinking,233 the classical

counter-insurgency theorists gloss over these more difficult and important issues in

favour of a simple smart power logic. There are evident tensions in each set of paired

objectives described above, and yet the classical theorists describe them as mutually

supporting goals. In essence, the classical theorists state that the government’s

overarching objective must be to win the support of the population, and yet they

permit a substantial degree of extra-legal force which is inconsistent, or at least

certainly at odds, with that overarching aim.

It is possible that a government could strike a balance between hard and soft

power which avoided these tensions. For example, it is possible that a government

could achieve just the right amount of armed force – an amount which is sufficiently

severe to defeat the insurgency, without being so severe that it undermines the goal of

winning the support of the population. The problem is that counter-insurgency

233 See Chapter One, Part I.

316 strategy provides little insight into how these more difficult issues and tensions can be

resolved. As Paul Dixon argues, the inherent ambiguity in counter-insurgency

strategy leaves ample room for governments to develop contrasting responses which

undermine rather than complement each other in practice:

The phrase “hearts and minds” has been interpreted in highly divergent ways

implying radically different approaches to the use of coercion and consent within an

army or across a military coalition. If counter-insurgency theory is a guide to action

then this ambiguity could lead to inconsistencies with a less coercive approach being

deployed to win “hearts and minds” alongside a highly coercive approach which

undermines those pursuing the less coercive strategy.234

B Effectiveness of Combining Hard Power and Soft Power

The key lesson drawn by counter-insurgency theorists from the Malayan Emergency

is that the key to victory lies in combining hard and soft power.235 The current US

counter-insurgency manual claims that the British experience in Malaya ‘provides

lessons applicable to combating any insurgency’.236 In other words, the Malayan

Emergency provides the historical foundation for the idea that combining hard and

234 Dixon, ‘“Hearts and Minds”? British Counter-Insurgency from Malaya to Iraq’, above n 5, 367.

235 British Army Field Manual, above n 32, CS5-1 [1]; FM 3-24, above n 3, 235; Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 118; Nagl, Learning to Eat Soup With a Knife, above n 2,

107.

236 FM 3-24, above n 3, 235. See also Moyar, above n 125, 130: ‘The perceived lessons of the Malayan

Emergency have informed much of the advice provided to American counterinsurgents in the twenty- first century’.

317 soft power is an effective method for defeating insurgencies. There are two significant

problems with this approach. The first is that it ignores competing accounts as to why

the British succeeded in defeating the insurgency. The second is that it ignores a range

of contextual factors surrounding the Malayan Emergency which are not present in

other counter-insurgency campaigns. The result is that smart power thinking in

counter-insurgency, including its contemporary form in the Middle East, is based on a

simplistic, mythologised account of a complex historical reality.

A significant competing account of why the British succeeded in Malaya is

offered by historian Karl Hack. Hack argues that the Briggs Plan was the decisive

factor in the British victory, and that Templer’s efforts to win hearts and minds only

optimised the success of the resettlement camps.237 Hack relies on statistics showing a

sharp increase in insurgent casualties between April 1950 and September 1952 and a

sharp decline in insurgent attacks between May and October 1952.238 For example, the number of rubber trees slashed by insurgents during this period ‘collapsed’ from

70 000 to less than 1000 per month.239 He also refers to orders issued by the communist leader Chin Peng to his forces in October 1951 (known as the ‘October

Resolutions’) which contained a range of damage control strategies for maintaining the insurgency.240 Hack argues that these were the crucial signs of defeat, and he attributes this turnaround to the success of the Briggs Plan – particularly because the

237 Karl Hack, ‘The Malayan Emergency as Counter-Insurgency Paradigm’, above n 216, 384-385.

238 Ibid 391, 400.

239 Ibid 399.

240 Ibid 396-399.

318 resettlement camps denied the insurgents crucial supplies of food and weapons.241 He argues that Templer won hearts and minds once Briggs had already secured victory:

[T]he assumption that the campaign was turned mainly in 1952-1954 – which

underpins lessons traditionally taken from Malaya – is wrong. Instead, the back of the

Emergency as a high-level insurgency was broken in 1950-52. This happened with a

population control and security approach to the fore[.]242

Hack’s account is significant because it suggests that a different lesson about hard and soft power might be drawn from Malaya. He suggests that the hard power approach of the resettlement camps – and not Templer’s combination of hard and soft power – was the decisive factor in the British victory. Hack does recognise that Templer’s contributions helped to ‘maximise the advantage’ of the Briggs Plan,243 but his account suggests a significantly less important role for soft power. Hack’s account suggests that the most effective method for defeating insurgencies is to apply brutal population control methods, and that the success of these hard power measures can be assisted or optimised through the addition of soft power. In this scenario, soft power is something of an optional extra, and not a decisive or determining factor in victory.

Stubbs counters Hack’s interpretation by claiming that the statistics he relies upon are not reliable indicators of defeat,244 although Hack’s interpretation is

241 Ibid 397.

242 Ibid 384.

243 Ibid 410.

244 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 115. Stubbs also argues that the

MCP was about to launch its own hearts and minds campaign when Templer arrived in early 1952, so

319 supported by several other historical accounts.245 In particular, several accounts suggest that intelligence played the decisive role in the British victory, and that this intelligence substantially improved once the population was relocated into the resettlement camps.246 Comber argues that the insurgency was defeated due to the intelligence that Special Branch collected on the whereabouts of insurgents, as well as the efforts of ‘turned’ enemy personnel who encouraged defections and surrenders:

Special Branch’s success in exploiting and ‘turning’ surrendered (and sometimes

captured) guerrillas to co-operate with the security forces and go straight back into

the jungle to attack their erstwhile comrades-in-arms or induce them to surrender,

played a critical part in the intelligence war. It enabled the security forces to inflict

casualties on the guerrillas and, more importantly, it led to the mass defections … that

led ultimately to the collapse of the communist uprising.247

Comber explains that intelligence collection was difficult during the ‘search and destroy’ phase of the British campaign, but became significantly easier during the

Templer’s efforts ‘proved timely and critical’ in countering this imminent change in strategy: see

Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 115-116.

245 See especially Newsinger, above n 11, 51: ‘In retrospect, resettlement and regroupment can be seen as the measures that broke the back of the Communist revolt, that by isolating the MRLA from the

Chinese population, made its defeat inevitable’. See also Short, above n 137, 392, who believes that the

‘most notable achievement’ of the Briggs Plan was to divide the guerrillas from the population, thereby denying them supplies of food and weapons.

246 Short, above n 137, 502; Newsinger, above n 11, 54. Stubbs also concedes this point, despite the importance he places on soft power. He states that ‘[a] key to the success of any operation was intelligence’: Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 159.

247 Comber, above n 157, 8.

320 Briggs Plan as the squatters were concentrated in defined areas.248 As such, Special

Branch was able ‘to develop a wide network of “spies” and informers among them’.249 It is important to note that Comber worked for Special Branch in Malaya, so there are obvious reasons why he might want to over-emphasise the importance of intelligence. His account is supported by other professional historians, however. Most notably, Anthony Short claims that ‘[o]ther things being equal it is perhaps obvious that the key to counter-insurgency in Malaya was intelligence’.250 If this is the case,

then the mass surrenders which led to the end of the Emergency were not due to the

elections that Templer encouraged, but rather because the British Special Branch had

created a network of spies which destabilised the insurgent organisation from within.

In combination, these alternative accounts of why the British succeeded in

Malaya suggest that hard power (through a combination of the resettlement program

and intelligence gathering) played a more significant role in defeating the communist

insurgency than Templer’s efforts to win hearts and minds. If this was indeed the

case, then smart power thinking in counter-insurgency is based on an erroneous (or at

least overly simplistic) account of the British experience in Malaya. The classical

theorists suggest that the most effective method for defeating insurgencies is to

supplement hard power with significant soft power efforts, and yet on closer

inspection the events in Malaya suggest something different. The Malayan

248 Ibid 81, 149, 285.

249 Ibid 149.

250 Short, above n 137, 502. See also Newsinger, above n 11, 54: ‘It was … the intelligence gathered by

Special Branch from its growing network of informers and agents and from the interrogation and turning of prisoners, that made possible the successful hunting down of the elusive guerrillas’.

321 Emergency instead provides substantial evidence that insurgencies can be defeated by

supplementing population control methods with a pervasive intelligence apparatus.

It is impossible to remove Templer’s efforts from this equation, as it was the

granting of independence which eventually allowed the new Malayan government to

lift the state of emergency. It is impossible to know whether a hard power approach

comprising the resettlement camps and intelligence gathering would in itself have been sufficient to defeat the insurgency. At the very least, it seems unlikely that the

Emergency would have been resolved without the British government ultimately granting independence to the Malayan people. Templer’s use of soft power must therefore be acknowledged as a significant contribution to the British campaign, but the importance of his efforts to win hearts and minds should not be overstated. At most, what can be said about the Malayan Emergency is that the British successfully defeated an insurgency by applying a hearts and minds strategy, but this hearts and minds strategy followed a brutal resettlement program in which some 400 000

Malayans were forcibly relocated from their homes and then infiltrated with spies and informers. This gives some support to the idea that combining hard and soft power is an effective method for defeating insurgencies, but it is hardly the ‘balanced’ approach that Nye calls for in contemporary policy,251 and it is hardly sufficient to recommend that a smart power approach should be adopted in all future insurgencies.

This basic idea that Malaya provides a template for future counter-insurgency campaigns is also extremely problematic. The smart power logic of counter- insurgency relies on the premise that it is possible to generalise from the British experience in Malaya to counter-insurgency campaigns in other countries and eras.

Because Templer was able to combine hard and soft power effectively in Malaya, or

251 Nye, Soft Power, above n 84, 147.

322 so the argument goes, combining hard and soft power will therefore prove an

effective strategy in all other counter-insurgency campaigns.252 The problem with this logic is that it fails to recognise a range of contextual factors present in Malaya that are not necessarily present in other counter-insurgency campaigns. Several scholars have noted a range of unique factors present in Malaya which make it extremely difficult to generalise from the British experience: in particular, Britain was a colonial power with significant military and economic superiority over the insurgents, the

MCP was supported only by the local Chinese community and could not source any aid from overseas sources, and Britain was lucky in experiencing an economic boom after the Korean War.253 Perhaps above all, the British government was able to resolve the insurgency by withdrawing from Malaya – a political concession which may not be available or politically viable in other circumstances.

In summary, the basic lesson drawn from the Malayan Emergency is that combining hard and soft power is the key to victory in counter-insurgency, and yet the historical reality of Malaya is significantly more complex. Competing accounts of the

Emergency make it difficult to determine which was the most important factor in the

British victory, and there were in any case a number of unique contextual factors which make it difficult to draw any general lessons from the conflict. Viewed in this more complex light, the Malayan Emergency provides one specific historical scenario in which soft power supplemented a brutal hard power strategy that may have played a more significant role in defeating the insurgency. It is a significant leap in logic to claim that combining hard and soft power therefore provides an effective strategy for

252 See, eg, FM 3-24, above n 3, 235; Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n

5, 118.

253 Stubbs, Hearts and Minds in Guerrilla Warfare, above n 7, 254; Newsinger, above n 11, 56, 58-59.

323 defeating all other insurgencies. It is also important to recognise that Malaya is the only colonial counter-insurgency campaign which provides a viable candidate to assess smart power thinking in this regard. While it sounds attractive and intuitive, the idea that smart power is an effective method for countering insurgencies is supported by very little historical evidence.254 When one considers that there is little if any direct evidence supporting the effectiveness of smart power strategies in contemporary counter-terrorism,255 it becomes very difficult to place much confidence in this core aspect of Nye’s theory.

254 Many contemporary scholars have noted the dubious historical basis for the claims of counter- insurgency theorists. Porch argues that counter-insurgency principles are ‘at best anchored in selective historical memory, when not fantasy fabrications’: Porch, above n 208, 240. He concludes that

‘[c]laims of COIN success rest on wobbly historical foundations’: Porch, above n 208, 249. Hack argues that ‘FM 3-24’s “lessons” from Malaya are not so much deduced by analysis of the Emergency, as projected backwards onto it in order to justify preferred contemporary policies’: Hack, ‘The

Malayan Emergency as Counter-Insurgency Paradigm’, above n 216, 396. Ucko argues that the

Malayan Emergency has been ‘over-farmed for useful parallels, some of which show scant regard for the campaign’s specificity and context’: Ucko, ‘The Malayan Emergency’, above n 120, 14. Marshall argues that counter-insurgency strategy ‘involves a significant degree of selective memory, and is furthermore actually positively dangerous for drawing lessons for the present, due to the manner in which it ignores the broader strategic-historical context within which counterinsurgencies in the past occurred’: Alex Marshall, ‘Imperial Nostalgia, the Liberal Lie, and the Perils of Postmodern

Counterinsurgency’ (2010) 21(2) Small Wars & Insurgencies 233, 234.

255 See Chapter Two, Part V(B); Chapter Three, Part V(B).

324 C Capacity to Rebalance Hard Power Strategy

A final issue relates to whether it is possible for governments to develop a hard power

strategy into one which achieves an appropriate balance between hard and soft power.

With regard to Malaya, the answer to this question depends on the extent to which

Templer’s hearts and minds strategy differed from the Briggs Plan which preceded it.

Advocates of Templer’s approach, such as Stubbs and Nagl, argue that Templer was

able to achieve a ‘significant change in the direction of the government’s policy’.256

According to this view, Templer effected a dramatic shift in institutional culture, such

that the British administration thereafter placed immense value on soft power. If this

is the case, then Malaya provides a significant example of how a government

developed a hard power strategy into a smart power strategy.

Other historians are more critical, arguing that Templer merely amended the

Briggs Plan so that it was more effective but otherwise achieved no such dramatic

change.257 French, for example, argues that coercion remained the defining characteristic of the British strategy throughout the remaining years of the campaign.258 Given Templer’s wide use of hard power strategies first implemented

under the Briggs Plan – such as mass detention camps, curfews, intelligence

256 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 5, 109.

257 Comber, above n 157, 174; Newsinger, above n 11, 53; Moyar, above n 125, 127, 132. Even Stubbs

notes the similarities between the Briggs Plan and Templer’s efforts, despite his evident support for

Templer’s approach. He notes that the Briggs Plan provided some of the key foundations for what later

became known as the “hearts and minds” strategy’: Stubbs, ‘From Search and Destroy to Hearts and

Minds’, above n 5, 109.

258 French, The British Way in Counter-Insurgency, above n 8; David French, ‘Nasty Not Nice: British

Counter-Insurgency Doctrine and Practice, 1945-1967’ (2012) 23(4/5) Small Wars & Insurgencies 744.

325 collection and collective punishments – this appears the more convincing account.

Indeed, Templer himself is quoted as saying that the credit for the new villages ‘must

be given entirely to [Briggs] ... All I did was make [the Briggs Plan] work’.259

If this suggests anything about a government’s ability to develop a smart power strategy – and given the specific historical context of the Emergency it might suggest no such lesson at all – it is that a government can make significant investments in soft power, but this increased reliance on soft power will not mean that the coercive strategies which preceded it will be removed or dismantled. As discussed in previous chapters,260 this suggests that it is extremely difficult for a government to reduce its reliance on hard power once a hard power strategy has been implemented.

In other words, the Malayan Emergency suggests that governments can supplement coercion with soft power, and this can go some way in helping to counter political violence effectively, but it suggests little about the ability of governments to achieve a smart power strategy by reducing their reliance on hard power. In addition, to the extent that any such limited change is possible, it will depend heavily on courageous leadership, an institutional willingness to adopt soft power approaches, and ‘strategic patience to see it through’.261 The fact that Malaya stands alone as the archetypal

counter-insurgency campaign suggests that such leadership qualities and political

willingness are rare qualities indeed.

259 Comber, above n 157, 174.

260 Chapter Two, Part V(C); Chapter Three, Part V(C).

261 Commodore Steven Jermy Rn, Strategy for Action: Using Force Wisely in the 21st Century

(Knightstone, 2011) 264. See generally Moyar, above n 126, 109-132; Nagl, Learning to Eat Soup

With a Knife, above n 2.

326 VI CONCLUSIONS

Contemporary smart power approaches to counter-insurgency can be traced back to the post-WW2 era in which the British and French militaries faced violent uprisings in several of their colonies. As a result of these anti-colonial struggles, Kitson,

Thompson and Galula wrote works of counter-insurgency strategy which have remained influential to the present day. The basic premise underlying counter- insurgency strategy is that insurgents can only defeat a larger military force by hiding amongst a surrounding population. As such, the government should supplement its military efforts to defeat the insurgents with political efforts to win the support of the population. This aligns closely with smart power thinking. Like Nye’s theory, counter-insurgency strategy suggests that governments can best defeat insurgencies by combining two contrasting approaches, one morally preferable to the other.

In particular, smart power thinking in counter-insurgency can be traced back to the Malayan Emergency of 1948-1960. The traditional lesson drawn from Malaya is that Sir Gerald Templer was able to defeat the communist uprising by combining coercion with efforts to win hearts and minds. As a result of Templer’s efforts, the phrase ‘winning hearts and minds’ has become hackneyed and ubiquitous, and it is likely that many invoke this rhetoric without understanding its historical origins. This is important, because on closer inspection the historical origins of hearts and minds strategies are significantly more complex than smart power thinking suggests.

With regard to the first component of smart power thinking, the Malayan

Emergency suggests that hard and soft power are not two distinct methods for influencing behaviour but rather two components of a single coercive method for controlling a population. Templer aimed to influence the Malayan villagers by relying

327 on a flexible combination of benefits and punishments within the constructed space of the New Villages, and by inducing the villagers to behave through the prospect of living in a White Area. In this context, it is overly simplistic to talk about two separate and distinct approaches to influencing behaviour. Stripped of all historical context, it may be possible to describe hard and soft power as meaningfully distinct, but considered within the coercive framework of the New Villages, the idea that hard and soft power are frequently imbricated is certainly the more striking lesson.

With regard to the second component of smart power thinking, Templer’s efforts to win hearts and minds suggest that soft power does not expand choice and empower communities but rather shapes and transforms foreign cultures in accordance with a favoured worldview. Again, it is crucial to consider context: in isolation, it is possible to describe education programs, clean water and healthcare systems as morally preferable to detention camps – but when those benefits are provided to a population that has been forcibly relocated into mass detention camps, the moral significance of that distinction is severely diminished. Certainly it is not possible to describe the Malayan population as exercising free choice when they were controlled by a foreign power and subject to such brutal population control measures.

In addition, Templer’s use of voice aircraft and other psychological operations provide a telling insight that soft power is frequently controlling rather than empowering. This suggests that a clear line should be drawn between uses of soft power which expand choice and mitigate the effects of hard power, and those which supplement hard power directly by making it easier to capture or kill a perceived enemy. This does not mean that soft power cannot be consistent with autonomy, but it certainly undermines the prospect that any such universal rule can be applied.

328 The classical era of counter-insurgency also provides significant evidence contrary to the third component of smart power thinking. There are three issues relating to this third limb: compatibility, effectiveness, and rebalancing. First,

Templer’s approach provides some evidence that soft power can support hard power by mitigating its negative effects. However, there is still an obvious tension in using soft power to improve the government’s image in the eyes of the population whilst simultaneously damaging that image through the use of significant coercion. Similar tensions can be seen in the approach of the classical theorists. The classical theorists recommend that governments act in accordance with the law and create a fair and transparent system of government, and yet at the same time they recommend a range of extraordinary measures which are at odds with this approach, such as curfews, forced relocation and mass detention. Which one of these objectives the government should favour, or how they can balance both, is omitted in favour of a simple smart power solution. This is a fallacy of strategy and logic in which the classical theorists ignore obvious tensions between competing imperatives, and in which smart power provides an attractive substitute for resolving more complex law and policy issues.

Secondly, Templer’s efforts to win hearts and minds provide the primary historical basis for the idea that combining hard and soft power is an effective method for defeating insurgencies. In the absence of Templer’s efforts, it is unlikely that the classical theorists would have ascribed such importance to winning hearts and minds through soft power, and it is unlikely that any such approach would have flowed into contemporary practice. And yet, it is curious that the counter-insurgency theorists would draw such a simple smart power lesson from Malaya when the historical reality was significantly more complex. Several other historical accounts suggest that hard power proved a more effective strategy for defeating the insurgency than Templer’s

329 combination of hard and soft power, and the specific political and historical context of

the Malayan Emergency will never be replicated. Templer’s efforts might therefore

provide some general, commonsense insights into countering insurgencies – such as

the idea that excessive coercion can generate resentment amongst a population – but it

is too far a conceptual leap to assume that a smart power strategy will provide an

effective solution in all future counter-insurgency campaigns.

Lastly, the Malayan Emergency provides some evidence that it is possible to

develop a hard power strategy into a smart power strategy, but such change will

require courageous leadership and immense political will. These appear to be rare

qualities amongst the many counter-insurgency campaigns that have been fought throughout the 20th century. Even where a government invests significant resources in soft power, it is unlikely that this will see the dismantling of an existing coercive framework. It cannot be denied that Templer implemented some significant social reforms, but his efforts provide little evidence that governments can achieve a smart power strategy by reducing their reliance on hard power.

In short, the Malayan Emergency provides a dubious historical basis for smart power thinking in counter-insurgency. Indeed, it is worth noting that Templer himself would not likely have encouraged such broad lessons about the benefits of smart power to be drawn from his experience. According to Moyar, Templer promoted doctrine but was ‘pragmatic and suspicious of abstractions, particularly theories that purported to apply everywhere’.262 Advocates of smart power strategies should give serious consideration to the fact that Templer himself referred to ‘winning hearts and minds’ as ‘that nauseating phrase I think I invented’.263

262 Moyar, above n 125, 127.

263 Dixon, ‘“Hearts and Minds”? British Counter-Insurgency from Malaya to Iraq’, above n 5, 363.

330 5

SMART POWER THINKING IN CONTEMPORARY COUNTER-

INSURGENCY

Introduction

Soft power was integrated into military strategy. Hard power was used to clear an

area of insurgents and to hold it, and the soft power of building roads, clinics and

schools filled in behind.1

- Joseph S Nye Jr, The Future of Power (2011), describing the Surge in Iraq

On 20 March 2003, the US launched a ‘shock and awe’ invasion of Iraq which led to the fall of Saddam Hussein’s regime after only three weeks of combat operations. The

Iraqi army stood little chance against the overwhelming firepower of the US military, but when the dust settled it became clear that the billions spent on cruise missiles, stealth bombers, Apache helicopters and Abrams tanks had done more to create violence than to counter it. Over the next few years, US and allied troops faced a violent insurgency characterised by assassinations, suicide bombings, rocket-

1 Joseph S Nye Jr, The Future of Power (Public Affairs, 2011) 37.

331 propelled grenade (RPG) attacks and roadside bombings with improvised explosive

devices (IEDs). In January 2007, President Bush announced an increase in troop

numbers and outlined a new strategy, to be led by General David Petraeus, which

would focus on protecting and building relationships with Iraqi communities. This

approach, which came to be known as ‘The Surge’, was based in counter-insurgency

principles developed in the early Cold War era. These counter-insurgency principles

were outlined in a new US counter-insurgency field manual (‘FM 3-24’),2 which was

written by General Petraeus and a team of counter-insurgency experts. Like classical

counter-insurgency, FM 3-24 reflects a smart power logic in which armed force

should be supplemented with political efforts to win the support of the population.

This chapter tests the three components of smart power thinking with regard to

US counter-insurgency efforts in Iraq. As such, the chapter continues the inquiry in

the three previous chapters as to whether Nye’s theory accurately describes Western

efforts to counter political violence. In combination, the four case studies in this thesis

demonstrate a number of recurring problems when Nye’s core ideas are examined

across different disciplinary boundaries and historical contexts. These problems

surround the convergence of hard and soft power, the dangers of soft power, the

inherent tensions between hard and soft power, the lack of evidence supporting the

effectiveness of smart power, and the difficulties in developing hard power strategies

into smart power strategies.

Part I of this chapter outlines the key principles of US counter-insurgency in

the military manual FM 3-24. It explains how a smart power approach to counter-

insurgency is reflected not only in the overall combination of armed force and civil

2 US Army/Marine Corps, Counterinsurgency Field Manual: U.S. Army Field Manual No. 3-24 –

Marine Corps Warfighting Publication No. 3-33.5 (University of Chicago Press, 2007) (‘FM 3-24’).

332 reconstruction, but also in the roles played by law and intelligence. In doing so, Part I

compares this contemporary approach to classical counter-insurgency strategy. There

is significant overlap between classical and contemporary counter-insurgency

strategy, although the contemporary approach reveals a greater focus on human rights

and international law which has developed since the time of the classical theorists.

Part II explains how the smart power principles in FM 3-24 were applied in

Iraq during the Surge. After providing an overview of the Surge, Part II describes the

roles played by two joint civilian-military units: ‘Provincial Reconstruction Teams’

and ‘Human Terrain Teams’. These units are both key mechanisms by which the US

military ‘deployed’ soft power in Iraq. Part II concludes by explaining the orthodox

account of how the Surge reduced violence in Iraq during 2007 and 2008. This account supports the idea that smart power is key to success in counter-insurgency.

Parts III-V test the three components of smart power thinking in turn. First,

Part III considers the extent to which hard power and soft power approaches during the Surge were distinct. Secondly, Part IV considers the extent to which soft power approaches during the Surge allowed individuals greater autonomy compared to hard power. Thirdly, Part V considers the extent to which hard and soft power approaches during the Surge were complementary. To answer this third question, Part V relies in part on alternative accounts of why violence reduced in Iraq during 2007 and 2008.

As with the Malayan Emergency, these alternative accounts suggest that it is difficult to draw general lessons about the effectiveness of smart power from the Western experience of counter-insurgency. Indeed, the US experience in Iraq appears to confirm the idea, raised in the previous chapter with regard to Malaya,3 that hard power in the form of severe population control measures is more effective than smart

3 See Chapter Four, Part V(B).

333 power in defeating insurgencies. If this is the case, then Western militaries may have

developed an effective strategy for defeating insurgencies, but not one that balances

hard and soft power judiciously and mitigates the dangers of coercion.

I SMART POWER THINKING IN FM 3-24

This section sets out the key principles of contemporary counter-insurgency strategy

as found in the US counter-insurgency field manual FM 3-24.4 It explains how a

smart power approach is reflected not only in the overall combination of armed force

and civil reconstruction, but also in the roles played by law and intelligence.

A Key Principles

The US counter-insurgency field manual FM 3-24 reflects the basic principles of

counter-insurgency that were developed by Kitson, Thompson, and Galula in the early

Cold War era.5 The introduction to FM 3-24, written by Sarah Sewall of Harvard

University, states that the manual ‘is based on principles learned during Britain’s early period of imperial policing and relearned during responses to twentieth century

4 FM 3-24, above n 2. A close analogue to FM 3-24 exists in the current British Army Field Manual:

British Army, British Army Field Manual: Volume 1 Part 10 – Countering Insurgency (October 2009,

Army Code 71876) (‘British Army Field Manual’).

5 See Robert Thompson, Defeating Communist Insurgency: Experiences from Malaya and Vietnam

(Chatto & Windus, 1974); David Galula, Counterinsurgency Warfare: Theory and Practice (Praeger

Security International, 1964, 2006 ed); Frank Kitson, Low Intensity Operations: Subversion,

Insurgency, Peace-Keeping (Faber & Faber, 1971); and discussion in Chapter Four, Part I.

334 independence struggles in Malaya and Kenya’.6 Similar to the classical theorists, the

manual defines insurgency as an ‘organized movement aimed at the overthrow of a

constituted government through the use of subversion and armed conflict’.7 It defines

counter-insurgency as the ‘military, paramilitary, political, economic, psychological,

and civic actions taken by a government to defeat insurgency’.8 As Kilcullen notes,

this means that counter-insurgency is basically ‘whatever governments do to defeat

rebellions’,9 although the manual reflects the basic principles of classical counter-

insurgency. It describes a ‘population-centred approach’ in which the ‘real battle is

for civilian support’,10 and in which the government should avoid excessive force.11

FM 3-24 expresses these basic principles through various ‘paradoxes’ of counter-insurgency. These are not strictly paradoxes, but they provide pithy statements of the logic underlying contemporary counter-insurgency operations.

Three of these paradoxes reflect the basic principles of counter-insurgency as follows:

• SOMETIMES, THE MORE FORCE IS USED, THE LESS EFFECTIVE IT IS

• SOMETIMES DOING NOTHING IS THE BEST REACTION

• SOME OF THE BEST WEAPONS FOR COUNTERINSURGENTS DO NOT

SHOOT12

6 FM 3-24, above n 2, xxiv.

7 Ibid [1-2].

8 Ibid.

9 David Kilcullen, Counterinsurgency (Oxford University Press, 2010) 2.

10 FM 3-24, above n 2, xxv.

11 See ibid [2-4], [1-141].

12 Ibid [1-150],[1-152],[1-153] (capitalisation in original). The remaining paradoxes express similar ideas and are as follows: ‘Sometimes, the More You Protect Your Force, the Less Secure You May

335

The first paradox is based on the idea that excessive force, as the US military learnt

through the initial invasion of Iraq, can create more enemies than it kills. As the

manual notes, ‘[a]n operation that kills five insurgents is counterproductive if

collateral damage leads to the recruitment of fifty more insurgents’.13 The second is based on the idea that insurgents frequently use terrorism and other tactics to provoke a government into overreacting with excessive force. The recommended response is not to give in to this temptation but to calmly assess all possible courses of action, including taking no action at all.14 The third paradox reflects the idea that long-term

success in counter-insurgency will not come from ‘bombs and bullets’ but from

sustained efforts to build a strong economy and increase political participation.15

In addition to these basic principles, two major recurring concepts in FM 3-24 are the rule of law and legitimacy. This is one of the most striking features of contemporary US doctrine: as Nachbar remarks, if the manual’s 30 references to the rule of law are a form of ‘attachment’, then its 124 references to legitimacy represent

Be’; ‘The More Successful the Counterinsurgency Is, the Less Force Can Be Used and the More Risk

Must Be Accepted’, ‘The Host Nation Doing Something Tolerably is Normally Better than Us Doing it

Well’, ‘If a Tactic Works This Week, it Might Not Work Next Week; If It Works in this Province, It

Might Not Work In the Next’, ‘Tactical Success Guarantees Nothing’, and ‘Many Important Decisions

Are Not Made By Generals’: see ibid [1-49]-[1-157]. The British Army Field Manual includes a similar list: see British Army Field Manual, above n 4, 3-22.

13 FM 3-24, above n 2, [1-141].

14 Ibid [1-151].

15 Ibid [1-153].

336 ‘something closer to devotion’.16 The manual states clearly that establishing the rule of law is a ‘key goal and end state’ of counter-insurgency operations.17 The manual

does not formally define the rule of law – a significant and curious omission, given

the importance that the manual ascribes to the concept – although it describes the

concept obliquely as a government’s ‘respect for preexisting and impersonal legal

rules’.18 It lists three key aspects of the rule of law as being a democratic government, sustainable security institutions, and respect for fundamental human rights.19 These are said to play a key role in helping to defeat the insurgency because they improve the government’s legitimacy in the eyes of the population.20 If a government is legitimate in the eyes of the population – that is, if it governs primarily with their consent rather than through coercion – then the government will have the necessary support to defeat the insurgency.21 The manual lists six indicators of legitimacy,

which in effect provide a list of political goals for counter-insurgency operations:

• The ability to provide security for the populace (including protection from

internal and external threats)

• Selection of leaders at a frequency and in a manner considered just and fair

by a substantial majority of the populace

16 Thomas B Nachbar, ‘The Use of Law in Counterinsurgency’ (2011) 213 Military Law Review 140,

149.

17 FM 3-24, above n 2, [D-38].

18 Ibid [1-119].

19 Ibid [D-38]. Some problems with concepts of the rule of law in counter-insurgency strategy are considered below in Part IV(A).

20 Ibid [1-119].

21 Ibid [1-113]-[1-114], [1-116], [1-119], [1-132].

337 • A high level of popular participation in or support for political processes

• A culturally acceptable level of corruption

• A culturally acceptable level and rate of political, economic, and social

development

• A high level of regime acceptance by major social institutions22

In its focus on human rights, the rule of law and legitimacy, contemporary counter-

insurgency strategy has evolved from its colonial form in which the classical theorists

allowed significant scope for state brutality. Whereas the classical theorists

recommended that governments burn down villages or relocate and detain entire populations if necessary,23 FM 3-24 claims that it is ‘cognizant of international rights standards, expectations of accountability, and the transparency that accompanies the modern world’.24 Whether these standards are met in practice is another issue,25

although it is notable that the US military has made an effort to distance itself from

counter-insurgency’s brutal past. On a rhetorical level at least, there is a humanitarian

flavour to FM 3-24 which was not present in the works of the classical theorists.

22 Ibid [1-116].

23 See Thompson, above n 5, 146-147; Galula, above n 5, 79.

24 FM 3-24, above n 2, xxxiii.

25 For example, it is clear that many reconstruction efforts in Iraq were highly vulnerable to fraud and corruption. By May 2010, investigations by the Special Inspector General for Iraq Reconstruction

(SIGIR) had led to 42 indictments, 32 convictions and $72.4m in fines for fraud and corruption relating to Iraq’s reconstruction efforts. See Evidence to Commission on Wartime Contracting in Iraq and

Afghanistan, ‘How Good Is Our System for Curbing Fraud, Waste, and Abuse?’, Washington, 24 May

2010 (Ginger M Cruz, Deputy Inspector General, Office of the Special Inspector General for Iraq

Reconstruction) 2.

338 This is not to suggest that contemporary counter-insurgency is simply a

‘friendly’ approach to warfare which is equivalent to humanitarian aid or even

peacekeeping operations. Like classical counter-insurgency strategy, FM 3-24 recommends a range of hard power approaches which would be considered exceptional in other contexts – including combat operations, but also curfews, law enforcement operations, and other surveillance measures directed at the general population.26 These hard power strategies have been tempered by an awareness of

contemporary rights standards,27 but they are nonetheless severe. Perhaps the clearest

expression of the violence inherent in counter-insurgency is given by David Kilcullen.

Kilcullen was senior counter-insurgency advisor to General Petraeus in Iraq, and his

academic publications are considered alongside FM 3-24 as a key component of contemporary counter-insurgency strategy (much like the works produced by

Thompson, Kitson and Galula in the classical era).28 Kilcullen states unashamedly

that counter-insurgency requires as much brutality as the relevant laws will permit:

[M]ake no mistake: counterinsurgency is war, and war is inherently violent. Killing

the enemy is, and always will be, a key part of guerrilla warfare. Some insurgents at

the irreconcilable extremes simply cannot be co-opted or won over; they must be

26 See, eg, FM 3-24, above n 2, [5-35]-[5-39], [5-71]-[5-74]. These hard power measures are explored further below.

27 See ibid [1-119], [1-131], [D-38], [7-38], [7-44].

28 See Kilcullen, Counterinsurgency, above n 9; David Kilcullen, The Accidental Guerrilla: Fighting

Small Wars in the Midst of a Big One (Oxford University Press, 2009); David Kilcullen, ‘Counter-

insurgency Redux’ (2006/7) 48(4) Survival 111; David J Kilcullen, ‘Countering Global Insurgency’

(2005) 28(4) Journal of Strategic Studies 597.

339 hunted down, killed or captured, and this is necessarily a ruthless process conducted

with the utmost energy that the laws of war permit.29

In combination with the other basic principles outlined above, this call to arms shows the diametrically opposed approaches that counter-insurgency requires. The manual refers to this combination of military and civilian activities as ‘unity of effort’.30 First, the government requires a hard power approach for capturing and killing insurgents which pushes the boundaries of the law in its brutality. In addition, the government requires a soft power approach which focuses on developing the rule of law, upholding human rights, and improving the legitimacy of the government in the eyes of the population. In combination, these two methods describe a two-pronged, smart power strategy. Contemporary counter-insurgency requires governments to be both brutal and benevolent – and, seemingly, as brutal and benevolent as they can be. The next sections explore these contrasting hard and soft approaches in more detail.

B Armed Force and Civil Reconstruction

In contemporary counter-insurgency, the most obvious combination of hard and soft can be seen in the combination of armed force with a civil reconstruction program for providing essential services and developing the local economy. This is similar to the overall approach of the classical theorists,31 although FM 3-24 expresses the idea through various ‘logical lines of operation’ (LLOs). An LLO is a ‘conceptual

29 Kilcullen, Counterinsurgency, above n 9, 4.

30 See FM 3-24, above n 2, 53.

31 See Chapter Four, Part I.

340 category’ via which the government intends to defeat the insurgency.32 There are five core LLOs: (1) combat and civil security operations, (2) host nation (HN) security forces, (3) essential services, (4) governance, and (5) economic development.33

Overarching these five core LLOs is a sixth LLO entitled ‘information operations’.34

The combat operations LLO recommends that the military undertake offensive, defensive and stability operations.35 In contrast to conventional warfare, there is a greater emphasis on battalion-sized and smaller unit offensives – such as ambushes, cordon-and-search operations, and targeted raids – as opposed to large- scale assaults requiring air and artillery support.36 These small-unit operations should be designed to kill or capture insurgent combatants or expel them from a given area.37

Once an area has been ‘cleared’ of insurgents in this way, the military should ‘hold’

that area by implementing a range of security and population control measures,

including curfews, checkpoints and restrictions on travel.38 In these respects, FM 3-24

32 FM 3-24, above n 2, [5-7].

33 See ibid 155-156 (Figure 5-1, Figure 5-2).

34 See ibid 156 (Figure 5-2), [5-19]-[5-34], [5-76]-[5-78].

35 Ibid [5-36]. See also [5-38]: ‘Measured combat operations are always required to address insurgents who cannot be co-opted into operating inside the rule of law. These operations may sometimes require overwhelming force and the killing of fanatic insurgents’

36 Ibid [5-39], [5-56].

37 Ibid [5-56]-[5-57].

38 Ibid [5-71]-[5-74]. For an explanation of the ‘clear’ and ‘hold’ stages of ‘clear-hold-build’ operation, see ibid [5-51]-[5-67].

341 draws directly on Thompson and Galula.39 Ideally, cleared areas should be held by the local police, which should be trained under the ‘host nation security forces’ LLO.40

During the third stage of counter-insurgency operations, the military should

‘build’ infrastructure by following the remaining core LLOs. This involves a range of

soft power measures which are designed to win the support of the population

surrounding the insurgents. As FM 3-24 explains, ‘[c]ounterinsurgents should use every opportunity to help the populace meet its needs and expectations’.41 It

recommends a range of tasks that ‘provide an overt and direct benefit for the

community.42 Under the essential services LLO, these include sewage treatment, trash collection, potable water, electrical power, transportation, schools and hospitals.43

Under the governance LLO, considered further below, the military should establish

and uphold the rule of law, encourage local elections, and develop an effective system

of public administration.44 Under the economic development LLO, the government

39 See Thompson, above n 5, 111-113 (‘clear-hold-winning’); Galula, above n 5, 82-83 (population control).

40 FM 3-24, above n 2, [5-60]. See generally [5-40]-[5-41], [6-90]-[6-107].

41 Ibid [5-75].

42 Ibid [5-70]. For examples of relevant projects, see ibid [5-70]. These include collecting and clearing trash; removing or painting over insurgent symbols or colours; building and improving roads; digging wells; preparing and building an indigenous security force; securing, moving and distributing supplies; and building and improving schools and similar facilities.

43 See ibid 156 (Figure 5-2), 170 (Figure 5-4). The British Army Field Manual describes these kinds of projects as ‘consent winning activity’: British Army Field Manual, above n 4, [4-47].

44 See FM 3-24, above n 2, [5-44].

342 should mobilise local manufacturing and agriculture, initiate contracts with local

businesses, rebuild commercial infrastructure and support a free market economy.45

Under the information operations LLO, the military performs another important soft power task which aids the reconstruction program. The purpose of

Information Operations (IO) is to inform the population of the civil reconstruction projects that the military has undertaken, including measures to establish the rule of law, improve governance and provide essential services.46 In short, IO should ‘[t]ell

the people what forces are doing and why they are doing it’.47 This helps to neutralise insurgent propaganda, increase popular support of the government, and address the

‘root causes that insurgents use to gain support’.48 Government successes in civil

reconstruction should be publicised through a variety of media including radio,

television, newspapers, and the Internet.49 In this respect, IO are the equivalent of the

psychological warfare campaign described by the classical theorists,50 although FM 3-

24 focuses to a greater extent on providing facts and information to the population

rather than convincing insurgents to surrender.51 Like Galula, FM 3-24 stresses that

45 See ibid [5-46]-[5-49].

46 Ibid [5-21].

47 Ibid [5-77].

48 Ibid [5-19]-[5-20].

49 Ibid [5-23].

50 See Thompson, above n 5, 90.

51 FM 3-24, above n 2, [5-21], [5-77]; cf Thompson, above n 5, 90. In contrast to FM 3-24, the British

Army Field Manual focuses to a greater extent on deceiving the population and even using force for its psychological impact: see British Army Field Manual, above n 4, [6-5]

343 IO should be based on ‘policy, facts, and deeds’ because ‘making unsubstantiated

claims can undermine the long-term credibility and legitimacy of the government’.52

As in classical counter-insurgency strategy, these soft power responses are

designed to work in a smart power strategy with the combat operations described

above. FM 3-24 likens its five core LLOs to the strands of a rope: one strand alone

cannot accomplish its task, but a ‘strong rope is created’ when these strands are

‘woven together’.53 This is also reflected in the idea of executing counter-insurgency

operations according to three phases (‘clear-hold-build’),54 which is taken directly from Thompson.55 In the same way that Thompson described counter-insurgency operations as requiring an ‘adroit and judicious mixture of ruthlessness and sympathy’,56 FM 3-24 explains that ‘[k]indness and compassion can often be as

important as killing and capturing insurgents’.57

C Law

Less obviously, a smart power approach can also be seen in the dual role that law

plays in contemporary counter-insurgency. As in classical counter-insurgency,58 FM

3-24 suggests that law should perform a hard power, coercive function as well as a

soft power function which is designed to win the support of the surrounding

52 FM 3-24, above n 2, [5-22].

53 Ibid [5-13].

54 See ibid [5-51]-[5-80].

55 Thompson, above n 5, 111-113.

56 Ibid 146.

57 FM 3-24, above n 2, [5-38].

58 See Chapter Four, Parts I(B), I(C).

344 population. The coercive role of law can be seen in the range of population control

measures described above, including curfews, checkpoints and restrictions on travel.59

It can also be seen in the role played by the host nation (HN) police forces: these

should be trained to perform a range of law enforcement tasks including criminal

policing, traffic policing, border policing, transport policing, and paramilitary

policing.60 More broadly, FM 3-24 recommends that the military work with the

Departments of Justice and State to establish a judicial and law enforcement system that includes courts and prisons for prosecuting and detaining suspected felons.61

In addition to this hard power approach, FM 3-24 recommends that the law be used to win the support of the population. In order to improve the government’s legitimacy in the eyes of the population, the government should provide the population with ‘security under the rule of law’ while upholding ‘the full panoply of human rights’.62 This includes complying with the requirements of international humanitarian law, particularly those laws which protect against the torture of captured insurgents.63 In practice, it appears that US reconstruction efforts have focused more

heavily on economic freedoms than on protecting the ‘full panoply’ of human rights.64

59 FM 3-24, above n 2, [5-73].

60 Ibid [6-92], [6-99].

61 Ibid [6-105]-[6-106].

62 Ibid [1-131], [D-38].

63 Ibid [7-39]-[7-44]. See also [D-7]-[D-26] (rules of engagement, the law of war and disciplining officers).

64 For example, Van Buren details a range of projects that were designed to improve the entrepreneurial skill of Iraqi communities: see Peter Van Buren, We Meant Well: How I Helped Lose the Battle for the

Hearts and Minds of the Iraqi People (Metropolitan, 2011) 135-148. More broadly, US reconstruction efforts focused largely on developing the infrastructure and security necessary for economic growth:

345 In this respect, the difference between classical and contemporary approaches to counter-insurgency operations should not be overstated, although there has certainly been a significant shift in rhetoric as to the importance of human rights standards.

In addition, the governance LLO recommends that the government encourage local elections and create an effective administrative structure for implementing the civil reconstruction program.65 This mimics the approach of the classical theorists,66 although the colonial idea of a ‘war committee’ structure has been replaced with a focus on developing local, regional and national agencies, and re-establishing the justice system.67 FM 3-24 also recommends that the government establish a system of administrative law in which citizens can ‘pursue redress for perceived wrongs’.68

see Special Inspector General for Iraq Reconstruction (SIGIR), Learning From Iraq: A Final Report from the Special Inspector General for Iraq Reconstruction (SIGIR, March 2013) 75-120 (‘SIGIR

Final Report’). See Toby Dodge, ‘The Ideological Roots of Failure: The Application of Kinetic Neo-

Liberalism to Iraq’ (2010) 86(6) International Affairs 1269, 1270. This is also consistent with a major critique of counter-insurgency, being that the purpose of counter-insurgency operations is to shape foreign cultures in accordance with the strategic and economic interests of the West: see Chapter Four,

Part IV, and discussion below in Part IV(C).

65 FM 3-24, above n 2, [5-44]. This includes the rule of law, public administration, a judiciary system, public financing, and electoral processes.

66 See Chapter Four, Part I(C).

67 FM 3-24, above n 2, 156 [Figure 5-2], [5-44], [6-106]. Cf Thompson, above n 5, 70-72.

68 FM 3-24, above n 2, 172 (Table 5-5).

346 D Intelligence

Like the classical theorists, FM 3-24 places immense importance on the value of

intelligence. It recommends a similar approach to the classical theorists,69 although the techniques of intelligence collection are updated in line with modern technology.

FM 3-24 lists various types of intelligence that should be collected, including intelligence from: human agents and sources (human intelligence or ‘HUMINT’); satellite imagery (geospatial intelligence or ‘GEOINT); intercepted communications

(signals intelligence or ‘SIGINT’); open sources such as newspapers and insurgent publications (open source intelligence or ‘OSINT’); and the captured property and financial records of insurgents (document exploitation or ‘DOCEX’).70 In addition,

the military should undertake counter-intelligence operations to prevent intelligence

gathering by the insurgents, such as by conducting background and biometric

screenings of all government staff.71 These types of intelligence collection may not be

classified directly as hard power, in the sense that they may involve surveillance from

a distance without compelling individuals to act in any particular way, but they may

be classified under the same heading because they are designed directly to help the

military capture and kill insurgent combatants.

In contemporary operations, these more traditional types of intelligence

gathering are supplemented with a contrasting approach which was not described in

the work of the classical theorists. This second type of intelligence gathering can be

described as a soft power response because it is designed to help the government

69 See Chapter Four, Part I(B).

70 See FM 3-24, above n 2, [3-130]-[3-154].

71 Ibid [3-155]-[3-159].

347 understand and address the legitimate grievances driving the insurgency.72 Indeed, it is not what most would ordinarily describe as intelligence gathering, but rather an anthropological inquiry into the host nation. In contemporary counter-insurgency, this is known as understanding the ‘human terrain’.73 As the manual explains:

Intelligence in COIN is about people. U.S. forces must understand the people of the

host nation, the insurgents, and the host-nation (HN) government. Commanders and

planners require insight into cultures, perceptions, values, beliefs, interests and

decision-making processes of individuals and groups. These requirements are the

basis for collection and analytical efforts.74

The manual lists a range of subjects on which military forces should collect human

terrain intelligence, including ethnic groups, races, tribes, networks, alliances,

institutions, organisations, social norms, cultures, identities, beliefs, attitudes,

perceptions, languages, political participation, and social and economic grievances.75

Once the military has ‘thoroughly mapped out’ the host nation’s structure in this way,

it should ‘identify and analyse the culture of a society as a whole and of each major

72 Ibid [3-1], [3-184].

73 The phrase ‘human terrain’ is not used in FM 3-24, but it is used by the US military in the context of

‘Human Terrain Teams’, which are discussed below in Part IIC. ‘Human Terrain’ is defined in the

British Army Field Manual as ‘a broad and complex subject which brings together sociology, political science, geography, regional studies, linguistics and intelligence. Its scope ranges from understanding individuals, particularly key leaders, through groups to societies and trans-national influences’: British

Army Field Manual, above n 4, [3-12]. For ease of reference will refer to as ‘human terrain intelligence’.

74 FM 3-24, above n 2, [3-2].

75 See ibid [3-19]-[3-73].

348 group within the society’.76 In other words, in addition to traditional forms of intelligence gathering, the military should seek to understand the culture and society in which the insurgency takes place. This second task is performed by dedicated

‘Human Terrain Teams’, the details and problems of which are considered below.77

Similar to the role of law, then, intelligence gathering in counter-insurgency follows a smart power logic which combines hard and soft power functions. In addition to a hard power approach which helps to capture and kill insurgents, a second type of intelligence gathering is conducted which helps the government to understand and address the underlying causes of the insurgency. As FM 3-24 explains, ‘truly grasping the operational environment requires commanders and staff to devote at least as much effort to understanding the people they support as they do to understanding the enemy’.78 The next section considers how these smart power approaches were implemented by the US military during the Surge in Iraq, and then the following sections will test the Surge against the core components of smart power thinking.

II THE SURGE IN IRAQ

This section provides an overview of the Surge and how it is said to reflect the counter-insurgency principles outlined above. During the Surge, the US military applied a smart power approach to counter a violent insurgency which had resulted from the initial invasion of Iraq in 2003. After explaining these events, this section explains the functions of two joint civilian-military units: Provincial Reconstruction

76 Ibid [3-36].

77 See Parts II(C), IV(B), IV(C).

78 FM 3-24, above n 2, [3-184].

349 Teams (PRTs) and Human Terrain Teams (HTTs). These units were both key

mechanisms that the US military relied upon to implement a soft power strategy in

Iraq. The section concludes by explaining orthodox accounts of how the Surge helped to reduce violence in Iraq and allowed the US to withdraw its combat forces.

A ‘A New Way Forward’

In March 2003, the US military launched Operation Iraqi Freedom, a conventional warfare offensive that led to the fall of Baghdad in a mere 20 days. The story of this initial invasion is well known: the Bush administration acted without approval from the United Nations Security Council, the US military did not find any Weapons of

Mass Destruction (WMD) nor any evidence of a link between Saddam Hussein’s regime and al-Qaeda, and the decision to invade was evidently guided, at least in part, by the economic advantages that long-term access to the Iraqi oil fields would provide. The Iraqi Information Minister, who was affectionately dubbed ‘Baghdad

Bob’, comically refused to accept defeat and maintained that the Americans would be the ‘ones who will find themselves under siege’.79 However, it quickly became clear

that the Iraqi army stood little chance against the immense firepower of the world’s

largest military. After unleashing an overwhelming barrage of cruise missiles and

bunker-busting bombs, the US military swept through Baghdad with little resistance

and toppled the statute of Saddam Hussein which stood in Firdos Square. On 1 May,

79 Emily Deprang, ‘“Baghdad Bob” and his ridiculous, true predictions’, The Atlantic (Washington), 21

March 2013.

350 standing proudly atop the USS Abraham Lincoln in front of a ‘mission accomplished’

banner, President Bush declared that ‘major combat operations in Iraq have ended’.80

As it turned out, Baghdad Bob understood the war far better than President

Bush.81 Once the dust settled from the initial invasion, US and Coalition forces faced a violent and growing insurgency in Iraq, particularly in the Sunni Triangle encompassing Baghdad, Fallujah and Tikrit. The insurgency was designed primarily to force US troops to withdraw from Iraq, as well as to reclaim some of the power that the Sunnis had lost to the Shi’a during the invasion.82 There was also a more radical element led by Abu Musab al-Zarqawi, which aimed to fuel sectarian tensions between Sunni and Shi’a and form its own Islamic state from which al-Qaeda could

operate throughout the Middle East.83 The Bush administration contributed further to the insurgency by withdrawing its troops from dangerous urban areas, by disbanding the Iraqi army and security services, and by purging the Iraqi civil service through the policy of de-Ba’athification.84 The Abu Ghraib scandal in particular created

80 The White House, ‘President Bush Announces Major Combat Operations in Iraq Have Ended’, 1

May 2003 .

See Jon Ward, ‘Bush regrets “mission accomplished” banner’, Washington Times, 11 November 2008;

Alexander Mooney, ‘Bush: “I regret saying some things I shouldn’t have said’, CNN (online), 11

November 2008 .

81 See Deprang, above n 79.

82 Carter Malkasian, ‘Counterinsurgency in Iraq: May 2003-January 2010’ in Daniel Marston and

Carter Malkasian, Counterinsurgency in Modern Warfare (Osprey, 2008) 287, 287.

83 Ibid 288. For this reason, Kilcullen explains that the insurgency was not only an insurgency, but rather a combination of a civil war, terrorism and insurgency: Kilcullen, The Accidental Guerrilla, above n 28, 148-151.

84 See Malkasian, above n 82, 287-294; Michael Eisenstadt and Jeffrey White, ‘Assessing Iraq’s Sunni

Arab Insurgency’ (2006) (May/June) Military Review 33; Toby Dodge, ‘What Were the Causes and

351 significant and justifiable resentment amongst the Iraqi population.85 What followed as a result of these causes was not a conventional battle between two military forces – something the US military was well equipped to deal with – but rather an uprising of irregular armed troops who relied on suicide bombings, rocket-propelled grenade

(RPG) attacks and roadside bombings with improvised explosive devices (IEDs).

The US military initially responded to these insurgent attacks with ‘heavy- handed tactics’, including large-scale search-and-sweeps, loose artillery fire, air strikes, the detention of innocent civilians to blackmail insurgents, and the destruction of homes.86 In late April 2003, US troops killed 13 and wounded 91 civilians in

Fallujah, which became a hotbed of insurgent activity and the site of two large-scale battles.87 By mid-2004, US forces were facing over 500 insurgent attacks per week.88

Consequences of Iraq’s Descent into Violence After the Initial Invasion?’, Submission to the Iraq

Inquiry (UK) .

85 See, eg, George R Mastroianni, ‘Looking Back: Understanding Abu Ghraib’ (2013) 43(2)

Parameters 53. See generally Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The

Road to Abu Ghraib (Cambridge University Press, 2005); Seymour M Hersh, Chain of Command: The

Road from 9/11 to Abu Ghraib (Harper Perennial, 2005); Steven Strasser, The Abu Ghraib

Investigations: The Official Reports of the Independent Panel and Pentagon on the Shocking Prisoner

Abuse in Iraq (Public Affairs, 2004); Michael Otterman, American Torture: From the Cold War to Abu

Ghraib and Beyond (Melbourne University Press, 2007).

86 Malkasian, above n 82, 289.

87 See ibid 290-296. See also Daniel Green, ‘The Fallujah Awakening: A Case Study in Counter-

Insurgency’ (2010) 21(4) Small Wars & Insurgencies 591.

88 Malkasian, above n 82, 292.

352 On 22 February 2006, Sunni insurgents affiliated with al-Qaeda bombed the

al-Askari mosque in Samarra, one of the most important Shi'a sites in the world.89

This sparked a new level of conflict, with the daily death toll in Baghdad tripling and

a further 365 000 Iraqis made homeless.90 By mid-2006, Iraq was moving towards full-blown civil war and the US military was suffering its heaviest losses of the conflict.91 In a cruel irony, the hard power approach which proved so effective in the

initial weeks of the invasion did little to curb the insurgency and indeed only created

further resentment amongst the Iraqi population.92 The US military could take control

of a foreign country and its military forces in a matter of weeks, but it could not

defeat a relatively small band of resistance fighters wielding RPGs and AK-47s.

On 10 January 2007, President Bush announced a ‘New Way Forward’ for the

US military which would help to counter the insurgency.93 Bush explained that he would deploy more than 20,000 additional troops into Iraq, mostly into Baghdad and is surrounds.94 In total, closer to 30 000 additional troops were deployed, including

five Brigade Combat Teams, one Army aviation brigade, one Marine Expeditionary

Unit, two Marine infantry battalions, an additional Division headquarters and extra

89 See ibid 301; Thomas E Ricks, The Gamble: General Petraeus and the Untold Story of Iraq, 2006-

2008 (Allen Lane, 2009) 32; David H Ucko, The New Counterinsurgency Era: Transforming the US

Military for Modern Wars (Georgetown University Press, 2009) 104.

90 See Ucko, above n 89, 104; Ricks, above n 89, 33; SIGIR Final Report, above n 64, 43.

91 Ricks, above n 89, 34-37, 45, 55, 57.

92 Malkasian, above n 82, 289.

93 George Bush, ‘President’s Address to the Nation’, 10 January 2007 .

94 Ibid.

353 support troops.95 This rapid deployment came to be known as ‘The Surge’, and it raised the level of US combat forces in Iraq at its peak to around 170 000 troops.96

To lead the Surge, General David Petraeus was appointed as Commander of the Multi-National Force in Iraq (MNF-I), replacing General George Casey. Petraeus was an expert on counter-insurgency who had led the 101st airborne division in

Ninewa province in the north of Iraq, where he had already begun applying counter- insurgency principles.97 In preparation for the Surge, Petraeus and a team of counter-

insurgency experts convened at the US military base in Fort Leavenworth, Kansas, to

write the new counter-insurgency manual (FM 3-24) which was published in 2007.98

The rationale underlying the Surge was not simply to boost troop numbers but

to implement the counter-insurgency approach that Petraeus had outlined in FM 3-24.

David Kilcullen, a former Australian army officer and senior counter-insurgency

advisor to Petraeus, has described this as a ‘very different approach’ to the initial

invasion.99 Instead of directly targeting insurgents with combat operations (an

‘enemy-centric approach’), this ‘population-centric’ approach was designed to protect

and build relationships with Iraqi communities.100 In the words of one adviser to

95 Catherine Dale, Operation Iraqi Freedom: Strategies, Approaches, Results, and Issues for Congress

(Congressional Research Service Report for Congress, 28 March 2008) 53.

96 SIGIR Final Report, above n 64, 43; Dale, above n 95, 53.

97 See Malkasian, above n 82, 289.

98 FM 3-24, above n 2. On plagiarism in FM 3-24 and the lack of a proper peer review process by the

University of Chicago Press, see Roberto J Gonzalez, American Counterinsurgency: Human Science and the Human Terrain (Prickly Paradigm Press, 2009) 10-12.

99 Kilcullen, The Accidental Guerrilla, above n 28, 129. See also Ricks, above n 89, 158, 178.

100 Kilcullen, The Accidental Guerrilla, above n 28, 128-129.

354 Petraeus, this was not ‘whacking and stacking them’.101 It was more like walking and talking with them. Ricks describes this softer, ‘human’ side of counter-insurgency:

The entire approach was distinctly alien to the rapid, decisive, mechanistic, and

sometimes Manichean mind-set that had been taught to a generation or two of

American commanders. It had nothing to do with technology and everything to do

with dealing with some of the oldest of human traits – eye-to-eye contact and heeding

the values and ways of tribes and their leaders. What was going on in Iraq in 2007, as

Kilcullen put it, was ‘a counterrevolution in military affairs, led to a certain extent by

David Petraeus’.102

As part of this new approach, brigades were moved off large bases and into smaller

outposts where they could patrol their own local ‘beat’ with Iraqi police units.103

Soldiers were instructed to ‘Get out of your Humvees, get out of your tanks, your

Brads [Bradley Fighting Vehicles], and walk around’.104 The military conducted a thorough census of Iraqi households (dubbed ‘Operation Close Encounters’) in which

soldiers interviewed community members about their grievances.105 Interviewing

soldiers were ordered to sit down, take off their helmets and sunglasses, politely

accept any food and drinks offered, and ‘speak respectfully’ with their hosts.106

101 Ricks, above n 89, 157 (quoting Major General Fastabend).

102 Ibid 163.

103 Ibid 129-130; Lieutenant-Colonel Jim Crider and Thomas Ricks, Inside the Surge: One

Commander’s Lessons in Counterinsurgency (Center for a New American Security, June 2009) 11.

104 Ricks, above n 89, 166 (quoting Army Major Joseph Halloran).

105 Crider and Ricks, above n 103, 11; Ricks, above n 89, 168.

106 Ricks, above n 89, 168.

355 According to the principles set out in FM 3-24,107 these efforts to build relationships with Iraqi communities were designed to create a positive image of the

US military and win the support of the Iraqi civilian population. The importance of image to these counter-insurgency efforts can be seen in a number of photographic depictions of the Surge, in which soldiers (including Petraeus, Kilcullen, and others) are pictured without their combat helmets, playing football with Iraqi children, and talking and shaking hands with members of Iraqi communities.108 As such, it is clear that these counter-insurgency efforts in Iraq were designed to increase US soft power.

This is not to suggest that the US military relied only on soft power once the

Surge began. The US military may have reduced its reliance on hard power compared to the initial invasion in 2003, but it continued to launch major combat operations against insurgent and al-Qaeda bases throughout Iraq – including Operations Iron

Hammer, Marne Torch, Marne Avalanche, Phantom Thunder, Phantom Strike and

Phantom Phoenix.109 Rather, the Surge signalled a significant shift in emphasis

towards soft power as the key to success in countering the Iraqi insurgency. In other

words, the Surge signalled the development of a smart power approach which

combined hard and soft power. In particular, as part of the soft power aspects of the

107 See especially, FM 3-24, above n 2, xxv.

108 See Justine Pak, ‘Photo Essay: Militarism and Humanitarianism’ (2012) 3(2) Humanity 217.

109 See Dale, above n 95, 57; Institute for the Study of War, ‘Operation Phantom Thunder’ (2014)

; John Garamone, ‘Odierno describes Operation Phantom Thunder’, 22 June 2007

; Institute for the Study of War,

‘Operation Phantom Strike’ (2014) ; Institute for the Study of War, ‘Operation Phantom Phoenix (2014)

356 Surge, the Bush administration invested significant funds into two joint civilian-

military units: Provincial Reconstruction Teams and Human Terrain Teams.

B Provincial Reconstruction Teams

Provincial Reconstruction Teams (PRTs) are civilian-military units that aim to build infrastructure, provide essential services, improve governance and develop the rule of law. PRTs were first used in Afghanistan from 2002,110 although in that context their purpose was primarily to provide security for reconstruction efforts and to extend government control throughout the provinces.111 Since then, and in Iraq in particular,

PRTs took on an additional role in governance and community development.112 The main function of PRTs is ‘to help improve stability … by increasing the host nation’s capacity to govern; enhancing economic viability; and strengthening local governments’ ability to deliver public services, such as security and health care’.113

There are two main types of PRT: ‘paired’ and ‘embedded’.114 Paired PRTs are large stand-alone entities that comprise military and civilian personnel. Embedded

PRTs (or ‘ePRTs’) are smaller civilian units that accompany a Brigade Combat Team

110 Russel L Honore and David V Bosleto, ‘Forging Provincial Reconstruction Teams’ (2007) 44 Joint

Force Quarterly 85, 85; United States Government Accountability Office (GAO), Provincial

Reconstruction Teams in Afghanistan and Iraq (GAO-09-86R, October 2008) 1.

111 GAO, above n 110, 1.

112 Ibid 1.

113 Ibid 1.

114 Jesse P Pruett, ‘The Interagency Future: Embedded Provincial Reconstruction Teams in Task Force

Marne’ (2009) 89(5) Military Review 54, 55.

357 (BCT).115 There are also Provincial Support Teams (PST), which are small PRTs that do not function within their assigned provinces due to security reasons,116 although these are less common. The number of staff in a PRT differs, but in Iraq, each PRT had between 10 and 45 personnel, each ePRT had between 10 and 20 personnel, and each PST had between 4 and 10 personnel.117 In addition to a core team of military

personnel, each PRT included civilian experts from the State Department, the US

Agency for International Development (USAID), the Department of Agricultural

(USDA) and the Department of Justice.118 Each PRT also employed a ‘bilingual- bicultural advisor’, an Iraqi expatriate who was contracted by the Department of

Defence (DOD) to act as a bridge between the PRTs and Iraqi officials and to advise the PRT staff on cultural issues.119

PRTs were first used in Iraq from 2005, but at that stage they were smaller, provincially based offices led by representatives from the State Department.120 By the

end of 2006, Iraq had a total of ten PRTs based on this model.121 During the Surge,

the PRT program in Iraq expanded rapidly.122 By August 2008, at the conclusion of

115 Dale, above n 95, 98; Pruett, above n 114, 56.

116 See GAO, above n 110, 2, 5.

117 Ibid 12. In Afghanistan, PRTs are larger with around 100 staff, and they are primarily the responsibility of the military (in contrast to Iraq, where they are primarily the responsibility of the US

Department of State): ibid 7.

118 Ibid 12; Dale, above n 95, 98.

119 Pruett, above n 114, 56; GAO, above n 110, 12.

120 Dale, above n 95, 96; GAO, above n 110, 1, 4-5.

121 GAO, above n 110, 4-5.

122 This was facilitated in part through a Memorandum of Agreement, signed on 22 February 2007, which established the PRT program in Iraq as a joint mission of the Departments of State and Defence

358 the Surge, there were 31 PRTs in Iraq totalling around 800 personnel.123 Of these, three were led by Coalition countries in Irbil (South Korea), Dhi Qar (Italy) and Basra

(UK).124 The 31 PRTs ‘covered’ the whole of Iraq but did so unevenly.125

The aim of the PRTs during the Surge was to undertake the civilian reconstruction program set out in FM 3-24. This was not the first time that the US military had undertaken reconstruction projects in Iraq; significant funds had been invested in reconstruction in the immediate aftermath of the invasion and under the

Coalition Provisional Authority.126 However, these early reconstruction efforts were designed primarily to fix what the military had broken, whereas the new PRT program aimed to give the population additional benefits such as improved infrastructure and essential services. As such, the Special Inspector General for Iraq

Reconstruction (SIGIR) described the expansion of the PRT program during the

Surge as a ‘landmark event in the reconstruction effort’.127 In total, the PRT program

during the Surge expended about $5 billion in US funds for reconstruction projects.128

This included projects for electricity, gas, water, transport, communications, civil

and applied this retrospectively to the existing PRTs: Dale, above n 95, 97. In May 2007, the US

Embassy in Baghdad established an Office of Provincial Affairs (OPA) to oversee the PRT program:

GAO, above n 110, 5, 12.

123 Comprising 14 PRTs, 13 ePRTs and 4 PSTs: ibid 2, 5; Dale, above n 95, 97.

124 GAO, above n 110, 5; Dale, above n 95, 97

125 Dale, above n 95, 97.

126 See SIGIR Final Report, above n 64, 39-41.

127 Special Inspector General for Iraq Reconstruction (SIGIR), Hard Lessons: The Iraq Reconstruction

Experience (SIGIR, February 2009) 300 (‘Hard Lessons’).

128 Ibid 299. The Iraq government provided $19 billion, or approximately 4 times the funds invested by the US government: SIGIR Final Report, above n 64, 44.

359 aviation, public health, education, agriculture and humanitarian relief.129 It also

included approximately $1.2 billion for ‘rule of law programs’.130 This was largely expended in efforts to improve Iraq’s court and prison systems, but also included anti- corruption programs and other measures to strengthen democratic and civil society.131

C Human Terrain Teams

Human Terrain Teams (HTTs) are civilian-military units which rely on academic expertise to collect social, cultural and political information (human terrain intelligence) about the insurgency and the surrounding population. Each HTT is embedded within a BCT or Regimental Combat Team (RCT). The overarching program for the HTTs – known as the Human Terrain System or ‘HTS’ – was developed between July 2005 and August 2006.132 The first HTT was deployed to

Khost in eastern Afghanistan in February 2007, to support the 82nd airborne division,

and then five HTTs were deployed to Iraq in mid-2007.133 These six HTTs were a

129 See SIGIR Final Report, above n 64, 90, 110-113, 115, 117-119.

130 Ibid 100.

131 Ibid 100-101.

132 Gonzalez, above n 98, 2. The predecessor to the HTS was the Cultural Preparation of the

Environment (CPE) program, which was field-tested in 2005: Montgomery McFate and Steve

Fondacaro, ‘Reflections on the Human Terrain System During the First 4 Years’ (2011) 2(4) PRISM

63, 66.

133 Gonzalez, above n 98, 49; Christopher J Lamb et al, ‘The Way Ahead for Human Terrain Teams’

(2013) 70(3) Joint Force Quarterly 21, 23; McFate and Fondacaro, above n 133, 69.

360 proof of concept trial and the HTS was subsequently expanded. By late 2009, there

were six HTTs operating in Afghanistan and 18 HTTs operating in Iraq.134

The purpose behind these HTTs was to provide soldiers with ‘operationally

relevant socio-cultural information so decisions and actions would be better informed,

more compassionate, and less kinetic’.135 In other words, the HTTs were designed to address the lack of cultural understanding which led to the use of excessive force and other tactical errors in the early stages of the Iraq and Afghanistan conflicts.136 In this

respect, the HTS resembles the Civil Operations and Revolutionary Development

Support (CORDS) program, which was developed during the Vietnam War to address

the ‘paucity of cultural skills’ in the US military, particularly language skills.137 Like the HTS, CORDS was based on a soft power logic that the ‘war would be ultimately won or lost not on the battlefield, but in the struggle for the loyalty of the people’.138

HTTs are small units comprising a core team of five members:

• HTT leader (major or lieutenant colonel)

• Cultural analyst (civilian with an MA or PhD in cultural anthropology or

sociology)

• Regional studies analyst (civilian with an MA or PhD in area studies, with

language fluency)

134 Christian Caryl, ‘Human Terrain Teams’, Foreign Policy (online) 8 September 2009

135 McFate and Fondacaro, above n 132, 79.

136 Jacob Kipp et al, ‘The Human Terrain System: A CORDS for the 21st Century’ (2006) 86(5)

Military Review 8, 11.

137 Ibid 10; Gonzalez, above n 98, 4-7.

138 Kipp et al, above n 136, 10.

361 • HT research manager (military background in tactical intelligence)

• HT analyst (military background in tactical intelligence)139

Aside from the team leader, each of the other roles can be duplicated, giving a

maximum 9-member team.140 In addition, each HTT coordinates with the Reachback

Research Centre (RRC) at Fort Leavenworth.141 The RCC is a central facility which supports the HTTs in the field by conducting additional research and analysis.142

The main task of the HTTs is to support the combat teams in which they are

embedded by conducting anthropological and sociological research on the host nation.

This research is conducted through a variety of academic methods and sources,

including participant observation, interviews, polling, and secondary source analysis

of academic and government publications.143 As described in Part I, the information collected by the HTTs relates to a range of topics, including tribal structures and languages, cultural norms and attitudes, political participation, and social and economic grievances.144 The HTTs input this research into a software program called

‘Mapping Human Terrain’ (MAP-HT), which allows them to store and present their

139 Gonzalez, above n 98, 49; Human Terrain System, Human Terrain Team Handbook (Human

Terrain System, September 2008) (‘HTS Handbook’).

140 See HTS Handbook, above n 139, 11; Lieutenant Colonel Jonathan D Thompson, ‘Human Terrain

Team Operations in East Baghdad’ (2010) 90(4) Military Review 76, 78.

141 McFate and Fondacaro, above n 132, 63; HTS Handbook, above n 139, 28, 78.

142 See Human Terrain System, Reachback Research Center (2014) .

143 See HTS Handbook, above n 139, 5-10, 49, 55-77.

144 FM 3-24, above n 2, [3-19]-[3-73].

362 data and connect this to larger archives for wider use by the military.145 After this

human terrain intelligence has been collected and collated, the HTTs perform four

additional tasks: (1) making the research operationally relevant, (2) helping the

combat units to incorporate the research into operational decisions, (3) assessing the

impact of military operations on the host nation, and (5) providing support and

training to combat units on social and cultural issues in their area of operations.146

D A Qualified Success

The last of the Surge brigades left Iraq in July 2008,147 and those who had backed the new counter-insurgency approach believed that it had contributed to a significant reduction in violence. On 31 July 2008, President Bush announced that violence in

Iraq was ‘down to its lowest level since the spring of 2004’, and that a ‘significant reason for this sustained progress is the success of the surge’.148 General Petraeus had earlier claimed that ‘[w]e were seeing the facts validate the academic proposition’.149

This certainly appeared to be supported by the available statistics. A report by members of the Brookings Institution showed that security incidents in Iraq had dropped significantly in the 12 months between February 2007 and February 2008:

145 Kipp et al, above n 136, 13; HTS Handbook, above n 139, 49.

146 HTS Handbook, above n 139, 4-5, 24-25.

147 The White House, ‘President Bush Discusses Iraq’, 31 July 2008

whitehouse.archives.gov/news/releases/2008/07/20080731.html>; Ricks, above n 89, 294; SIGIR Final

Report, above n 64, 44.

148 Ibid.

149 Ricks, above n 89, 241.

363 • Iraqi civilian deaths: from 2 700 down to 700

• US troop deaths: from 81 down to 36

• Daily attacks by insurgents: from 210 down to 65

• Iraqi civilians newly displaced by violence: from 100 down to 30

• Multiple fatality bombings: from 56 down to 21150

Other commentators described the distinctly different atmosphere in the streets of

Baghdad compared to the violent civil war that raged in the middle of 2006:

As the surge ended in mid-2008, with the last of the five additional combat brigades

heading home, Baghdad felt distinctly better. Kebab stands and coffee shops had

reopened across the city, and many ordinary Iraqis felt safe enough to venture out of

their homes at night … There was no question that under Petraeus, the U.S. military

had regained the strategic initiative, an extraordinary achievement.151

Kilcullen likewise claimed that the achievements of the Surge were ‘substantive and significant’.152 He argues that the counter-insurgency reforms saved tens of thousands of Iraqi lives and ‘pulled their society back from the brink of total collapse’.153

According to these positive accounts, the Surge gave Iraqi President Nouri al-

Maliki enough ‘time and space’ to consolidate his power in the National Assembly,

150 Jason H Campbell and Michael E O’Hanlon, ‘The State of Iraq: An Update’, New York Times, 9

March 2008. See also SIGIR Final Report, above n 64, 44.

151 Ricks, above n 89, 294.

152 Kilcullen, The Accidental Guerrilla, above n 28, 116.

153 Ibid 116-117.

364 which depended on an uneasy coalition of Sunni, Shi’a and Kurdish parties.154 In the words of Emma Sky, ‘the improvement in the security situation convinced partisans on both sides that they could achieve their political goals only by joining the political process’.155 As a result, Presidents Bush and Maliki signed a Status of Forces

Agreement (SOFA) in December 2008 which provided that all US troops would withdraw from Iraq by the end of 2011.156 Bush and Maliki announced the agreement at a press conference which is likely remembered more for the famous shoe-throwing incident than for the progress it made in advancing the withdrawal of US troops.

Before he dodged the size 10, Bush explained that the US withdrawal was ‘possible because of the successes of the surge’.157 He shared his vision of ‘a strong and capable democratic Iraq that will be a force of freedom and a force for peace in the

154 See Emma Sky, ‘Iraq, From Surge to Sovereignty: Winding Down the War in Iraq’ (2011) 90

Foreign Affairs 117, 119-120. See also David Hastings Dunn and Andrew Futter, ‘Short-Term Tactical

Gains and Long-Term Strategic Problems: The Paradox of the US Troop Surge in Iraq’ (2010) 10(1/2)

Defence Studies 195, 196.

155 Ibid 120.

156 The White House, ‘President Bush and Iraq Prime Minister Maliki Sign the Strategic Framework

Agreement and Security Agreement’, 14 December 2008 . The agreement also included a

Strategic Framework Agreement which looked at other forms of cooperation between the United States and Iraq, such as economic and diplomatic relations. See Strategic Framework Agreement for a

Relationship of Friendship and Cooperation between the United States of America and the Republic of

Iraq (2008) .

157 The White House, ‘President Bush and Iraq Prime Minister Maliki Sign the Strategic Framework

Agreement and Security Agreement’, 14 December 2008 .

365 heart of the Middle East.’158 These plans for withdrawal were continued by President

Barack Obama and, on 18 December 2011, the final remaining US combat troops in

Iraq waited for the cover of darkness and then withdrew across the border into

Kuwait.159

Most advocates of the counter-insurgency approach during the Surge temper their support with an awareness of the overall strategic errors made during the war.

Kilcullen, for example, describes the initial invasion in 2003 as ‘deeply flawed’ and

‘an extremely severe strategic error’.160 Despite the successes of the Surge, therefore, the most it could achieve was to ‘rescue us from a disaster of our own making’.161

Similarly, Ricks maintains that the Surge was effective in reducing violence in Iraq, but he concludes that ‘the best grade it can be given is a solid incomplete’.162 He recognises that something akin to ‘victory’ in this context is likely unachievable, and that the chances of Iraq becoming a peaceful democracy in the foreseeable future are

158 Ibid.

159 At the time of writing, the Islamic State organisation (formerly the Islamic State of Iraq and Syria

US Embassy, although these troops will not, for the moment at least, be taking on a combat role: see

Chris Johnston, ‘Islamic State leader calls on all Muslims to aid “caliphate”’, The Guardian (London)

6 July 2014; Martin Chulov, ‘Iraq requests US air strikes as Isis insurgents tighten grip on oil refinery’,

The Guardian (London), 19 June 2014; Spencer Ackerman, ‘Obama sending additional troops to Iraq to safeguard US embassy’, The Guardian (London), 1 July 2014; Alissa J Rubin and Suadad Al-Salhy,

‘Iraqi Parliament wobbles over forming government’, The New York Times, 7 July 2014.

160 Kilcullen, The Accidental Guerrilla, above n 28, 117.

161 Ibid 118.

162 Ricks, above n 89, 296.

366 minimal.163 This is certainly borne out by recent events involving the Islamic State

(IS), an Islamist militant group and derivative of al-Qaeda in Iraq (AQI) which has taken control of several major cities in the country and in late June 2014 declared an

Islamic caliphate across the territory it controls in Iraq and Syria.164

Even so, the story of the Surge contributes significantly to the idea that combining hard and soft power is the key to countering political violence. More broadly, it contributes to the idea that smart power creates the conditions necessary for the development of a stable, peaceful and democratic society, even if this is more of an ideal than a potential reality. The next sections analyse the events of the Surge in more detail to determine whether the US military’s recent experiences in Iraq indeed provide a valid basis for smart power thinking in counter-insurgency.

III TESTING SMART POWER THINKING: ARE HARD POWER AND SOFT POWER DISTINCT?

The next three sections test US counter-insurgency efforts during the Surge against the three components of smart power thinking. First, the current section considers the extent to which hard and soft power responses to the insurgency were distinct.

Secondly, Part IV considers the extent to which soft power responses to the insurgency were morally preferable to hard power responses to the insurgency. Lastly,

Part V considers the extent to which hard and soft power responses to the insurgency were complementary. With regard to this third limb, Part V considers the extent to which hard and soft power were compatible, the extent to which combining hard and

163 Ibid 316.

164 See text to above n 159.

367 soft power was effective, and the extent to which it was possible for the US military to

rebalance its existing reliance on hard power to create a smart power strategy.165

The first component of smart power thinking is that hard and soft power describe two distinct methods for influencing behaviour. Nye recognises a number of complexities surrounding this distinction,166 but he nonetheless favours a ‘shorthand’ dichotomy.167 By contrast, and to reiterate a point made in previous chapters,168 the

events of the Surge suggest that these complexities are crucial to understanding how

Western governments counter political violence by combining hard and soft power.

Compared to Malaya, in which coercion, inducements and benefits were

combined within the mass detention camps known as ‘New Villages’,169 there was a

greater separation in Iraq between military operations directed at the insurgents and

al-Qaeda (such as Operation Phantom Thunder) and the reconstruction and

reconciliation efforts that took place throughout the provinces. Unlike the rural

Malayan population, the Iraqi civilian population did not become the direct target of a

coercive strategy which closely integrated civil reconstruction with collective fines

and other punishments.

However, evidence of a similar approach to the New Villages could be seen in

the so-called ‘Gated Communities’, in which ten of Baghdad’s most violent

165 See Chapter One, Part I(C).

166 Joseph S Nye Jr, Soft Power: The Means to Success in World Politics (Public Affairs, 2004) 7, 9,

116; Nye, The Future of Power, above n 1, 25.

167 Nye, Soft Power, above n 166, 8.

168 See Chapter Two, Part III; Chapter III, Part III; Chapter Four, Part III.

169 See Chapter Four, Parts I(B), I(C).

368 neighbourhoods were walled off from their surroundings.170 The primary purpose of

this was to protect the communities from insurgent attacks, and to do so the US

military erected 12-foot high concrete ‘T-Walls’ and established checkpoints and

other perimeter security measures.171 In Adhamiya, a Sunni neighbourhood north-

west of Baghdad’s city centre, the concrete wall surrounding the town was three miles

long.172 In some areas, US troops compiled a community census by recording the residents’ biometric data with fingerprint and eye scanners.173 This meant that the

military ‘knew who was supposed to be in any part of the city and who was not’.174

It is difficult to conceive of hard and soft power as two distinct approaches in

the gated communities because the coercive measures in place were simultaneously

designed to win the support of the population. The population controls were

undeniably coercive and subjected community members to intrusive surveillance

measures and significant restrictions on their freedom. And yet, As Kilcullen

explains, the purpose of the gated communities was also to ‘reduce the feeling of

intimidation and lift the pall of fear from communities so that people would become

170 See Dave Kilcullen, ‘The Urban Tourniquet: “Gated Communities” in Baghdad’, Small Wars

Journal Blog Post, 27 April 2007 ; Karin Brulliard, ‘“Gated communities” for the war-ravaged’, Washington

Post, 23 April 2007; Anthony H Cordesman, ‘Securing Baghdad with Gated Communities’ (Center for

Strategic and International Studies, 20 April 2007) .

171 See ibid. See also Kilcullen, The Accidental Guerrilla, above n 28, 142.

172 Liz Sly, ‘Outcry halts building of “Great Wall” in Baghdad’, Chicago Tribune, 24 April 2007.

173 See Brulliard, above n 170.

174 Kilcullen, ‘The Urban Tourniquet’, above n 170.

369 willing to give information to the government about the extremists’.175 In FM 3-24, this convergence of hard and soft power can be seen in statements such as ‘building support for the HN [host nation] government requires protecting the local populace’.176 In order to win the support of the population, the military subjects that

population to extreme population control measures; it is neither hard power nor soft

power, but both combined in the one coercive technique. The manual clarifies this to

some degree by distinguishing ‘positive coercion’ (such as protecting a community)

from ‘negative coercion’ (such as threats and intimidation).177 On the one hand, this is a useful distinction because there is certainly a moral difference between coercion which is intended to protect a population and coercion which is intentionally designed to kill, punish or strike terror in a population. On the other hand, the distinction fails to recognise that a community which is subjected to severe population control measures by a foreign military might also feel threatened and intimidated.

Another example in which hard and soft power were difficult to neatly separate during the Surge was in programs for de-radicalising insurgent detainees. In these programs (dubbed ‘COIN inside the wire’) hard-core radicalised inmates were first separated from the other prisoners, and then those capable of being rehabilitated were provided with a range of benefits including literacy and vocational programs:

As part of ‘COIN inside the wire,’ … the coalition cultivated the majority of the

detainee population by providing detainees with voluntary literacy programs, to the

grammar school level, for illiterate detainees. Vocational training programs, including

175 Kilcullen, The Accidental Guerrilla, above n 28, 143.

176 FM 3-24, above n 2, [5-68].

177 FM 3-24, above n 2, [3-58].

370 wood working, sewing and masonry, and opportunities to earn a small income during

detention were introduced. These included a brick factory at Camp Bucca where

detainees could earn money by making bricks, which were stamped with the

inscription, in Arabic, “rebuilding the nation brick by brick.” Imams visit the

facilities to provide detainees, on a voluntary basis, with religious education. A

family visitation program allowed about 1,600 visits per week. According to a senior

coalition official, ‘Now detainees themselves point out the trouble-makers.’178

This raises striking parallels with the development of counter-radicalisation programs

in UK and Australian prisons, as described in Chapters Two and Three.179 In both counter-terrorism and counter-insurgency, radicalised individuals are subjected to rehabilitation programs in which hard and soft power are closely integrated to the point where it is difficult to describe them as two distinct methods for influencing behaviour. The state is aiming to detain and incapacitate but also simultaneously to pacify and educate. The specific reasons for counter-radicalisation programs in Iraqi prisons are certainly different to those in the UK and Australia, but these recurring examples demonstrate that hard and soft power frequently converge in contemporary practice. They suggest that states are developing ‘hybrid’ responses to political violence which fuse hard and soft power, rather than distinct soft power responses.180

A third example of where hard and soft power converged during the Surge

was in the PRTs which operated throughout the Iraqi provinces. The very nature of

178 Catherine Dale, Operation Iraqi Freedom: Strategies, Approaches, Results, and Issues for Congress

(Congressional Research Report, 7-5700, April 2009) 125. See also Ricks, above n 89, 195; Dale, above n 95, 94-95.

179 See Chapter Two, Part III(A); Chapter Three, Part III.

180 See Chapter Two, Part III.

371 the PRT model is that it integrates military and civilian functions. But this is more

than two approaches working alongside each other for their mutual benefit, as the

military does not simply rid an area of insurgents and provide security for the civilian

experts; rather, soldiers participate directly in the reconstruction process. Likewise,

civilian representatives are not confined to their areas of expertise but also participate

in basic military tasks. The PRT training process is designed to ensure that ‘all

personnel can shoot, move, and communicate’.181 All personnel receive basic military

training at Fort Bragg, including instruction in small arms and marksmanship, urban

warfare tactics, detecting and withstanding IED attacks, and other ‘battlefield survival

skills’.182 As a unit, the PRT should not only advance the reconstruction program but also monitor the security situation, identify illegal activity, observe provincial officials, and provide information on the insurgency to higher command structures.183

For this reason, the Special Inspector General for Iraq Reconstruction (SIGIR) describes reconstruction efforts in counter-insurgency operations as distinct from reconstruction efforts in other contexts.184 In other contexts, reconstruction efforts might be described as a purer example of soft power, but in counter-insurgency, reconstruction efforts become an extension of hard power military functions:

181 Captain Michael Casiano, ‘The S-4 in a Provincial Reconstruction Team’ (2012) 44(2) Army

Sustainment 7, 8.

182 Honore and Bosleto, above n 110, 88. For a humorous account of a State Department Employee receiving his brief military training, see Van Buren, above n 64, 13-14.

183 See Major General Roger Lane and Emma Sky, ‘The Role of Provincial Reconstruction Teams in

Stabilisation’ (2006) 151(3) RUSI Journal 46, 48-49; Robert E Kemp, ‘Provincial Reconstruction

Teams in Eastern Afghanistan: Utility as a Strategic Counterinsurgency Tool’ (2011) 91(5) Military

Review 28, 30.

184 Hard Lessons, above n 127, 333.

372

War, politics, and reconstruction are linked in ways that individuals within the

government failed to appreciate in the opening years of the Iraq conflict. If war, as

Clausewitz said, is an extension of politics by other means, so too is relief and

reconstruction an extension of political, economic, and military strategy.185

This suggests once more that hard and soft power should be conceived not in terms of

a simple dichotomy but as linked and overlapping in complex and significant ways.186

Indeed, like the classical counter-insurgency theorists,187 it seems that Kilcullen is more aware of this fact than Nye. In describing counter-insurgency as ‘armed social work’,188 Kilcullen suggests that counter-insurgency operations do not simply require

a combination of hard and soft power, but rather a fusion of both approaches.

A final example of where hard and soft power converged in Iraq is in the

HTTs. Like PRTs, HTTs are a clear example of how hard and soft power are

integrated in counter-insurgency to the point where it becomes misleading to describe

a dichotomy between them. This is evident in the fact that military intelligence staff

work closely with social science experts on the same tasks, and also in the weapons

training provided to HTT personnel before deployment.189 Nothing suggests that hard and soft power have converged like anthropologists carrying weapons in a foreign combat zone. More significantly, this convergence of hard and soft power is reflected in the very nature of human terrain intelligence. By incorporating the collection of

185 Hard Lessons, above n 127, 333.

186 See Chapter Two, Part III; Chapter Three, Part III; Chapter Four, Part III.

187 See Galula, above n 5, 5, and discussion in Chapter Four, Part III.

188 Kilcullen, Counterinsurgency, above n 9, 43.

189 Gonzalez, above n 98, 49.

373 social and cultural data into an intelligence apparatus, counter-insurgency

unquestionably militarises the soft power tasks of understanding a population and

addressing its grievances. In defending this convergence of military strategy and

anthropology, then Defence Secretary Robert Gates quoted one military officer who

remarked, ‘I’m frequently accused of militarizing anthropology. But we’re really

anthropologizing the military’.190 Whether anthropologists are becoming more like

soldiers or soldiers are becoming more like anthropologists, it is clear that either of

these scenarios describes a fundamental blurring of hard and soft power. This is

important as it has created significant controversy over the role that academic

disciplines (particularly anthropology) should play in shaping military operations.191

Despite these recurring and significant examples in which hard and soft power are too integrated to separate neatly, dichotomous thinking about hard and soft power in counter-insurgency persists. As Nye claims in the opening quotation of this chapter, ‘[s]oft power was integrated into military strategy. Hard power was used to clear an area of insurgents and to hold it, and the soft power of building roads, clinics and schools filled in behind’.192 Stripped of all political and historical context, it is possible to describe hard and soft power in such neat opposition. Certainly the more striking lesson from the Surge – a lesson that can be traced back to British counter- insurgency efforts in Malaya – is that this distinction becomes far less clear in reality.

190 See ibid 76.

191 See Gonzalez, above n 98; John D Kelly et al (eds), Anthropology and Global Counterinsurgency

(University of Chicago Press, 2010); George R Lucas, ‘The Morality of “Military Anthropology”

(2008) 7(3) Journal of Military Ethics 165; Dena Plemmons and Robert Albro, ‘Practicing Ethics and

Ethical Practice: The Case of Anthropologists and Military Humanitarians (2012) 3(2) Humanity 179.

192 Nye, The Future of Power, above n 1, 37.

374 IV IS SOFT POWER MORALLY PREFERABLE TO HARD POWER?

The second component of smart power thinking is that soft power is morally preferable to hard power because it affords individuals greater autonomy. As Nye claims, soft power allows individuals a greater capacity to determine their own ‘views and choices’.193 On face value, this certainly appears to be the case with contemporary

counter-insurgency operations due to their outward focus on developing the rule of

law.194 On closer inspection, however, it becomes clear that current US approaches to counter-insurgency need significant rethinking for soft power reconstruction efforts to be consistent with autonomy. The Surge suggests that current soft power approaches to counter-insurgency have a significant negative impact on autonomy by dehumanising foreign cultures, by reinforcing prejudiced stereotypes of the Muslim

‘other’, and by imposing choice on local communities without genuine consultation.

A The Rule of Law

FM 3-24’s heavy focus on the rule of law provides some superficial support for the idea that soft power approaches to counter-insurgency are consistent with autonomy.195 The rule of law is generally associated with the preference of regular law over arbitrary power, the notion that no person is above the law, and the

193 Joseph S Nye Jr, The Powers to Lead (Oxford University Press, 2008) 44.

194 See FM 3-24, above n 2, [1-131], [D-38].

195 Ibid [1-119], [1-131], [D-38].

375 requirement that laws are published and expressed in sufficiently clear language.196

This is considered a ‘thin’ or formalistic conception of the rule of law, and ‘thicker’ accounts stress in addition substantive values such as liberty, equality, and the freedoms of speech and religion.197 A formalistic conception provides a certain degree of protection for autonomy, as having published and predictable laws ensures that individuals can plan their lives by making informed choices about the potential consequences of their actions.198 This protection is limited, however, as it is possible that laws can be published and predictable whilst allowing states to impose unduly coercive and inhumane measures on their citizens, such as torture and slavery.199

Substantive accounts are therefore consistent with much higher levels of autonomy, as they emphasise that states should not unduly coerce or discriminate between their

196 For a classic statement of the formal requirements of the rule of law, see Lon Fuller, The Morality of

Law (Yale University Press, 1969) 38-39. Fuller lists eight ‘principles of legality’, including the ideas that laws should be publicised, understandable, possible to obey, and sufficiently clear to provide a guide for conduct. See also A V Dicey, Introduction to the Study of the Law of the Constitution

(Macmillan, first published 1885, 1959 ed) 187-196.

197 See, eg, Tom Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67, 75; W I

Jennings, The Law and the Constitution (University of London Press, 5th ed, 1959) 45-53; Julius Stone,

Social Dimensions of Law and Justice (Maitland Publications, 1966) 620-621; International

Commission of Jurists, The Rule of Law in a Free society: Report of the International Congress of

Jurists (International Commission of Jurists, 1959) 313-320; Guillermo O’Donnell, ‘Why the Rule of

Law Matters’ (2004) 15(4) Journal of Democracy 32, 32.

198 In the words of Raz, ‘[t]o choose one must be aware of one’s options’: Joseph Raz, The Morality of

Freedom (Oxford University Press, first published 1986, 2009 ed) 371. See also Ricardo Garcia

Manrique, ‘Autonomy and the Rule of Law’ (2007) 20(2) Ratio Juris 280, 285-286.

199 Manrique, above n 198, 287. See also Jennings, above n 197, 45.

376 citizens.200 In other words, substantive accounts of the rule of law are consistent with

higher degrees of autonomy because they allow individuals a greater range of choices

as to how they may behave absent state interference. As Raz puts it, ‘[a]utonomy

requires that many morally acceptable options be available to a person’.201 The more

choices that are available to a person, the more autonomous that person will be.

FM 3-24 largely defines the rule of law by reference to democracy and human

rights,202 which would suggest that the US military favours the latter, substantive view.203 A closer inspection, however, reveals that the counter-insurgency theorists strongly favour a formalistic view of the rule of law which is only minimally consistent with autonomy. According to Kilcullen’s theory of ‘competitive control’,204

‘the side that best establishes … security, rule of law, and economic activity at the

local level is most likely to prevail’.205 Kilcullen believes that the rule of law is the

most valuable prize in this competition because a government can make its population

‘feel safe and secure’ through published, consistent and predictable laws.206 He gives the example of Sharia law courts in Afghanistan, which maintain popular support

200 See text to above n 197.

201 Raz, above n 198, 378 (emphasis added).

202 FM 3-24, above n 2, [D-38].

203 And, indeed, one potentially broader than most substantive accounts of the rule of law, as FM 3-24 focuses on the ‘full panoply of human rights’: FM 3-24, above n 2, [D-38]. By contrast, substantive accounts of the rule of law generally stress a more limited range of human rights, such as liberty, equality, and freedom of expression: see especially Jennings, above n 197, 49-53; International

Commission of Jurists, above n 197, 313-320.

204 Kilcullen, Counterinsurgency, above n 9, 152.

205 Ibid 159.

206 Ibid 153-154.

377 despite their frequently brutal judgments because they provide a permanent and

predictable system of criminal justice.207 He believes that a population will ‘do almost anything, and support almost anyone’, to have the predictability of law and order over

‘fear and uncertainty’.208 This formalistic approach can be traced back to Thompson, who suggested that the most important things about the laws enacted by the British in

Malaya were that they were effective, they applied equally to all, the population knew what the laws were, and the government acted in accordance with its defined powers.209 He remarked that the population ‘will stand very harsh measures indeed,

provided they are strictly enforced and fairly applied to all’.210

For counter-insurgency theorists, then, the content of the laws and the values

they express is relatively unimportant, so long as those laws are published and

predictable. More broadly, the ultimate goal of implementing the rule of law in

counter-insurgency is not to uphold substantive values such as liberty and equality for

the normative benefits that these might bring, but rather to establish a ‘normative

system of control’ that is more effective and wide-ranging than that implemented by

the insurgents.211 In practice this approach may result in a higher degree of protection

for autonomy than the measures adopted by the insurgents, but it does not guarantee

it. In the words of FM 3-24, the rule of law is considered a ‘powerful potential tool for

counterinsurgents’,212 but little more.

207 Ibid 157-158.

208 Ibid, 151.

209 Thompson, above n 5, 53.

210 Ibid 146.

211 Kilcullen, Counterinsurgency, above n 9, 153.

212 FM 3-24, above n 2, [1-119].

378 Substantive accounts of the rule of law are by no means accepted as

definitive.213 However, if counter-insurgency operations are to treat individuals as autonomous beings who deserve freedom, equality and other human rights, then a

‘thicker’, substantive approach to the rule of law would provide a more appropriate theoretical foundation. If counter-insurgency strategy adopted this substantive approach, counter-insurgency operations would focus on upholding important values because they are necessary for preserving autonomy, and not merely on establishing a predictable system of law because this is a useful method for neutralising insurgents.

B Dehumanising Language

One major way in which soft power impacts on autonomy in contemporary counter- insurgency operations is through language which constructs foreign populations as objects rather than human beings. As Cold War rhetoric depicted communism as a

‘malignant parasite’ and a ‘creeping disease’, so contemporary counter-insurgency strategy invokes a range of medical and disease-related metaphors to describe the impact that insurgents have on the surrounding civilian population.214 FM 3-24 likens clear-hold-build operations to three stages of medical intervention: first, the government should administer ‘emergency first aid’ to ‘stop the bleeding’; next, it should administer ‘inpatient care’ to assist the patient through ‘long-term recovery’;

213 See Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (In Florida)? (2002) 21

Law and Philosophy 137; Adriaan Bedner, ‘An Elementary Approach to the Rule of Law’ (2010) 2(1)

Hague Journal on the Rule of Law 48, 52; Andrei Marmor, ‘The Rule of Law and Its Limits’ (2004) 23

Law and Philosophy 1.

214 Colleen Bell, ‘Hybrid Warfare and Its Metaphors’ (2012) 3(2) Humanity 225, 231.

379 lastly, it should administer ‘outpatient care’ to help the patient move towards self- sufficiency.215 Kilcullen continues this metaphor by describing insurgencies as a

‘virus or bacterium’ which infects a host population’s immune system.216 He describes this in a four-phase process of infection and response.217 First, the population becomes ‘infected’ by a radical element such as al-Qaeda. Secondly, the infection spreads amongst the population and to other regions. Thirdly, outside forces intervene to help the population. Lastly, the local population rejects the intervention:

The rejection phase looks a lot like a social version of an immune response in which

the body rejects the intrusion of a foreign object, even one (such as a pin in a broken

bone or a stent in a blocked blood vessel) that serves an ultimately beneficial purpose.

Societal antibodies recognize the intrusion as a foreign body, emerge to attack the

intervening present, and attempt to drive it out.218

In a particularly grotesque moment, Kilcullen described the walls around Baghdad’s

gated communities as an ‘urban tourniquet’ which was designed to prevent the

‘cleansing’ of those communities by insurgents and stop a ‘life-threatening

hemorrhage’ of refugees.219 Also guilty in this regard is the HTS, which depicts

individuals as objects in a ‘human terrain’ to be studied by Western experts. For

Gonzalez, human terrain evokes the image of a ‘Picassoesque wasteland littered with

215 FM 3-24, above n 2, [5-3]-[5-6].

216 Kilcullen, Accidental Guerrilla, above n 28, 35.

217 See ibid 35-38.

218 Ibid 38.

219 Kilcullen, ‘The Urban Tourniquet’, above n 170.

380 distorted faces and distended bodies, stamped with the indelible traces of boot

prints’.220

The problem with this language is that it dehumanises those individuals and communities; it depicts them as a ‘sort of agency-less flesh that requires the expertise of outsiders to diagnose and apply the appropriate treatments’.221 In the case of the

HTS, the individuals and communities being studied are framed ‘less as morally autonomous human beings than as topographic objects’.222 Despite the outwardly

‘human’ side of counter-insurgency, then, and an apparent willingness on behalf of

the US military to build relationships with Iraqi communities, counter-insurgency

strategists approach human problems through a clinical discourse which maintains

their distance (socially, politically, conceptually) from those they perceive as

different. In the metaphors of counter-insurgency, the US government is a skilled

surgeon and the populations of states in conflict are patients to be operated upon. This

approach – in which humans are no longer human but rather objects to be diagnosed

and repaired – is the epitome of failing to treat individuals as autonomous beings. As

Bell notes, medical metaphors that focus on exterminating unhealthy elements in a

population and fostering healthy ones are a ‘distinguishing feature of racism’.223

220 Gonzalez, above n 98, 25. He notes (at 25) that the American Dialect Society named ‘human terrain’ as the ‘most euphemistic term’ of 2007.

221 Nils Gilman, ‘Preface: Militarism and Humanitarianism’ (2012) 3(2) Humanity 173, 177

(paraphrasing Bell, above n 208).

222 Gilman, above n 221, 175, paraphrasing Plemmons and Albro, above n 191.

223 Bell, above n 214, 235.

381

C Colonial Roots

A related point is that contemporary counter-insurgency operations cannot be

separated from their colonial history in which foreign cultures are viewed as an

‘other’ to be shaped in accordance with the strategic interests of the West. This

confirms a key idea raised in previous chapters: that soft power has a tendency to

undermine autonomy by reinforcing prejudiced stereotypes of non-Western

cultures.224 It also supports Layne’s view that soft power reflects and justifies an expansionist foreign policy agenda which may ultimately have counter-productive effects.225

Despite the apparent efforts by the authors of FM 3-24 to distance themselves from counter-insurgency’s colonial roots,226 it is clear that contemporary counter-

insurgency campaigns are informed by the same problematic binaries (us vs them,

West vs East, first vs third world) which informed counter-insurgency campaigns in

the classical era. This is particularly apparent in the HTS, which is driven by an

evident desire to understand the ways of life led by the Muslim ‘other’ in the Middle

East. As Bell puts it, ‘[t]he reeemergence of counterinsurgency and its attendant focus

on sociocultural knowledge evince a particular strain of the quest for knowledge of

224 See Chapter Two, Part IV(A); Chapter Four, Part IV.

225 Christopher Layne, ‘The Unbearable Lightness of Soft Power’ in Inderjeet Parmar and Michael Cox

(eds), Soft Power and US Foreign Policy: Theoretical, Historical and Contemporary Perspectives

(Routledge, 2010) 51, 73.

226 See especially FM 3-24, above n 2, xxxiii, [1-119], [1-131], [D-38], [7-39]-[7-44].

382 “others” and its manipulation into useable military intelligence’.227 This quest for knowledge of the ‘other’ is understood as a founding feature of Western Empire.228

Like classical counter-insurgency, then, contemporary counter-insurgency operations reinforce prejudiced stereotypes of foreign cultures as more primitive than the West and therefore in need of modernisation.229 This paternalistic approach justifies interventionist policies which transform those cultures in accordance with the strategic and economic interests of Western powers – a new ‘civilising mission’ which is ostensibly aimed at reconstruction and empowerment but is really ‘employed in the service of US security interests’.230 This reduces the autonomy of those

227 Bell, above n 214, 229. See also Moritz Feichtinger, Stephan Malinowski and Chase Richards,

‘Transformative Invasions: Western Post-9/11 Counterinsurgency and the Lessons of Colonialism’

(2012) 3(1) Humanity 35, 37.

228 See Bell, above n 214, 229; Alex Marshall, ‘Imperial Nostalgia, The Liberal Lie, and the Perils of

Postmodern Counterinsurgency’ (2010) 21(2) Small Wars and Insurgencies 233, 235. This idea of

Western countries seeking knowledge of the ‘orient’, and thereby reinforcing false, romanticised and paternalistic understandings of those cultures, is generally traced back to Edward W Said, Orientalism

(Penguin, first published 1978, 2003 ed).

229 See generally Bell, above n 214, 229; Feichtinger, Malinowski and Richards, above n 227, 37;

Douglas Porch, ‘The Dangerous Myths and Dubious Promise of COIN’ (2011) 22(2) Small Wars and

Insurgencies 239, 240. See discussion in Chapter Four, Part IV.

230 Jonathan Gilmore, ‘A Kinder, Gentler Counter-Terrorism: Counterinsurgency, Human Security and the War on Terror’ (2011) 42(21) Security Dialogue 21, 33. See also Feichtinger, Malinowski and

Richards, above n 227, 38, who argue that ‘the overall aim of the Western powers is to increase control over economic, strategic, and political spheres and to bring non-Westerners closer to the West’. See also Porch, above n 229, 252: ‘COIN offers a doctrine of escapism – an escape from civilian control, even from modernity, into an anachronistic, romanticized, Orientalist vision that projects quintessentially Western values onto non-Western societies’. See also Bell, above n 214, 241: ‘Claims

383 populations because it affects their ability to participate as political equals in the

international sphere, and it reduces their capacity to freely choose a political system

and a way of life on their own terms. As Douglas Porch argues, ‘modern COIN-

dinistas are basically romantics who apply paternalistic theories onto populations that

will be grateful for their improved conditions’.231 In the words of another counter- insurgency critic, the Bush administration’s approach was based on the ‘fundamental belief that hiding inside every Iraqi was an American waiting to jump out.’232 As the

British government aimed to create a democratic, economically developed Malaya

that would reject communist ideology, so the US government wants a democratic and

economically developed Middle East which is capable of rejecting radical Islam. In

repeating this colonial history, the US is drawing on a ‘romanticized, Orientalist

vision that projects quintessentially Western values onto non-Western societies.’233

D Imposing Choice

A final theme relates to this idea that counter-insurgency involves imposing choices

on populations rather than allowing them to determine their own desires and

that counterinsurgency is concerned with understanding the culture of local peoples, addressing their

grievances, and producing a functioning government that adheres to the rule of law must be understood

in terms of the strategic intentions that give rise to the goals.’

231 Porch, above n 229, 251.

232 Mark T Berger and Douglas A Borer, ‘The Long War: Insurgency, Counterinsurgency and

Collapsing States’ (2007) 28(2) Third World Quarterly 197, 209.

233 Porch, above n 229, 252.

384 preferences. This builds on an important theme raised in previous chapters: that soft

power frequently limits and constrains rather than preserves or expands free choice.234

On a more practical level, this could be seen in Iraq in many reconstruction

projects which imposed choices on communities without genuine consultation. Some

of these projects, as exposed by Peter Van Buren, involved ridiculous attempts to

develop the entrepreneurial skills of Iraqis seriously affected by the conflict. Van

Buren was a veteran State Department foreign service officer on an Iraqi PRT who

had his security clearance removed for publishing a book appropriately entitled We

Meant Well.235 The book describes a long list of mishaps and misguided

reconstruction efforts in Iraq. For example, Van Buren details two projects which

were designed to help Iraqi war widows raise pregnant sheep and produce honey from

bees.236 He remembers thinking that ‘[i]t seemed like a good enough idea, helping widows’,237 although he soon recognised that they should have first checked with the

Iraqis, ‘because it turned out widows were not as keen to keep bees as we thought’.238

Van Buren’s book is a satirical critique of his government employer, so his

comments are often exaggerated for effect. Undoubtedly there were also many

reconstruction projects in Iraq which were valuable and well-informed.239 However,

the projects he details are illustrative of a broader point: that soft power reconstruction

234 See Chapter Two, Part IV(B); Chapter Four, Part IV.

235 Van Buren, above n 64. See Lisa Rein, ‘State Dept moves to fire Peter Van Buren, author of book

critical of Iraq reconstruction effort’, Washington Post, 14 March 2012.

236 Van Buren above n 64, 35, 137-138.

237 Ibid 35.

238 Ibid 138.

239 See, eg, SIGIR Final Report, above n 64, 110-111 (healthcare), 112-113 (education and humanitarian relief).

385 efforts (building roads, encouraging elections, and providing economic opportunities)

are not by their nature consistent with autonomy, because they can impose unwanted

choices on others as often as they can increase or preserve the capacity to choose.

This builds on the idea raised in previous chapters that soft power can take on two

diametrically different forms in the context of countering political violence: one

which is consistent with autonomy and one which constrains and limits choice.240

The issues that Van Buren raises are recognised by others who support

counter-insurgency and by independent bodies, which lends them credibility despite

his satirical approach. Kilcullen describes a pattern of ‘aid-and-contracting-driven

violence’ in the Middle East which arose in part because the US military neither

consulted with the communities as to the projects they would receive, nor involved

community members in delivering the projects.241 Instead, projects were usually given

to communities rather than developed in consultation with them, and security guards

and other government contractors were attacked and sometimes killed as a result.

Kilcullen quotes a New York Times article in which one Afghani elder told of his

resentment when the US military decided to build a road in his community:

‘They do not ask our villagers to participate in these projects or hire them to do any

of the labor. This makes our people angry,’ he said. ‘And they start projects in our

area without consulting the village elders. They start cleaning our canals for us, or

240 See Chapter Three, Part IV; Chapter Four, Part IV.

241 David Kilcullen, Out of the Mountains: The Coming Age of the Urban Guerrilla (Oxford University

Press, 2013) 11, 14.

386 building a road for us. I don’t want a road, why would you build that? We need a

school or clinic.’242

SIGIR likewise criticised reconstruction efforts in Iraq for failing in many cases to involve the communities concerned. SIGIR recommended that reconstruction efforts should be devised in a genuine process of consultation which reflects local needs:

Programs should be geared to indigenous priorities and needs. Host country buy-

in is essential to reconstruction’s long-term success. Much of the early and some later

efforts in Iraq focused on large projects that were meant to benefit Iraqis directly.

Other projects devised new and more efficient systems for conducting business inside

the Iraqi government. In many cases, there was a lack of sufficient Iraqi participation

in deciding how or what to reconstruct and ensuring that projects could be maintained

afterwards. Detailed joint planning with Iraqi officials—perhaps the most important

prerequisite for success after security—only gradually improved over time.243

On this understanding, soft power approaches to counter-insurgency will only preserve autonomy if they grant individuals the capacity to realise their own desires

242 Alissa Rubin and Sharifullah Sahak, ‘Taliban Attack Afghan Guards in Deadly Raid’, New York

Times, 20 August 2010, cited in Kilcullen, Out of the Mountains, above n 231, 11.

243 Hard Lessons, above n 127, 332-3. See also Bell, above n 214, 241: ‘Absent from the enterprise of counterinsurgency is evidence of a genuine commitment to fostering, let alone acknowledging, the self- determination of the people on whose behalf it is supposedly waged’. See also Gilmore, above n 230,

22: ‘The use of human security-like principles and the concern for local engagement and cultural sensitivity do not automatically equate to the genuine empowerment of local population in shaping the future of their country’

387 and preferences through a process of genuine consultation. There is nothing about soft

power per se which is consistent with autonomy, and dispensing benefits to

communities who may or may not want them does not equate to preserving free

choice. Nye would likely argue that these reconstruction efforts are still more

consistent with autonomy than combat operations – and of course there is a basic truth

to such a statement – but the point is that this kind of simplistic thinking obscures the

many potential problems posed by soft power approaches to counter-insurgency. The

assumption that there is something intrinsically ‘good’ about soft power leads to

poorly planned policies in which benefits are handed out with little thought as to

whether these programs are in reality giving communities want they want and need.

It is interesting to note that Kilcullen has come to this realisation in his most

recent book, which was written two years after the US withdrawal from Iraq.244 Given

sufficient time to reflect on the events and mistakes of the Surge, Kilcullen has

updated his theory by advocating a ‘co-design approach’.245 Co-design is an approach

to reconstruction which ‘tries to avoid fetishizing external, technocratic, top-down,

white-guy-with-clipboard knowledge’.246 Kicullen argues that a counter-insurgent government should ‘explicitly acknowledge that it has no right to tell the locals what to do.’247 He adds that the US government should no longer attempt ‘to turn every

society into a mirror of our own’.248 His co-design approach, by contrast, would involve ‘local people directly and intimately in a participative way, designing

244 Kilcullen, Out of the Mountains, above n 241.

245 See ibid 255-259.

246 Ibid 256.

247 Ibid 257.

248 Ibid 259.

388 solutions to their own problems, but not left to sink or swim on their own’.249 If such an approach is implemented successfully in the future, then soft power approaches to counter-insurgency could go a long way to improving the autonomy of local populations. To date, the clearest lesson from US counter-insurgency efforts in Iraq is that soft power is seldom about preserving free choice, and more frequently involves the US government imposing choices on others.

V ARE HARD POWER AND SOFT POWER COMPLEMENTARY?

This section tests the third component of smart power thinking by considering three factors as outlined in Chapter One: the extent to which hard and soft power are compatible, the extent to which combining hard and soft power is effective, and the extent to which it is possible for a government to develop a smart power strategy by reducing its existing reliance on hard power.

A Compatibility of Hard Power and Soft Power

The counter-insurgency approach adopted during the Surge in Iraq provides some significant evidence that hard and soft power are mutually supporting approaches to countering political violence. It suggests that hard power supports soft power by providing the levels of security necessary for reconstruction efforts to succeed, and it suggests that soft power supports hard power by providing greater long-term security than hard power alone would achieve. This was one of the final conclusions reached by SIGIR. SIGIR reported that ‘[s]ecurity is necessary for large-scale reconstruction

249 Ibid 259.

389 to succeed’, because endless rebuilding in the face of repeated insurgent attacks

‘proved to be a demoralizing and wasteful proposition’.250 Equally, SIGIR reported that ‘[s]oft programs serve as an important complement to military operations in insecure environments’, because they ‘increase community acceptance and provide a higher and more lasting degree of local security’.251 This mutually supporting relationship between hard and soft power can be seen in successful examples of clear- hold-build operations, particularly in Tal Afar and Fallujah.252

On the other hand, there is also significant evidence of tensions and

inconsistencies between hard and soft power which are given insufficient attention in

popular narratives surrounding the Surge. These examples reinforce the idea raised in

previous chapters that hard and soft power often work at cross-purposes.253

One key example of these tensions relates to the rule of law. On the one hand, counter-insurgency operations are explicitly designed to establish the rule of law, which FM 3-24 links to democracy and human rights.254 On the other hand, counter- insurgency strategy describes the rule of law as a ‘powerful potential tool’,255 and it

permits a range of severe restraints on liberty.256 In practice, this leads to tactics which, to lawyers at least, are strikingly incompatible. For example, in Baghdad’s gated communities, the US military implemented extraordinary population control measures (12-foot high concrete walls, controlled access points, and biometric

250 Hard Lessons, above n 127, 331-332.

251 Ibid 332.

252 See FM 3-24, above n 2, 182-184; Green, above n 87.

253 Chapter Two, Part V(A); Chapter Three, Part V(A).

254 FM 3-24, above n 2, [1-131], [D-38].

255 Ibid [1-119].

256 See, eg, the recommended range of population control measures: FM 3-24, above n 2, [5-71]-[5-74].

390 scanning of innocent people) which according to many contemporary accounts of

legal theory would be considered inimical to the rule of law.257 Even if these measures

are intended as a short-term emergency solution,258 the idea of bringing about the rule of law through such extreme practices is a contradiction in terms. This tension is summed up nicely in the idea of ‘providing security under the rule of law’.259 If the security required to bring about the rule of law amounts to such extraordinary restrictions on liberty, then providing security (hard power) and developing the rule of law (soft power) are not compatible objectives.

Other tensions between hard and soft power could be seen in the different approaches taken by military and civilian personnel on the PRTs. Several reports and commentators have noted the difficulties in requiring military and civilian personnel to work together on the same tasks. This was largely because the civilian and military personnel worked on ‘different time horizons’.260 To the civilian personnel, their

military counterparts were overly concerned with short-term objectives such as

protecting the team; to the military personnel, their civilian counterparts were overly

concerned with long-term, capacity-building solutions.261 These ‘cultural differences

257 See text to above n 197.

258 As Kilcullen suggests: Kilcullen, ‘The Urban Tourniquet’, above n 170.

259 FM 3-24, above n 2, [1-131].

260 John K Naland, Lessons From Embedded Provincial Reconstruction Teams in Iraq (United States

Institute of Peace, Special Report 290, October 2011) 8.

261 Ibid; Dale, above n 95, 99: One civilian official remarked, ‘only partly tongue in cheek, that it’s a case of “‘sit back and reflect’ versus “take that hill!”’. See also Rusty Barber and Sam Parker,

Evaluating Iraq’s Provincial Reconstruction Teams While Drawdown Looms: A USIP Trip Report

(United States Institute of Peace, December 2008) 1: ‘Since their 2005 inception in Iraq, PRTs have struggled to fully define their mission, overcome structural problems, learn to work alongside their

391 between civilians and the military sometimes strained relations’.262 According to one ePRT veteran, ‘the ePRT did its thing, the Army did its thing, and sometimes they were complementary and sometimes they were at odds’.263 This is not simply a minor practical issue within each PRT, because it implies larger competing tensions in the overall objectives guiding US counter-insurgency efforts. As SIGIR reported,

‘[b]alancing the brigade’s short-term imperative of force protection against the PRT’s longer-term development goals was difficult.’264 It suggests that there are inherent

tensions in attempting simultaneously to establish short-term and long-term security.

Other tensions could be seen in the contrasting approaches to counter-

insurgency that US and British forces adopted at different ends of the country. It is

often noted that the British military takes a ‘softer’ approach to counter-insurgency

than the US military, which focuses to a greater extent on hard power military

efforts.265 This divergence in approach is possible because counter-insurgency strategy provides enormous scope for variation; it is not an exact formula for defeating an insurgency but rather a set of principles which allow governments sufficient flexibility to favour its ‘harder’ or ‘softer’ aspects.

In Iraq, senior British commanders operating in Basra (Iraq’s main port in the south of the country) criticised the ‘heavy-handed’ approach taken by the US military

military counterparts and assist Iraqis down the path to self-governance and stability so that U.S. forces

can withdraw … The experience thus far has been bumpy’. See generally Peter D Feaver, ‘The Right to

Be Right: Civil-Military Relations and the Iraq Surge Decision’ (2011) 35(4) International Security 87.

262 Naland, above n 260, 8.

263 Ibid 8.

264 Hard Lessons, above n 127, 303.

265 Paul Dixon, ‘“Hearts and Minds”? British Counter-Insurgency from Malaya to Iraq’ (2009) 32(3)

Journal of Strategic Studies 353, 372.

392 in the north.266 The British military was attempting to bring militia leaders into the

political process, a strategy previously attempted in Northern Ireland.267 These efforts at political reconciliation were impeded and British troops became a target for reprisals because many Iraqis closely associated their efforts with US troops operating elsewhere.268 This shows that tensions between hard and soft power approaches can exist not only within the counter-insurgency efforts of a single military, but also across different members of a military coalition operating in different parts of a country.

Nye recognises that hard and soft power can ‘sometimes interfere with each other’,269 so this is not to suggest that he is unaware that these two approaches can

potentially conflict. But his overall support for smart power strategies, like popular

narratives surrounding the Surge, reveals a clear bias towards examples where hard

and soft power work effectively in tandem. Significantly less attention is paid to the

tensions, complexities and inconsistencies created when hard and soft power are

combined, and yet these pose some of the most pressing and important contemporary

issues. The Surge provides some significant evidence that hard and soft power can be

combined effectively, but it also provides significant evidence to the contrary. If

smart power approaches to counter-insurgency are to be effective, any tensions

between hard and soft power require focused attention. They should not be dismissed

lightly in favour of a shorthand rule that hard and soft power are complementary.

266 Ibid 373.

267 Ibid.

268 Ibid.

269 Nye, Soft Power, above n 166, 25.

393 B Effectiveness of Combining Hard Power and Soft Power

Even if hard and soft power generally support each other in counter-insurgency

operations, there is still a bigger question about whether the combination of hard and

soft power proved effective in reducing violence in Iraq. An initial problem in this

regard, as noted in Chapters Two and Three with regard to counter-terrorism,270 is that

the success of soft power is notoriously ‘difficult to quantify’.271 As Van Buren notes,

‘[o]ne of the difficult parts about counterinsurgency was that it was hard to tell when you had won. You measured success more by what did not happen than what did, the silence that defined the music’.272 Whereas hard power military operations can be

assessed in terms of enemies killed, enemies captured, enemy outposts secured, and

the like,273 soft power reconstruction efforts provide little in the way of accurate metrics and so are usually judged according to how much money is invested. This provides an indication of the effort invested into soft power, but it provides little direct evidence as to whether the projects are having a beneficial impact on communities. As SIGIR reported, many civilian representatives on the PRTs complained that ‘the set of metrics used by the military to measure … progress placed too much emphasis on spending money and not enough on achieving the right

270 Chapter Two, Part V(B); Chapter Three, Part V(B).

271 Hard Lessons, above n 127, 332.

272 Van Buren, above n 64, 130. See also 68.

273 Kilcullen, Counterinsurgency, above n 9, 57-59.

394 effects.’274 To fill this gap, some commentators rely on vague indicators of success such as ‘feel’ and ‘atmosphere’. As quoted above, Ricks believed that Baghdad ‘felt distinctly better’ after the Surge, in part because local businesses such as kebab stores and coffee shops had reopened.275 This is not to deny that military experts on the ground can have valuable insights, but their insights are nonetheless subjective and should not be mistaken for direct evidence that combining hard and soft power is effective.

The statistics showing a significant drop in violence between 2007 and 2008, as set out in Part II above, provide the clearest evidence that counter-insurgency efforts in Iraq proved effective in reducing violence. However, in Van Buren’s words, these figures show silence rather than music: they show a lack of something happening (attacks, deaths, explosions) rather than the occurrence of something which is directly attributable to an identifiable source. As such, it is difficult to know the extent to which the smart power strategy introduced by General Petraeus was directly responsible for those statistics.

Of course, there is an obvious correlation between the time at which the US military adopted a smart power strategy in Iraq and the dramatic reduction in violence. The problem with attributing the reduction in violence to Petraeus’ smart power strategy is that other important developments occurred around the same time as

274 Hard Lessons, above n 127, 303. See also Van Buren, above n 64, 144, who recalls that

‘[e]verything was measured only by what we put in – dollars spent, hours committed, people engaged, bees pressed on widows, press releases written’.

275 Ricks, above n 89, 294.

395 the Surge which had little to do with counter-insurgency. It is clear that these

developments also played a significant role in reducing violence during that period.276

The first important development, in August 2007, was that Muqtada al-Sadr

declared a ceasefire against Coalition troops and the Iraqi security forces.277 Sadr was the leader of the Mahdi Army, a radical Shi’a militia operating out of Sadr City in the north-east of Baghdad. The Mahdi Army had led significant resistance efforts against the US military since the insurgency began. Sadr declared the ceasefire to

‘rehabilitate’ his militia after a violent clash with Iraqi security forces in Karbala.278

The second important development was the Sons of Iraq (SOI) program, in

which the US military paid local residents and former insurgents to protect and defend

their communities. The program began in late 2007, and by March 2008, the US

military had recruited over 90 000 SOIs.279 The military paid a monthly salary of around $300USD, and in return the SOIs helped the Coalition forces by manning check points, protecting infrastructure, and providing information about suspicious

276 Several authoritative and independent sources, as well as academic commentators, agree that counter-insurgency tactics were not solely responsible for the reduction in violence in Iraq during 2007 and 2008, and that multiple factors need to be taken into account: Dale, above n 95, 107; SIGIR Final

Report, above n 64, 92: Dunn and Futter, above n 154, 196; Stephen Biddle, Jeffrey A Friedman and

Jacob N Shapiro, ‘Testing the Surge: Why Did Violence Decline in Iraq in 2007?’ (2012) 37(1)

International Security 7, 36; Bernard Stancati, ‘Tribal Dynamics and the Iraq Surge’ (2010) 4(2)

Strategic Studies Quarterly 88, 88, 90, 108.

277 See Bill Roggio, ‘Sadr calls for Madhi Army ceasefire’, Long War Journal, 29 August 2007

; Stanford University,

Mahdi Army: Mapping Militant Organisations (2012) .

278 Roggio, above n 277.

279 Dale, above n 95, 88.

396 activity.280 The reasons why the program developed are complex, but it is clear that

they were ‘not solely attributable to US counterinsurgency strategy’.281 A major cause was the ‘Anbar Awakening’, a movement of Sunni Arabs who declared their support for Coalition forces after al-Qaeda began a ‘campaign of murder and intimidation’ in

Anbar province, particularly in the capital Ramadi.282

Another factor contributing to the reduction of violence in Iraq is referred to as

the ‘nobody left to kill’ theory.283 To assess the success of the Surge, researchers at

the University of California Los Angeles (UCLA) assessed changes in night-time

satellite imagery of Baghdad and other cities in Iraq.284 Their hypothesis was that they

would be able to see an increase in the number of lights over the course of the Surge

as infrastructure was repaired and restored.285 What the researchers instead found was that Baghdad experienced a decrease in light signatures during the Surge, and that this decrease was not uniform across its neighbourhoods.286 By studying population statistics of Baghdad’s neighbourhoods over the same period, the UCLA researchers

280 Ibid 90.

281 Malkasian, above n 82, 306.

282 Dale, above n 95, 86, 89; Malkasian, above n 82, 305. The SOI program subsequently began as an ad hoc collection of ‘neighbourhood watch’-style initiatives amongst Sunni communities, and later spread to Shi’a groups and former insurgents: Dale, above n 95, 89; Malkasian, above n 82, 306. The

US military’s response was also ad hoc until it later formalised the payment system: Dale, above n 95,

89.

283 Patrick Cockburn, ‘Who is Whose Enemy?’ (2008) 30(5) London Review of Books 14. See John

Agnew et al, ‘Baghdad Nights: Evaluating the US Military “Surge” Using Nighttime Light Signatures’

(2008) 40 Environment and Planning 2285, 2291.

284 Agnew et al, above n 283.

285 Ibid 2286.

286 Ibid 2289.

397 found a correlation between the most stable light signatures and low rates of ‘ethno-

sectarian residential mixing’.287 In other words, the areas of Baghdad with the most stable light signatures were either those that had traditionally been dominated by

Sunni or Shi’a, or those that became more religiously homogeneous during the

Surge.288 Other communities experienced a dramatic drop in light signatures due to

‘massive ethnic cleansing’.289 As a result, the researchers concluded that improved security in Baghdad had little to do with the Surge:

We interpret this change as indicating that violence has decreased in Baghdad not

because of an overall improvement in material conditions or because US troops have

imposed a Pax America on the city but because large parts of the city have been

emptied of their existing populations and sometimes replaced with coreligionists, thus

reducing the local stimulus to violence[.]290

In other words, ‘[l]ocally, there was no one left to attack’.291 If the Surge had anything

to do with improved security, they concluded, it was that the military ‘helped to seal

off neighborhoods from one another once they became ethnically homogenized’.292

This last insight raises striking parallels with the events of the Malayan

Emergency. This is because the Malayan Emergency and the Surge both provide

significant evidence that hard power – and not the combination of hard and soft power

287 Ibid 2291.

288 Ibid 2292.

289 Ibid 2292.

290 Ibid 2292.

291 Ibid 2291.

292 Ibid 2292.

398 – provides the most effective method for defeating insurgencies. As explained in

Chapter Four, several historical accounts of the Malayan Emergency suggest that the

resettlement camps introduced by Briggs played the most significant role in defeating

the communist insurgency.293 This was because the coercive framework of the

resettlement camps allowed the British to separate the population from the insurgents

and to infiltrate the camps with a pervasive intelligence apparatus.294 Similarly, the

events of the Surge suggest that hard power (being a combination of population

control measures and inducements in the forms of payments to SOIs) provided the

most significant improvements in security.295 Indeed, this idea is supported by

Petraeus’ own testimony to Congress, in which he attributed the success of the Surge

largely to security measures in Baghdad, the SOI program, and offensives against al-

Qaeda.296 The role of soft power approaches cannot be ignored, as many commentators still list counter-insurgency tactics as one factor among many

293 Karl Hack, ‘The Malayan Emergency as Counter-Insurgency Paradigm’ (2009) 32(3) Journal of

Strategic Studies 32(3) 383, 384-385; John Newsinger, British Counterinsurgency: From Palestine to

Northern Ireland (Palgrave, 2002) 51, 54; Anthony Short, The Communist Insurrection in Malaya:

1948-1960 (Frederick Mueller, 1975) 392, 502; Leon Comber, Malaya’s Secret Police 1945-60: The

Role of the Special Branch in the Malayan Emergency (Monash Asia Institute and Institute of

Southeast Asian Studies, 2008) 8, 81, 149, 285. See discussion in Chapter Four, Part V(B).

294 See ibid.

295 See Agnew et al, above n 283; Dale, above n 95, 107; Biddle, Friedman and Shapiro, above n 276,

36; Kilcullen, The Accidental Guerrilla, above n 28, 142.

296 See Council on Foreign Relations, Gen David H Petraeus Report to Congress on the Situation in

Iraq (10 September 2007) 2, 4-5 ; General David H Petraeus, Report to Congress on the Situation in Iraq (8-9

April 2008) 3-4 .

399 contributing to the reduction of violence in Iraq.297 However, there is a clear disjuncture between the importance ascribed to soft and smart power in FM 3-24 and the role that these approaches played in reducing political violence in practice.

Two final points may be made with regard to the effectiveness of combining hard and soft power in Iraq. The first, as raised in Chapter Four with regard to the

Malayan Emergency, is that the Surge provides one particular historical scenario in which a smart power strategy was implemented. This scenario is subject to a range of contextual factors – among them cultural, economic, legal and political. As such, the

Surge may provide some general context and insights into how smart power strategies are applied and the uses to which they may be put, but it is not sufficient of itself to prove (or indeed disprove) that combining hard and soft power is effective.

Secondly, any claims about the effectiveness of combining hard and soft power in Iraq need to be tempered by the reality of the conditions in which Iraq has been left. SIGIR has reported continuing dissatisfaction with the levels of essential services in Iraq, particularly in Baghdad,298 as well as significant problems in

implementing the rule of law.299 Several other commentators have noted that the

Surge, while perhaps successful in reducing security in the short-term, failed to achieve these important long-term goals.300 Indeed, in 2013 Iraq saw some of the heaviest fighting it had experienced since the violent civil war of 2006.301 In mid-

297 Dale, above n 95, 107; SIGIR Final Report, above n 64, 92: Dunn and Futter, above n 154, 196;

Biddle, Friedman and Shapiro, above n 276, 36; Stancati, above n 276, 88, 90.

298 Hard Lessons, above n 127, 317.

299 SIGIR Final Report, above n 64, 92, 101.

300 Dunn and Futter, above n 154, 196-197; Stancati, above n 276, 108; Ricks, above n 89, 296.

301 Luke Harding, ‘Iraq suffers its deadliest year since 2008’, The Guardian (London), 2 January 2014;

Lincoln Archer, ‘Iraq Violence: Why the Death Toll is Rising’, ABC News (online), 1 August 2013

400 2014, the Islamic State (IS), a derivative of al-Qaeda in Iraq, has taken control of

several major cities in the country and has declared an Islamic caliphate in the

region.302 These reflect systemic problems that a 12-month surge of troops could never have hoped to resolve, but it nonetheless demonstrates how popular narratives about the Surge can unrealistically praise the benefits of a smart power approach when the reality is much bleaker. If the smart power approach implemented during the Surge was effective, it was effective in bringing Iraqi society ‘back from the brink of total collapse’,303 but it certainly does not provide a panacea to the problems posed

by violent insurgencies.

C Capacity to Rebalance Hard Power Strategy

A final issue relates to whether it is possible for governments to develop a strategy

which relies excessively on hard power into one which strikes an appropriate balance

between hard and soft power. The answer to this question depends on the extent to

which Petraeus’ counter-insurgency strategy represented a change in approach from

the strategy that preceded it. The popular narrative surrounding the Surge and

Petraeus is similar to that surrounding Templer in Malaya: a military entrenched in its

coercive and counter-productive ways was saved by an insightful strategist who

; BBC News (online),

‘Iraq’s annual death toll highest in five years – UN’, 1 January 2014

; Patrick Markey, ‘More than 1,000 killed in

Iraq violence in May’, Reuters (online), 1 June 2013 .

302 See text to above n 159.

303 Kilcullen, The Accidental Guerrilla, above n 28, 117.

401 effected a significant change in institutional culture. To some extent, this account

accurately describes Petraeus’ contribution to the war in Iraq: it is undeniable that he

made some significant changes to the excessively coercive tactics that came before

him. Regardless of the extent to which the Surge proved effective in reducing

violence in Iraq, it is clear that the US military paid far greater attention to soft power

from 2007 compared to the ‘shock and awe’ approach of the initial invasion and the

‘heavy-handed’ tactics used to counter the insurgency between 2004 and 2006.304 In

this respect, the Surge represents the clearest example of the four case studies of a

government successfully developing a hard power strategy into a smart power

strategy.305

This change in strategy should not be overstated, however, as it is clear that

Petraeus still placed enormous value on hard power. Significant hard power efforts continued throughout the Surge, including large-scale combat offensives against al-

Qaeda and insurgent bases. In particular, the population control measures introduced as part of the Surge led to severe restrictions on Baghdad’s civilian population.306 It

might therefore be more accurate to say that the Surge, like Templer’s efforts to win

hearts and minds in Malaya, signalled a significant investment in soft power but little

reduction in the use of hard power.

In particular, the evident tensions in requiring military personnel to work with

civilian agencies on the PRTs suggests that the US military found it difficult to adapt

304 Malkasian, above n 82, 289.

305 Cf Chapter Two, Part V(C); Chapter Three, Part V(C); Chapter Four, Part V(C).

306 See Kilcullen, ‘The Urban Tourniquet’, above n 170; Brulliard, above n 170; Cordesman, above n

170.

402 to the soft power tasks required by counter-insurgency.307 It seems that the transition to a smart power approach can be extremely difficult when employees of an institution are accustomed to using hard power. It also suggests that we should not place too much significance on the publication of FM 3-24 as evidence that the ethos of the US military underwent dramatic change on the battlefield. As Gilmore notes:

Doctrinal publications, while sketching out an initial commitment to lower-impact

operations, are by themselves unlikely to reverse many years of careful training in the

use of overwhelming force and the cultivation of a ‘warrior ethos’ among military

personnel. The US Army promotes its version of this ethos in ‘The Soldier’s Creed’,

ten value statements central to the role of the US soldier. Significant within these is

the statement that ‘I stand ready to deploy, engage and destroy the enemies of the

United States of America in close combat’. It is questionable whether soldiers imbued

with such a warrior ethos, trained for conventional war-fighting and the destruction of

the state’s enemies, could readily transform into culturally sensitive negotiators.308

307 Naland, above n 260, 8; Dale, above n 95, 99; Barber and Parker, above n 261, 1; Feaver, above n 261.

308 Gilmore, above n 230, 27. Van Buren makes a similar point in a humorous account of two Colonels he worked under in Iraq: ‘Both Colonels thought of themselves as old-school Army, remarking at the drop of a moment’s pause on their days commanding tanks, leaping from planes, or firing big, clunky violent things. They could each probably name six or seven small animals they could kill by hand, and they preferred to have little to do with what they saw as the less vital world of counterinsurgency and reconstruction. The Colonels understood the need to give counterinsurgency its due, however, and so on their bookshelves, along with never-read Sun Tzu … and Clausewitz, were never-read volumes by this war’s celebrity warrior-intellectuals, David Kilcullen and John Nagl. General Petraeus’s never- read Field Manual 3-24 occupied a place of honor on their desks’: Van Buren, above n 64, 123-124.

403 VI CONCLUSIONS

During the Surge of 2007, the US military led by General David Petraeus implemented a smart power approach to counter a violent insurgency which had arisen after the invasion in 2003. This counter-insurgency approach became necessary because the heavy-handed tactics initially employed to defeat the insurgency only generated further resentment amongst the population. The counter-insurgency approach introduced by Petraeus, as set out in the US Army Field Manual FM 3-24, reflects the basic principles of classical counter-insurgency as established by Kitson,

Thompson and Galula in the post-WW2 era. In this respect, the Surge builds on the

Malayan Emergency by providing a contemporary case study of how a military implemented a smart power approach to countering political violence. A smart power approach to counter-insurgency can be seen not only in the overall combination of armed force and civil reconstruction, but also in the dual roles played by law and intelligence.

Popular narratives of the Surge emphasise that this smart power approach caused a significant decline in violence in Iraq, which allowed US troops to withdraw from the country in 2011. This is supported by figures showing a dramatic decline in security incidents over 2007 and 2008. However, by testing the events of the Surge against the three components of smart power thinking, it becomes clear that the events of the Surge are significantly more complex than this smart power logic suggests.

With regard to the first component of smart power thinking, the Surge provides recurring examples of where hard and soft power converged to the point where it is difficult to separate them neatly. In Baghdad’s gated communities, the US military erected concrete barriers and checkpoints which were undeniably coercive but were designed simultaneously to win the support of the population. In military

404 prisons, the US military implemented literacy and vocational programs to de-

radicalise captured insurgents. In the PRTs, civilian and military personnel worked

together to advance both security and reconstruction goals. In the HTTs, military intelligence staff and social science experts led an intelligence program which involved the collection of cultural information about Iraqi society. This does not suggest that it is meaningless to distinguish between killing an insurgent and building a medical clinic, for example. But beyond such simple examples, the more striking lesson from the Surge is that hard and soft power frequently converge and overlap in contemporary practice. In this respect, the Surge did not signal the development of a soft power approach which was radically distinct from hard power; rather, it signalled the development of hybrid measures which closely integrated hard and soft power.

With regard to the second component of smart power thinking, the Surge

provides significant evidence that soft power frequently dehumanises and keeps at a

distance those subjects to whom it is directed. This fails to preserve the autonomy of

those individuals because it treats them not as humans capable of making independent

decisions, but rather as objects in need of external intervention. In Iraq, this was

caused in part through language which depicted the insurgents as a disease and the

population as a host which had been infected, but it also reflects wider structural

problems in the idea of shaping foreign societies in accordance with the cultural

image and strategic interests of the West. This suggests that careful choices of

language and rhetoric can solve the problems posed by soft power to some degree, but

what is also needed is a genuine commitment to empowering communities so that

they may choose their own futures. In particular, for soft power to be consistent with

autonomy, it requires a genuine process of consultation with the communities

concerned – something which the US military failed in many cases to do in Iraq.

405 The Surge also provides significant evidence contrary to the third component of smart power thinking. First, the Surge provides some evidence that hard and soft power can prove mutually beneficial in combating insurgencies, but there are also a number of tensions between hard and soft power which are given far less attention in popular accounts of the Surge. For example, the evident tensions between the military and civilian personnel on the PRTs suggest there is an inherent tension in the idea of trying to achieve short-term and long-term security at the same time. These problems might be mitigated to some extent if more attention is paid in the future to improving cooperation across different parts of government, although such improvements may require long-term changes to institutional culture. In either case, these tensions between competing approaches are not something that can be dismissed lightly in favour of a general rule that hard and soft power are complementary.

Secondly, orthodox accounts of the Surge support the idea that combining hard and soft power is an effective method for defeating insurgencies, and yet on closer inspection this basic proposition is complicated by several other factors. The

Mahdi Army ceasefire, the SOI program, and the idea that religious minorities in any given area of Baghdad had all been killed by 2008, all provide additional explanations as to why violence reduced during the same period. In combination, these additional factors provide significant evidence that hard power (being a combination of combat operations against al-Qaeda, population control measures against the Iraqi population, and inducements in the form of payments to the SOIs) played a more significant role than Petraeus’ smart power strategy in reducing violence during 2007 and 2008. This is not to suggest that soft power did not also contribute to the reduction in violence, but it does suggest that the importance of Petraeus’ approach is typically overstated.

406 As with the Malayan Emergency, the idea that a soft power approach led to a

dramatic reduction in violence is far too simplistic an historical account.

The idea that hard power played the decisive role in the Surge raises further

parallels with the British experience in Malaya. With regard to both conflicts, many

commentators suggest that hard power – and population control in particular – proved more effective in reducing violence.309 If this is the case, then Western governments are to some extent back to the original problem which Nye’s theory of smart power is intended to solve: how can a government counter political violence effectively without relying solely or excessively on hard power? By investigating both the

Malayan Emergency and the Surge in Iraq, it appears that the most effective method for defeating an insurgency is to implement severe population control measures which forcibly separate different ethnic communities, impose significant constraints on liberty, and involve intensive surveillance of civilian populations. In this respect, the

US military may have found an effective strategy for countering insurgencies, but not one that strikes an appropriate balance between hard and soft power and mitigates the dangers of coercion.

Lastly, Nye suggests that governments are capable of developing a smart power strategy by reducing their reliance on hard power. In Iraq, Petraeus, Kilcullen and other ‘warrior scholars’ certainly deserve some credit for effecting such a change.

Their efforts helped to develop an institutional culture in which the US military is now willing to invest significant effort and resources in soft power. The same could certainly not be said about the invasion in 2003 or initial responses to the insurgency

309 With regard to Iraq, see Agnew et al, above n 283; Dale, above n 95, 107; Biddle, Friedman and

Shapiro, above n 276, 36. With regard to Malaya, see Hack, above n 293, 384-385; Newsinger, above n

293, 51, 54; Short, above n 293, 392, 502; Comber, above n 293, 8, 81, 149, 285.

407 between 2004 and 2006. Even so, the evident complexities surrounding the use of soft power in Iraq make it difficult to stand by the three components of smart power thinking as shorthand rules for countering insurgencies. Whether or not governments should maintain these three shorthand rules in the face of significant evidence to the contrary is the subject of the concluding chapter.

408 6

CONCLUSION: RETHINKING SMART POWER

Introduction

We would all like to think that humankind is getting smarter and wiser and that our

past blunders won’t be repeated … Yet this sadly turns out to be no universal law.1

- Stephen M Walt, Foreign Policy Journal (2011)

Joseph Nye’s theory of smart power suggests that governments can best achieve their

policy objectives by combining hard power and soft power. Nye defines hard power

as the ability to influence behaviour through coercion, threats or inducements.2 He defines soft power as the ability to ‘co-opt’ others by influencing their initial desires and preferences.3 In other words, soft power involves ‘getting others to want the

1 Stephen M Walt, ‘Where Do Bad Ideas Come From and Why Don’t They Go Away?’ (2011) 184

Foreign Policy 49, 49.

2 Joseph S Nye Jr, Soft Power: The Means to Success in World Politics (Public Affairs, 2004) 5; Joseph

S Nye Jr, Bound to Lead: The Changing Nature of American Power (Basic Books, 1990) 31.

3 See Nye, Soft Power, above n 2, x, 6-8; Nye, Bound to Lead, above n 2, 31-32.

409 outcomes you want’.4 As identified in Chapter One, Nye’s idea that hard power and

soft power should be combined depends on three key ideas or premises: (1) that hard

power and soft power are distinct; (2) that soft power is morally preferable to hard

power, and (3) that hard power and soft power are complementary. The thesis has

referred collectively to these three ideas as ‘smart power thinking’.

In recent years, a smart power approach has developed in both counter-

terrorism and counter-insurgency as a preferable strategy to one that relies mainly on

coercion. Both in response to the 9/11 attacks and in the early stages of the Iraq War,

Western governments relied on coercive strategies that undermined human rights and

created a significant backlash of resentment at home and abroad. As Nye and many

others have noted,5 these knee-jerk responses to the threat of terrorism ignored the

potential benefits that soft power could provide in countering political violence.

More than a decade on from 9/11, soft power is now widely recognised as an

important supplement to hard power. Western governments have learnt from their

4 Ibid 5.

5 See ibid xi-xii, 127-134; Giulio M Gallarotti, Cosmopolitan Power in International Relations: A

Synthesis of Realism, Neoliberalism, and Constructivism (Cambridge University Press, 2010) 180-201;

David Cole and Jules Lobel, Less Safe, Less Free: Why America is Losing the War on Terror (New

Press, 2007) 13-14; Sharon Pickering, Jude McCulloch and David Wright-Neville, Counter-Terrorism

Policing: Community, Cohesion and Security (Springer, 2008) 8; Sharon Pickering, Jude McCulloch and David Wright-Neville, ‘Counter-Terrorism Policing: Towards Social Cohesion’ (2008) 50 (1/2)

Crime, Law and Social Change 91, 91; Jude McCulloch and Sharon Pickering, ‘Pre-Crime and

Counter-Terrorism: Imagining Future Crime in the “War on Terror” (2009) 49(5) 628, 640; Stephen

Holmes, The Matador’s Cape: America’s Reckless Response to Terror (Cambridge University Press,

2007) 25, 327-332.

410 past mistakes and supplemented their existing coercive strategies with community-

based responses. In doing so they have arrived at a strategy for countering political

violence that epitomises Nye’s theory of smart power. In counter-terrorism, a smart

power approach is reflected in the combination of counter-terrorism laws and

community-based programs for countering violent extremism (CVE programs). In

counter-insurgency, a smart power approach is reflected in the combination of armed

force and civil reconstruction.

More importantly, smart power responses to political violence reflect the three

core components of smart power thinking. In domestic counter-terrorism, counter-

terrorism laws and CVE programs are viewed as two distinct methods for preventing

terrorism, CVE programs are viewed as having the capacity to improve social

cohesion and reduce marginalisation, and both approaches are designed to work in

parallel. In counter-insurgency, armed force and civil reconstruction are viewed as

two distinct methods for defeating insurgencies, civil reconstruction is viewed as an

important moral counter-weight to armed force, and the two approaches are likewise

designed to work alongside each other in a two-pronged, smart power strategy.

In counter-insurgency, this smart power logic can be traced back to the

Malayan Emergency of 1948-60, in which Sir Gerald Templer implemented a strategy

for ‘winning the hearts and minds’ of the Malayan people. Primarily as a result of

Templer’s efforts, the classical counter-insurgency theorists wrote strategy on how

counter-insurgency warfare should be conducted. This classical approach to counter-

insurgency – as found in the works of Kitson, Thompson, and Galula – directly influenced the contemporary US approach in Iraq and Afghanistan.6 The US counter-

6 See Robert Thompson, Defeating Communist Insurgency: Experiences from Malaya and Vietnam

(Chatto & Windus, 1974); David Galula, Counterinsurgency Warfare: Theory and Practice (Praeger

411 insurgency field manual FM 3-24, which was written under the guidance of General

David Petraeus, acknowledges its debt to Malaya and the classical theorists.7

Smart power approaches to counter-terrorism and counter-insurgency reinforce Nye’s argument that supplementing hard power with soft power is the key to achieving policy objectives. The logic underlying smart power strategies is that they are sufficiently ‘hard’ to prevent political violence, whilst being sufficiently ‘soft’ to avoid generating resentment amongst the general population. Smart power strategies are ‘smart’ because they strike an appropriate balance between counter-productive coercion and ineffective pacifism. By implementing smart power strategies, governments can achieve their policy objectives effectively whilst avoiding the problems associated with strategies that rely mainly on coercion.

Or so it would seem. What is striking about smart power approaches to counter-terrorism and counter-insurgency is that they have frequently failed to mitigate the detrimental effects of coercion. In some cases, smart power strategies have simply aggravated the problems created by existing coercive measures. More importantly, smart power responses to political violence confirm a range of tensions, problems and complexities that are evident in Nye’s theory. Nye largely discounts these more complex issues in arguing that governments should implement his smart power model. By contrast, the case studies in this thesis have demonstrated that these

Security International, 1964, 2006 ed); Frank Kitson, Low Intensity Operations: Subversion,

Insurgency, Peace-Keeping (Faber & Faber, 1971)

7 US Army/Marine Corps, Counterinsurgency Field Manual: U.S. Army Field Manual No. 3-24 –

Marine Corps Warfighting Publication No. 3-33.5 (University of Chicago Press, 2007) (‘FM 3-24’) xxiv.

412 complexities are crucial to understanding how Western governments have countered

historical and contemporary threats to the state.

The purpose of this concluding chapter is to determine, in light of the preceding case studies, whether and how smart power thinking should be reconceived.

Nye suggests that it is valid and useful for governments to develop policy according his three shorthand rules, despite the evident complexities surrounding them. Is this the case? Are there indeed benefits to maintaining smart power thinking in the face of significant evidence to the contrary? Or are there dangers to ignoring these complexities when devising strategies for countering political violence? In other words, are these more complex issues conceptually significant, such that smart power needs rethinking?

The following sections consider these questions by exploring in greater depth the benefits, dangers and downsides of smart power thinking. Parts I-III address each component of smart power thinking in turn. Part IV concludes by offering seven lessons for devising smart power strategies. These lessons build on Nye’s theory by setting out how governments can address the shortcomings of smart power thinking.

I THE CONVERGENCE OF HARD POWER AND SOFT POWER

I have always been suspicious of dichotomies: friend or foe, truth or beauty, rich or

poor, dead or alive, sick or well, spend or save, win or lose, hearts or minds.8

8 Tom Healy, ‘As Much Power as a Word: Hard, Soft, and Smart Power’ (Speech delivered at the

Australian Fulbright Symposium, Canberra, 23 August 2013)

59107048178/as-much-power-as-a-word-hard-soft-and-smart-power>.

413 - Tom Healy, ‘As Much Power as a Word: Hard, Soft, and Smart Power’ (2013)

As set out in Chapter One, the first core idea underlying Nye’s theory is that hard

power and soft power describe two distinct methods for influencing behaviour.9 The case studies in the preceding chapters have demonstrated that these two approaches are more frequently intertwined and imbricated in Western efforts to counter political violence than they are discrete and different. In UK counter-terrorism, there is significant blurring of hard and soft power across the Pursue and Prevent strands of

CONTEST, between counter-terrorism and community integration, and within

individual law and policy measures.10 In Australian counter-terrorism, there is a

significantly clearer distinction between hard and soft power than in UK counter-

terrorism policy, although there is evidence of hard and soft power converging in

efforts to counter violent extremism in prisons and on the Internet.11

In Malaya, the convergence of hard and soft power could be seen in the New

Villages, where Templer combined benefits, inducements and punishments within the

mass resettlement camps.12 In Iraq, the convergence of hard and soft power could be

seen in the Provincial Reconstruction Teams (PRTs) and Human Terrain Teams

(HTTs), which merged civilian and military functions.13 It could also be seen in

Baghdad’s gated communities,14 which resembled the New Villages established by

9 See Chapter One, Part I(A).

10 See Chapter Two, Part III.

11 See Chapter Three, Part III.

12 Chapter Four, Part III.

13 Chapter Five, Part III.

14 Chapter Five, Part III. See especially Dave Kilcullen, ‘The Urban Tourniquet: “Gated Communities” in Baghdad’, Small Wars Journal Blog Post (27 April 2007)

414 Templer in Malaya, and in counter-radicalisation programs in Iraqi prisons.15 The frequent convergence of hard and soft power in contemporary practice suggests that

Western governments have developed hybrid responses to political violence which fuse hard and soft power, rather than distinct soft power responses.

These examples provide significant evidence contrary to the idea that hard and soft power should be conceived as two distinct methods for influencing behaviour.

Equally, however, it cannot be denied that there are some obvious distinctions which accord with Nye’s theory. A criminal law is clearly different to a community discussion group, and combat operations are clearly different to rebuilding a school or a hospital. What, then, can be made of this? Have Western governments simply failed to implement Nye’s theory accurately, or is it conceptually significant that hard power and soft power frequently converge in practice? Do examples of hybrid responses to political violence suggest that this element of Nye’s theory should be revised, or are there still benefits to thinking of hard and soft power as conceptually distinct?

There is one clear benefit to thinking about soft power as distinct from hard power: it encourages states to look beyond a narrowly coercive approach and to incorporate softer alternatives into their existing policy efforts. In the years immediately following 9/11, Western governments focused too narrowly on hard

urban-tourniquet-gated-communities-in-baghdad>; Karin Brulliard, ‘“Gated communities” for the war- ravaged’, Washington Post, 23 April 2007; Anthony H Cordesman, ‘Securing Baghdad with Gated

Communities’ (Center for Strategic and International Studies, 20 April 2007)

15 Chapter Five, Part III. See especially Catherine Dale, Operation Iraqi Freedom: Strategies,

Approaches, Results, and Issues for Congress (Congressional Research Report, 7-5700, April 2009)

125.

415 power and did not pay sufficient attention to the possibility that soft power could help

to reduce political violence in the long-term. It is widely acknowledged that coercive legal responses to 9/11 and the invasion of Iraq were counter-productive to the extent

that they undermined human rights and generated substantial anti-Western

resentment.16 Thinking about soft power as distinct from hard power encourages a more restrained approach in which states are aware of the dangers of coercion and look for alternatives to mitigate those dangers. This is the core contribution of Nye’s theory.

More than a decade on from 9/11, now that soft power is recognised as an important supplement to hard power, this kind of thinking needs to be supplemented with an awareness of the problems that can be created when hard and soft power converge. As the preceding case studies demonstrate, the reality of developing soft power responses to political violence is significantly more complex, because hard and soft power are rarely so separate as this dichotomous thinking suggests. In particular, the many recognised problems with the UK’s Prevent strategy show that these complexities cannot be ignored in favour of a ‘shorthand’ distinction.17 The significant controversy over the use of anthropologists to help plan military operations in Iraq is another key example.18 Where hard and soft power converge, efforts to

16 See Nye, Soft Power, above n 2, xi-xii, 127-134; Gallarotti, above n 6, 180-201; Cole and Lobel, above n 6, 13-14; Pickering, McCulloch and Wright-Neville, Counter-Terrorism Policing, above n 6,

8; Sharon Pickering, Jude McCulloch and David Wright-Neville, ‘Counter-Terrorism Policing’, above n 6, 91; McCulloch and Pickering, above n 6, 640; Holmes, above n 6, 25, 327-322.

17 Nye, Soft Power, above n 2, 8. See Chapter Two, Part III.

18 See Roberto J Gonzalez, American Counterinsurgency: Human Science and the Human Terrain

(Prickly Paradigm Press, 2009); John D Kelly et al (eds), Anthropology and Global Counterinsurgency

(University of Chicago Press, 2010); George R Lucas, ‘The Morality of “Military Anthropology”

416 counter political violence are frequently viewed with suspicion and resentment. This

is because communities are unclear as to whether the government is trying to help

them or spy on them for the purposes of hard power, and also because non-coercive

pursuits (such as academic research) are put to coercive ends for which they were not

originally intended. Recognising the availability of soft power is an important first

step in creating smart power strategies; the next and equally important step is to

identify and resolve the problems created when hard and soft power converge.

There are three specific dangers with maintaining dichotomous thinking about hard and soft power in the face of recurring examples to the contrary. The first is that ignoring complexities in the relationship between hard and soft power is to ignore important ways in which the success of smart power strategies can be undermined. If dichotomous thinking about hard and soft power persists, then governments may overlook instances of where these two approaches have converged, thereby overlooking potential reasons why their smart power strategies are failing to prevent political violence effectively.

The second danger is that dichotomous thinking about hard and soft power may cause governments to ignore other important strategies for preventing and mitigating political violence. As explained in Chapter Two, for example, the Protect and Prepare strands of the UK’s CONTEST strategy cannot be neatly described as either hard or soft power because they are concerned with situational crime prevention measures (such as designing government buildings so that they are capable

(2008) 7(3) Journal of Military Ethics 165; Dena Plemmons and Robert Albro, ‘Practicing Ethics and

Ethical Practice: The Case of Anthropologists and Military Humanitarians (2012) 3(2) Humanity 179.

See discussion in Chapter Five, Part III.

417 of resisting terrorist attacks) and emergency response procedures.19 Defensive and procedural measures such as these do not impact on individuals in the same direct way as hard and soft power strategies. As such, they can help to prevent and mitigate the effects of political violence without contributing to the problems of either hard or soft power. Cole and Lobel have made a similar point in critiquing the Bush administration’s responses to 9/11:

There are many low-risk, noncoercive, or mildly coercive initiatives that can make us

safer, without triggering the substantial costs associated with the harshly coercive

features of the Bush administration’s preventive paradigm. While a counterterrorism

strategy should not rule out coercion, it should generally prefer noncoercive measures

to high-cost, risky, and harshly coercive initiatives. The recommendations of the

bipartisan 9-11 Commission are largely of this type: safeguarding nuclear material so

that it does not fall into the hands of terrorists; protecting dangerous targets such as

chemical plants; improving information sharing between law enforcement and

intelligence agencies; ensuring that first responders are adequately trained and

equipped in order to reduce the damage from the next terrorist attack; and improving

screening at airports, borders, and shipping ports.20

Cole and Lobel also strongly support the idea that Western governments should develop soft power strategies for developing relationships with Muslim communities.21 In this respect, they fall into the same trap as Nye of assuming that

19 Home Office, CONTEST: The United Kingdom’s Strategy for Countering Terrorism (TSO, July

2011, Cm 8123) 78-102. See Chapter Two, Pt III(D).

20 Cole and Lobel, above n 6, 209.

21 Ibid 14.

418 soft power is inherently preferable to coercion. However, the above quotation

demonstrates that governments can draw on a range of defensive and procedural

strategies for countering terrorism which cannot be neatly categorised as either hard

or soft power. For example, a government could specify additional safety and security

procedures that employees of scientific laboratories must follow when handling

biological material. To some extent, this might require coercive sanctions for

employees who fail to handle the material appropriately,22 but these will not impact

on communities to the same degree as stop-and-search powers or criminal offences,23

or indeed soft power responses to terrorism like the Channel intervention program.24

Defensive and procedural measures do not completely obviate the need for hard and

soft power, but a greater focus on these kinds of strategies could help to shift the

direction of counter-terrorism policy towards less problematic approaches.

The third danger with dichotomous thinking about hard and soft power is that

it reinforces the idea that hard power is ‘bad’ and soft power is ‘good’. If hard power

and soft power are conceptually distinct, then it makes sense to consider that they

might also be morally distinct. However, as the case studies in this thesis have

demonstrated, there is little evidence supporting either of these claims in Western

efforts to counter political violence. If soft power is instead conceived as inherently

intertwined with hard power, or as an extension or continuation of hard power, then it

22 Such offences exist, for example, in the Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, ss 43, 47, 67, 79-80.

23 See especially Christina Pantazis and Simon Pemberton, ‘From the “Old” to the “New” Suspect

Community’ (2009) 49(5) British Journal of Criminology 646.

24 Home Office, Channel: Protecting Vulnerable People from Being Drawn Into Terrorism – A Guide

for Local Partnerships (Home Office, 2012).

419 makes sense to consider that soft power might reproduce some of the problems

associated with hard power. This kind of thinking would more accurately reflect the

reality of counter-terrorism and counter-insurgency. The dangers of thinking about

soft power as morally preferable to hard power are explored in more detail below.

In contrast to simplistic, dichotomous thinking, more complex and nuanced

thinking about hard and soft power can mitigate the unique problems posed by smart

power strategies. The benefits of this can be seen in the Coalition government’s

approach to the Prevent strategy in the UK. While not perfect, the Coalition government’s Prevent strategy is certainly an improvement on Labour’s 2008 strategy, which attracted significant criticism on a number of grounds.25 Key among

these was the fact that the 2008 Prevent strategy significantly blurred the lines

between counter-terrorism and community integration.26 The Coalition government

improved the Prevent strategy in part by recognising that there was significant

overlap between coercion and community integration, and by attempting to draw a

clearer line between those two approaches.27 The lines between the two approaches are still not perfectly clear, but the Coalition government has created a more coherent and less problematic strategy to the extent that it has separated hard and soft power.

This is supported by the Australian experience, in which it seems that a clearer

25 See especially House of Commons Communities and Local Government Committee, Parliament of

United Kingdom, Preventing Violent Extremism: Sixth Report of Session 2009-10 (HC 65, 30 March

2010) (‘CLG Committee’).

26 See CLG Committee, above n 25, 56-62.

27 See Home Office, Prevent Strategy (TSO, June 2011, Cm 8092) 30 (‘Prevent Strategy 2011’).

420 separation between hard and soft power has caused Australia’s soft power responses

to terrorism to be received more positively by communities.28

This suggests that governments can develop more effective smart power strategies by identifying instances in which hard and soft power have converged, and by devising ways to ensure a clearer separation between them. In other words, governments should view the first component of smart power thinking as a policy goal they should aim to achieve, rather than a conceptual distinction that they can take for granted. One method for achieving this would be to ensure that employees of public institutions perform functions that are consistent with common understandings of those institutions. Public officials typically associated with hard power (namely, police officers and soldiers) should perform hard power tasks, and employees of institutions typically associated with soft power (such as diplomats, aid workers, and academics) should perform soft power tasks. Significant confusion and resentment is created when these roles and identities are interchanged, such as when police officers aim to improve community cohesion,29 or when anthropologists carry weapons and

collect military intelligence.30 In practice, this would mean that soft power tasks

currently performed by the police and military are outsourced to other institutions that

are typically associated with soft power. This might be another government

28 See Australian Human Rights Commission, Australian Multicultural Foundation and ARC Centre of

Excellence in Policing and Security, Building Trust: Working with Muslim Communities in Australia –

A Review of the Community Policing Partnership Project (Australian Human Rights Commission and

Australian Multicultural Foundation, December 2010) 19 (‘CPPP’).

29 See CLG Committee, above n 25, 52.

30 See especially Gonzalez, above n 18.

421 department which is accustomed to working with communities,31 or it might be a non- governmental organisation (NGO), such as a charity or aid organisation, which is accustomed to conducting relief and reconstruction work overseas. This would be consistent with some of the lessons learned from the US experience in Iraq, as

‘civilian and military official generally agree that governance and economics-related tasks might in theory be better performed by civilian experts’.32

For advocates of community policing and counter-insurgency, this would likely deny the police and military an important aspect of their work. This is why the

Coalition government in the UK has been cautious about separating counter-terrorism and community integration completely.33 The logic is that, by involving the police

and the military in soft power tasks, this improves their legitimacy; by improving

their legitimacy, those institutions can reduce political violence more effectively, such

as by encouraging community members to volunteer information about suspicious

behaviour.34 But if the involvement of police officers and soldiers in soft power tasks

is undermining legitimacy and effectiveness in any case (such as by creating

damaging perceptions that they are using soft power to spy on populations for the

purposes of hard power) then the reasons for them using soft power in the first place

31 For example, the Department of Communities and Local Government in the United Kingdom is now

responsible for coordinating the community integration aspects of Prevent work: see Prevent Strategy

2011, above n 27, 30. See discussion in Chapter Two, Part III.

32 Catherine Dale, Operation Iraqi Freedom: Strategies, Approaches, Results, and Issues for Congress

(Congressional Research Service Report for Congress, 28 March 2008) 99.

33 See Chapter Two, Part III(B).

34 See, eg, Sharon Pickering et al, Counter-Terrorism Policing and Culturally Diverse Communities

(Monash University and Victoria Police, 2007) 10, 29, 34.

422 are severely compromised.35 In such cases, the police and military would maintain a higher degree of legitimacy, and therefore presumably a higher degree of effectiveness, if they avoided soft power tasks and focused on using their coercive powers lawfully and proportionately.

The appropriate test should be whether the involvement of the police or military in soft power tasks is undermining the legitimacy of those institutions and thereby compromising the effectiveness of their efforts to reduce political violence, and if so, then it would be preferable to outsource those tasks to somebody else. As raised in Chapter Three, it may be possible for police to be involved in soft power tasks through ‘proxies’ such as Muslim youth workers.36 These kinds of solutions can

improve the legitimacy of police by creating an association with soft power, whilst

creating less suspicion about the reasons why police are taking on soft power tasks.

In aiming to separate hard and soft power, governments should ensure that

they do not thereby increase the overall coercive effect of the strategy. Part of

Templer’s strategy in Malaya was to posit hard and soft power as two possible sets of

consequences which members of the New Villages could bring on themselves by

virtue of how they chose to behave.37 Although hard and soft power were difficult to separate neatly in that context, the coercive force of Templer’s strategy was maximised by the difference between hard and soft power at either end of a complex spectrum. If governments are to separate hard and soft power clearly, manipulating populations in this way should not be their aim. There should be as little a connection

35 See, eg, CLG Committee, above n 25, 11-18.

36 See Chapter Three, Part III.

37 See Karl Hack, ‘Everyone Lived in Fear: Malaya and the British Way of Counter-Insurgency’ (2012)

23(4/5) Small Wars and Insurgencies 671, 691. See discussion in Chapter Four, Part III.

423 between hard power and soft power as possible, such that individuals are not induced

into behaving in a particular way to avoid punishment. In this respect, positing hard

and soft power as two elements of a national counter-terrorism strategy is reminiscent

of Templer’s logic: if a person behaves, they will be subjected to non-punitive

measures, but if they cross the line into criminality, they will feel the full force of the

counter-terrorism laws. This can be seen in the UK’s Prevent strategy, which

recommends that individuals should be referred for criminal investigation if they

become involved in suspicious behaviour during the course of Prevent work.38

It is worth reiterating that Nye is aware of the complexities surrounding the

distinction between hard and soft power. He notes that they are not entirely discrete

concepts, that they occupy two ends of a spectrum, and that they can often be difficult

to distinguish in practice.39 The above analysis is not intended to suggest that Nye is

‘wrong’ in drawing a distinction between hard and soft power. As noted, there are obvious examples of distinctions of where hard and soft power are conceptually distinct, such as criminal laws and community discussion groups.

However, Nye is far too cavalier in dismissing these apparent complexities in favour of a simple ‘shorthand’ dichotomy.40 He recommends that states develop soft

power strategies, while assuming that these will for the most part be distinct from any

existing hard power measures. By contrast, the case studies in this thesis have shown

why a more complex and nuanced conception of the difference between hard and soft

power provides the more likely path to an effective smart power strategy.

38 Prevent Strategy 2011, above n 27, 32.

39 Nye, Soft Power, above n 2, 7.

40 Ibid 8.

424 II THE DANGERS OF SOFT POWER

The enthusiasm so many of my generation have felt for the institutions, norms, and

professional practices of international humanitarianism must acknowledge their dark

sides and limitations. It is not that our good works have sometimes been overcome by

dark forces – it is that our good work, however principled, however savvy, has itself

also had dark sides, has contributed to the very evils we set out to redress.41

- David Kennedy, The Dark Sides of Virtue (2004)

The second component of smart power thinking, as set out in Chapter One, is that soft

power is morally preferable to hard power. Nye believes this on the grounds that soft

power allows individuals greater autonomy than hard power. He argues that soft

power preserves for individuals a greater capacity to determine their own ‘views and

choices’.42 He maintains this despite also recognising that Hitler, Stalin, Mao and bin

Laden used soft power for immoral purposes, including genocide and terrorism.43

Soft power certainly has some moral benefits compared to hard power. Soft power is non-lethal, it is formally non-punitive, it is formally non-coercive, and it does not impact on freedom to the same degree. There are, therefore, some obvious benefits to thinking about soft power as morally preferable to hard power and using this as a guide for policymaking. Instead of focusing narrowly on coercive approaches

41 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton

University Press, 2005) 341-342.

42 Joseph S Nye Jr, The Powers to Lead (Oxford University Press, 2008) 44.

43 Nye, Soft Power, above n 2, 95; Nye, The Powers to Lead, above n 42, 43, 141; Joseph S Nye Jr, The

Future of Power (Public Affairs, 2011) 23, 81.

425 to countering political violence, governments can also develop soft power responses that do not have the same direct and forceful impact on individuals.

However, if governments and policymakers are to conceive of soft power as morally preferable to hard power, then they need to be clear about why and in which ways this is so. Soft power may be preferable to hard power on the grounds noted above, but the case studies in this thesis have demonstrated that this reasoning does not stand with regard to questions about autonomy. Indeed, the preceding case studies have demonstrated the myriad ways in which soft power can have a significant negative impact on autonomy. Soft power reduces autonomy by reinforcing prejudiced stereotypes of a suspect (currently Muslim) ‘other’, by constraining political and religious choice, by intervening before individuals have had an opportunity to explore controversial ideas, by depicting foreign populations as objects in need of external intervention, and by imposing unwanted choices on communities.

This becomes more problematic when soft power responses to terrorism are framed through a therapeutic discourse (such as helping ‘vulnerable’ individuals and building

‘resilient’ communities) as the negative effects of soft power are cleverly obscured.44

Indeed, soft power frequently constrains political and religious choice in a more direct and explicit way than hard power. The UK’s speech offences, for example, are designed to punish and incapacitate individuals for expressing certain ideas.45 This is also highly problematic in terms of the limits that should be placed on

44 See, eg, Home Office and Department for Communities and Local Government, The Prevent

Strategy: A Guide for Local Partners in England – Stopping People Becoming or Supporting Terrorists and Violent Extremists (Home Office and Department for Communities and Local Government, May

2008) 6 (‘Prevent Strategy 2008’) 16, 27.

45 Terrorism Act 2006 (UK) c 11, ss 1-2.

426 the criminal law with regard to free speech, and the offences may certainly have a

wider social impact on the views that individuals choose to adopt, but at least it can be

said that those laws do not explicitly require anybody to change their ideas.

By contrast, soft power responses to terrorism in the Prevent strategy are

explicitly designed to influence individuals’ views on politics and religion. It is only

through counter-radicalisation programs in Prevent that prisoners serving sentences

for terrorism offences would be required to show that their extremist views have

become more ‘moderate’; otherwise, they could choose to maintain their extremist

views for the duration of their punishment. More broadly, the Prevent strategy is

designed to reshape the political and religious views of vulnerable Muslims in British

society, often from a very young age. As Nye points out, soft power may not ‘break

your bones’,46 but in this respect it can impact on individuals in equally fundamental,

and perhaps longer-lasting, ways.

A key danger with soft power responses to political violence is that they will

reinforce prejudiced stereotypes of Muslim communities as inherently suspicious,

which may contribute to the very problems that Western governments are trying to

solve. The clearest evidence of this can be in the 2008 Prevent strategy, which left

British Muslim communities feeling ‘unfairly targeted and branded as potential

terrorists’.47 More broadly, contemporary counter-insurgency operations are

frequently viewed as a ‘civilising mission’ which reinforces stereotypes of the third

world as more primitive and violent than the West.48 Such approaches impact on

46 Nye, The Powers to Lead, above n 41, 142.

47 CLG Committee, above n 25, 11.

48 See generally Colleen Bell, ‘Hybrid Warfare and Its Metaphors’ (2012) 3(2) Humanity 225; Moritz

Feichtinger, Stephan Malinowski and Chase Richards, ‘Transformative Invasions: Western Post-9/11

427 autonomy by sidelining genuine community consultation in favour of external

intervention, and by contributing to a sense of alienation and discrimination which

affects the capacity of Muslim communities to participate fully in the public sphere.

This is not to deny that hard power can also have a significant impact on

autonomy. Counter-terrorism laws in the UK and Australia have significantly reduced

autonomy by creating ‘suspect communities’, by constraining political and religious

choice, and by denying individuals a window of moral opportunity in which they are

free to choose not to become involved in terrorism.49 Rather, the case studies in this

thesis have demonstrated that both hard and soft power can significantly impact on

autonomy, and that is therefore erroneous to conceive of soft power as morally

preferable to hard power on this ground. In the contemporary context, it is more

accurate to say that soft power responses to political violence have frequently

exacerbated the impact that hard power responses have had on autonomy since 9/11.

To some extent, the impact that soft power has had on autonomy is the result

of poor policy choices. In UK counter-terrorism, the Labour governments chose to

distribute funds for Prevent projects according to how many Muslims resided in each community – a mistake that should have been avoided.50 In contemporary counter-

insurgency operations, one relatively simple solution would be to avoid disease-

related metaphors which frame foreign cultures as objects in need of external

Counterinsurgency and the Lessons of Colonialism’ (2012) 3(1) Humanity 35; Douglas Porch, ‘The

Dangerous Myths and Dubious Promise of COIN’ (2011) 22(2) Small Wars & Insurgencies 239. See

discussion in Chapter Five, Part IV(C).

49 See Chapter Two, Part IV; Chapter Three, IV.

50 See CLG Committee, above n 25, 50-51.

428 intervention.51 However, as Kennedy notes in the above quotation,52 not all of the

problems with soft power, humanitarian-style interventions can be put down to

mistakes, lack of foresight or bad intentions. When things go wrong with soft power,

it is ‘all too easy to assume that … it must be the result of the policy-making

apparatus having been distorted, captured, or misused’.53 But there must be a point at

which recurring examples of problems with soft power are conceptually significant,

such that current thinking about soft power should be revised. Indeed, as Nye notes,

the fundamental nature of soft power is that it is designed to ‘co-opt’ others by

altering their desires and preferences.54 When this is recognised, it is easy to conceive

of soft power as conflicting with the idea of autonomy. Soft power is inherently at

odds with autonomy because it is designed to influence the desires and preferences of

others, such that individuals are making choices that are not authentically their own.55

The problems that soft power poses for autonomy might be sourced in the

colonial roots of soft power. Many source the problems with hard power in brutal

51 See especially Bell, above n 48. See discussion in Chapter Five, Part IV(B).

52 Kennedy, above n 41, 341-342.

53 Ibid 121.

54 Nye, Soft Power, above n 2, 2, 7; Nye, Bound to Lead, above n 2, 31; Nye, The Future of Power, above n 43, 11, 13.

55 As explained in Chapter One, commentators relate autonomy to the idea that a person is ‘“truly or

“deeply” herself in acting’: Marina A L Oshana, ‘Autonomy and Self-Identity’, in John Christman and

Joel Anderson (eds), Autonomy and the Challenges to Liberalism: New Essays (Cambridge University

Press, 2005) 77, 77. See also Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge

University Press, 1988) 108.

429 colonial practices,56 and yet Templer’s efforts to win hearts and minds in Malaya

demonstrate that soft power also has colonial origins. Soft power was a key

mechanism by which the colonial administrations attempted to control foreign

populations and shape them in accordance with the strategic and economic interests of

the West. This suggests that soft power should be more accurately conceived as an

extension or continuation of hard power – or, to put it in Gramscian terms, that

coercion should be considered intrinsic to consent.57 In this respect, it is important to

remember that soft power is equally a form of power that influences the behaviour of

individuals; it is not merely a gift or benefit that is distributed to communities. To

Kilcullen, soft power is designed to create a ‘permissible operating environment’.58

On this instrumental understanding, it makes sense to think that soft power would

reproduce similar problems to hard power, including those with respect to autonomy.

How seriously should governments take these ideas that soft power has

colonial origins, relies on dehumanising metaphors, and reinforces prejudiced

stereotypes of foreign cultures? To some practitioners, these critiques (which are

loosely based in critical theory) would appear overly academic and not sufficiently

substantive to warrant a change of approach in the field. For a start, it would be

untenable for the so-called ‘warrior scholars’ of counter-insurgency to maintain such

56 See, eg, McCulloch and Pickering, above n 6, 636-7; Jenny Hocking, Terror Laws: ASIO, Counter-

Terrorism and the Threat to Democracy (UNSW Press, 2004) 212-230.

57 Geraldo Zahran and Leonardo Ramos, ‘From Hegemony to Soft Power: Implications of a Conceptual

Change’ in Inderjeet Parmar and Michael Cox (eds), Soft Power and US Foreign Policy: Theoretical,

Historical and Contemporary Perspectives (Routledge, 2010) 12, 21-24.

58 David Kilcullen, The Accidental Guerrilla: Fighting Small Wars in the Midst of a Big One (Oxford

University Press, 2009) 14.

430 a position when they are so heavily invested in the theory of warfare.59 More importantly, to ignore these theoretical critiques is to ignore important ways in which the success of soft power strategies can be undermined. As explained in Chapter Two, substantial suspicion and resentment surrounded soft power responses to terrorism in the UK’s Prevent strategy because of the ways in which the strategy framed Muslims as inherently suspicious.60 This was not merely a theoretical concern, as it directly undermined the success of Prevent work in communities.

In addition, choices about language and the framing of soft power strategies can shape the responses and behaviour of communities. Kennedy argues that

‘[i]nternational humanitarians are … prone to underestimate the constitutive effect of their own policy work on the world they confront’.61 He gives the example of ‘rogue

states’, who ‘converge in tactic and technique’ to a greater extent because they have

been isolated by the United States and its allies as a threat to the international order.62

Words like terrorist and insurgent describe ‘roles in the world, to be sure, but they are

also policy categories, and it is easy to forget that the world is also looking at the

policy makers, mapping their own possibilities and strategies’.63 In other words, by

reinforcing prejudiced stereotypes of Muslims as inherently suspect and dangerous,

soft power responses to political violence might make this come true: Muslim

communities may become more dangerous because they are resentful at the way they

59 See Gonzalez, above n 18, 8-9; Jeffrey H Michaels and Matthew Ford, ‘Bandwagonistas: Rhetorical

Re-Description, Strategic Choice and the Politics of Counter-Insurgency’ (2011) 22(2) Small Wars &

Insurgencies 352, 354.

60 See Chapter Two, Part IV(A).

61 Kennedy, above n 41, 132.

62 Ibid.

63 Ibid. See also ibid 21.

431 are framed in Western policy discourse. Simply changing the language surrounding soft power responses to political violence, without also making broader structural changes in approach, will not necessarily solve this problem. But changing the language of soft power responses would provide an important first step.

These problems surrounding soft power and autonomy do not deny that soft power is capable of preserving and even expanding autonomy. As the Australian experience of counter-terrorism shows, soft power responses to political violence can be consistent with autonomy if they increase opportunities for expressing political and religious ideas, if they educate individuals about their rights and obligations, and if governments avoid heavy police oversight and stigmatising interventions for ‘at risk’ individuals.64 This demonstrates that it is difficult to apply any general rules about the benefits or dangers of soft power. Soft power responses to political violence will prove Nye’s theory true as often as they prove it false. This is confirmed by

Templer’s efforts in Malaya, in which he both expanded free choice by encouraging local elections, and constrained free choice by encouraging insurgent surrenders.65

More research could be undertaken into the distinction between these two types of soft power. What factors must be present for soft power to preserve autonomy, and what factors will lead soft power to undermine autonomy? This could raise some incredibly difficult issues. At what point will education cross the line into constraining free choice? At what point do extremist ideas pose a sufficient danger that states will be justified in constraining the free choice of political and religious views? As a general principle, soft power will undermine autonomy if it is designed directly to assist hard power by influencing individuals to behave in ways that are

64 See Chapter Three, Part IV.

65 See Chapter Four, Part IV.

432 favourable to government. Soft power will preserve autonomy if it is designed to mitigate the effects of hard power by providing additional or alternative outlets for the expression of political and religious ideas. Soft power will also preserve autonomy if governments consult directly and meaningfully with communities, rather than imposing choices externally upon them. As the Special Inspector-General for Iraq

Reconstruction (SIGIR) reported, reconstruction efforts ‘should be geared to indigenous priorities and needs’.66 As explained in Chapter Five, Kilcullen has now recommended a ‘co-design’ approach to counter-insurgency.67

The key problem to date is that far too much attention has been paid to the benefits of soft power,68 and little if any attention has been paid to its dangers. This is so despite recurring evidence that soft power poses some of the most pressing issues in the contemporary practice of counter-terrorism and counter-insurgency. If governments are to develop soft power responses to political violence that are

66 Special Inspector General for Iraq Reconstruction (SIGIR), Hard Lessons: The Iraq Reconstruction

Experience (SIGIR, February 2009) 332 (‘Hard Lessons’).

67 Kilcullen, Out of the Mountains: The Coming Age of the Urban Guerrilla (Oxford University Press,

2013) 255-259.

68 See especially Nye, Soft Power, above n 2; Nye, The Future of Power, above n 43; Hillary Clinton,

‘The art of smart power’, New Statesman (London), 18 July 2012; Robert Gates, ‘Landon Lecture’

(Speech delivered at University of Kansas, Manhattan Campus, 26 November 2007)

; University of Virginia School of

Law, ‘US State Department’s Legal Adviser Calls for “Smart-Power” Approach to Transnational

Conflicts’, 15 February 2012 . With regard to domestic counter-terrorism, though not relying explicitly on the language of smart power, see

Cole and Lobel, above n 6, 14; McCulloch and Pickering, above n 6, 640; Pickering, McCulloch and

Wright-Neville, Counter-Terrorism Policing, above n 6, 8; Pickering, McCulloch and Wright-Neville,

‘Counter-Terrorism Policing’ above n 6, 91.

433 consistent with autonomy, then the dangers of soft power require focused attention.

The dangers of soft power cannot be glossed over in favour of a simple rule that soft

power is preferable to hard power because ‘words don’t really hurt you’.69 Put another way, governments cannot presume that the soft power responses they implement will be compatible with or increase autonomy merely because they are ‘soft’. Developing soft power responses is an important first step in developing smart power strategies; the next and equally important step is to examine whether those soft power responses are consistent with autonomy, and if not, to devise improvements so that they expand rather than constrain free choice. Only then will soft power responses to political violence necessarily mitigate the detrimental impacts that hard power has on autonomy. In other words, like the first component of smart power thinking, the second component of smart power thinking should be conceived as a policy goal that governments should aim to achieve – but it is not a conceptual rule that they can take for granted.

There are several more specific dangers associated with thinking about soft power as morally preferable to hard power. The first and most obvious danger is that governments will not afford soft power strategies the degree of critical scrutiny that they deserve. If governments assume that there is something inherently ‘good’ about soft power, they will use soft power without questioning whether it is having a detrimental impact on communities. The problems with this kind of thinking can be seen in Iraq, where reconstruction projects were largely imposed on communities.70

69 Nye, The Powers to Lead, above n 42, 142.

70 See Hard Lessons, above n 66, 332; Kilcullen, Out of the Mountains, above n 67, 11; Peter Van

Buren, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People

(New York: Metropolitan, 2011) 135-139.

434 There was little critical scrutiny as to whether those projects were giving communities

what they needed, or whether those projects were generating additional resentment.

A second danger is that governments may use soft power more often than they

need, even where this proves counter-productive in achieving the strategy’s overall

objectives. Kennedy makes this point with regard to humanitarian interventions:

It is always tempting to think some global humanitarian effort has got to be better

than none … We conclude too easily that international law, say, is a good thing and

that more of it addressed to refugee affairs, disarmament, or environmental protection

would be humanitarian. It is all too easy to forget that saying “I’m from the United

Nations and I’ve come to help you” may not sound promising at all.71

This can been seen with the Human Terrain Teams (HTTs) in Iraq. According to

Major Ben Connable, an intelligence officer in the US Marine Corps, the functions of

the HTTs could have been performed adequately by the Foreign Area Officers

(FAOs) and Civil Affairs (CA) officers who are usually deployed with combat troops

in foreign warzones.72 If the HTTs were not disbanded altogether, he argues, they could have played a less public role by helping to train military intelligence officers, without actually being deployed in the field.73 Given the significant controversy

71 Kennedy, The Dark Sides of Virtue, above n 41, 112. See also 23: ‘Thinking their interventions benign or neutral, they intervene more often than they otherwise might.’

72 Major Ben Connable, ‘All Our Eggs in a Broken Basket: How the Human Terrain System Is

Undermining Sustainable Military Cultural Competence’ (2009) 89(2) Military Review 57, 60-62.

73 Ibid 64.

435 surrounding the blurring of anthropology and military intelligence in the HTTs,74 this

provides an example of where the use of soft power may have been superfluous. The

assumption that the HTTs were doing something inherently good led to significant

investments in soft power which created more problems than they solved.

A third danger is that governments will substitute normative assumptions

about soft power for more complex choices as to the types of soft power that they will

implement. Kennedy makes this argument with regard to building the rule of law in

foreign countries, and his approach is significantly more nuanced than those set out in

FM 3-24 and recommended by Kilcullen.75 While improving rights and drafting

constitutions ‘may all be to the good’,76 Kennedy argues that this kind of superficial

thinking obscures more complex ‘distributional choices’ as to how different versions

of the rule of law might be implemented.77 Instead, governments should ‘strategize

about the choices which go into making one “rule of law” rather than another’.78 The

assumption that there is something inherently good about the rule of law ‘heightens

the sense … that the rule of law can be injected without political choice’.79 Equally, with regard to domestic counter-terrorism, it might be said that normative assumptions about soft power obscure more complex questions – such as which types

74 See Gonzalez, above n 18; Kelly et al (eds), above n 18; Lucas, above n 18; Plemmons and Albro, above n 18. See discussion in Chapter Five, Part III.

75 FM 3-24, above n 8, [1-131]; David Kilcullen, Counterinsurgency (Oxford University Press, 2010)

52-154, 157-159.

76 Kennedy, above n 41, 155.

77 Ibid.

78 Ibid 156.

79 Ibid 157. See also 119: ‘a default preference for some policy tools over others substitutes for more careful analysis’.

436 of soft power responses to terrorism should be developed, which are more effective

than others, and which are more consistent with autonomy and human rights.

A fourth danger is that normative assumptions about soft power might

legitimate problematic uses of hard power.80 A government may be able to excuse additional expansions in hard power by pointing to its significant investments in soft power. It may be the case that those soft power responses are in fact exacerbating the problems of hard power. If this possibility is not examined because of a widespread assumption that soft power is inherently preferable to hard power, then this kind of superficial thinking will serve to undermine rather than preserve individual rights.

A final danger is that governments may fail to identify important ways in which hard power might protect autonomy. As argued in Chapter Three, hard power can protect autonomy in ways that soft power cannot, because it can provide coercive remedies for acts of abuse and discrimination.81 If governments assume that hard power undermines autonomy and soft power upholds it, they may overlook the ways in which hard power might also mitigate the detrimental impact of existing strategies.

In contrast to Nye’s theory, soft power could be conceived as an extension or continuation of hard power which has the capacity to preserve autonomy but also a significant tendency to undermine autonomy. This would provide a theoretical foundation for developing smart power strategies which more accurately reflects current practice. It would also lead to greater critical scrutiny of existing soft power responses to political violence. The potential benefits of this approach can be seen in the improvements that the Coalition government made to the Labour governments’

80 See ibid 140. Kennedy argues that ‘[i]nternational humanitarians are notoriously inattentive to the ways in which the public law norms they espouse are used to legitimate the use of force’.

81 See Chapter Three, Part IV(D).

437 Prevent strategy in the UK. The revised Prevent strategy still has significant problems, but the Coalition government was able to shape a less problematic strategy by first identifying and then devising ways to mitigate the dangers of soft power.82

Nye recognises the potential for soft power to be used for immoral purposes

and to undermine autonomy, so this is not to suggest that he is entirely unaware of the

dangers of soft power, or that he is wrong in suggesting that soft power has some

moral benefits to hard power.83 However, in favouring a shorthand rule – essentially,

that ‘soft is better than hard’ – he provides a theoretical basis for policymaking which has intuitive appeal but is ultimately problematic and misleading. It is difficult to argue with the basic proposition that building schools and hospitals is morally preferable to killing insurgents, and yet on closer inspection this kind of thinking as a basis for policymaking is both superficial and fraught with dangers. By contrast, thinking about the dangers of soft power would lead to more carefully planned policies and grant choices to communities which are authentically their own.

III INTERACTION BETWEEN HARD POWER AND SOFT POWER

This section considers three questions surrounding the idea that hard power and soft power are complementary: whether hard power and soft power are compatible, whether combining hard power and soft power is effective, and whether it is possible for governments to develop smart power strategies by reducing their reliance on hard

82 For example, with regard to the problem of creating ‘suspect communities’, the Prevent Strategy now includes reference to other forms of terrorism including extreme right-wing terrorism: Prevent

Strategy 2011, above n 27, 14-15, 20-21.

83 Nye, Soft Power, above n 2, 95; Nye, The Powers to Lead, above n 42, 43, 141-143; Nye, The Future of Power, above n 43, 23, 81.

438 power. As with the two core ideas considered above, a closer examination of this third component of smart power thinking suggests that Nye’s theory is misleading and overly simplistic. Western governments would fare better in countering political violence if they relied on a more complex and nuanced view of the interaction and relationship between hard and soft power. They should also be less optimistic and more realistic about the likelihood of achieving balanced and effective smart power strategies.

A Tensions Between Hard Power and Soft Power

From this arises the following question: whether it is better to be loved than feared, or

the reverse. The answer is that one would like to be both the one and the other, but

because it is difficult to combine them, it is far better to be feared than loved if you

cannot be both.84

- Niccolò Machiavelli, The Prince (1531)

In order to weigh the benefits and dangers of thinking about hard and soft power as complementary, it is worth returning to Machiavelli’s views on whether it is preferable for governments to be loved or feared. As set out at the beginning of

Chapter One, Nye’s response to the above quotation was to say that Machiavelli recommended governments should be feared, whereas in contemporary policy it is far better if governments are both feared and loved.85 However, a closer reading shows that Machiavelli favoured being feared over being loved in circumstances where a

84 Niccolò Machiavelli, The Prince (George Bull trans, Penguin, first published 1531, 2004 ed) 71.

85 Nye, Soft Power, above n 2, 1.

439 government cannot be both ‘because it is difficult to combine them’.86 Indeed, in

describing the image of Chiron the Centaur,87 Machiavelli made a very similar point

to Nye in recommending that governments combine the two approaches that are

natural to beast and man. Machiavelli was not dismissing the importance of what Nye

subsequently referred to as soft power, but rather recommending that governments

aim to use soft power whilst being aware that there may be inherent tensions in using

both hard and soft power at the same time.

In recognising the potential benefits of combining hard and soft power but

also the inherent tension between these two approaches, Machiavelli describes the

relationship between hard and soft power far more accurately than Nye. The case

studies in this thesis have shown that there are significant tensions between hard and

soft power which are given insufficient attention in popular narratives surrounding

smart power strategies. With regard to the Surge in particular, examples of where hard

and soft power proved mutually beneficial (such as in clear-hold-build operations in

Tal Afar and Fallujah) receive significantly greater attention than examples of where

these two approaches conflicted, such as in the different goals and methods favoured

by the civilian and military members of the PRTs.88 In domestic counter-terrorism,

86 Machiavelli, above n 84, 71.

87 Ibid 74.

88 See FM 3-24, above n 8, 182-184; Daniel Green, ‘The Fallujah Awakening: A Case Study in

Counter-Insurgency’ (2010) 21(4) Small Wars & Insurgencies 591. Cf Dale, above n 32, 99; John K

Naland, Lessons From Embedded Provincial Reconstruction Teams in Iraq (United States Institute of

Peace, Special Report 290, October 2011) 8; Rusty Barber and Sam Parker, Evaluating Iraq’s

Provincial Reconstruction Teams While Drawdown Looms: A USIP Trip Report (United States

Institute of Peace, December 2008) 1; Peter D Feaver, ‘The Right to Be Right: Civil-Military Relations and the Iraq Surge Decision’ (2011) 35(4) International Security 87.

440 the Australian experience suggests that governments may indeed be legally or morally obligated to use hard power in ways that undermine soft power,89 although this idea is not given any weight in Nye’s theory. This is not surprising, as the idea that there are inherent and intractable tensions between hard and soft power would fundamentally undermine the notion of developing smart power strategies.

This is not to deny that hard and soft power can work together in parallel, but rather to suggest that their capacity to do so is frequently overstated. In the UK, there was only one prominent example of soft power responses aiding prosecution (where members of a mosque alerted the authorities about an individual they believed to be making homemade bombs) and it is not even clear that the Prevent strategy played a key role in that scenario.90 Two far more significant themes from the 2008 Prevent strategy were that the combination of hard and soft power created significant structural tensions across the UK’s CONTEST strategy, and that the use of broadly drafted counter-terrorism laws undermined the success of Prevent work in communities.91 This suggests that current thinking about the relationship between hard and soft power requires a fundamental reorientation.

The key benefit to thinking about hard and soft power as complementary, as with the other two limbs of smart power thinking, is that it encourages governments to supplement coercion with soft power strategies that are non-lethal, non-punitive, and do not impact on freedom to the same degree. In this respect, Nye’s theory made an important contribution to the area but is now somewhat outdated. As Nye would have hoped, Western governments are now acutely aware of the potential benefits of using

89 See Chapter Three, Part V(C).

90 See CLG Committee, above n 25, Ev 20, Ev 67.

91 See Chapter Two, Part V(A).

441 soft power to counter political violence. However, now that smart power strategies

have been developed, insufficient attention is paid to their limits, dangers and

downsides. Nye’s theory was a crucial first step in moving beyond coercive responses

to political violence after 9/11, but a more complex and nuanced approach that

addresses the dangers and downsides of smart power strategies is now required.

The key danger of thinking about hard and soft power as complementary is

that states will overlook instances of where hard power and soft power conflict,

thereby overlooking important reasons why their smart power strategies are failing.

As the Australian experience of counter-terrorism shows, these inconsistencies can be

indirect as well as direct. There is no evidence that Australia’s counter-terrorism laws

have directly undermined its soft power responses to terrorism, but there is certainly

an incongruity between Australia’s broadly drafted counter-terrorism laws and its

efforts to improve social cohesion in Muslim communities.92

By contrast, if governments conceive of hard and soft power as having the potential to work together effectively, but also having an inherent capacity to undermine each other, they will be more attuned to these kinds of dangers and thus more likely to ensure a better working relationship between hard and soft power. In other words, like the first two components of smart power thinking, the third component should be conceived as a policy goal that governments should aim to achieve, but not a conceptual rule they can take for granted. The contrasting UK and

Australian experiences of counter-terrorism suggest that governments can achieve the best possible working relationship between hard and soft power if they maintain the clearest possible distinction between those two approaches.

92 See Chapter Three, Part V(A).

442 In contrast to the other limbs of smart power thinking, this is the most nuanced

aspect of Nye’s theory. Nye recommends that states identify instances in which hard

power and soft power conflict, and adjust their existing tactics ‘so that they reinforce,

rather than undercut, each other’.93 However, he remains far too optimistic about the extent to which this is possible. His theory should be tempered by an awareness that hard and soft power frequently conflict in practice, and that some of the problems surrounding these tensions may be intractable. For example, because states are obligated to maintain coercive laws that criminalise the preparation and incitement of terrorism,94 there is an ongoing risk in domestic counter-terrorism that hard power

will undermine soft power. Due to relevant legal and moral obligations, as well as

security and political concerns, the solution is not as simple as suggesting that

governments can readjust their existing counter-terrorism tactics wherever they see

fit. Likewise, in counter-insurgency, a range of difficult questions surrounding the

relationship between hard and soft power are not necessarily amenable to a simple

smart power solution. How can states balance the need to achieve short-term security

with the desire to achieve long-term security? How can states obtain intelligence from

a population whilst also needing to conduct surveillance over that population for

suspicious behaviour? Nye’s theory would more accurately describe the relationship

between hard and soft power if he recommended that states do their best to ensure an

effective working relationship between those two approaches, while remaining aware

that there are tensions between hard and soft power which cannot easily be resolved.

93 Nye, The Future of Power, above n 42, 225.

94 SC Res 1373, UN SCOR, 57th sess, 4385th mtg, UN Doc S/RES/1373 (28 September 2001); SC Res

1624, UN SCOR, 60th sess, 5261st mtg, UN Doc S/RES/1624 (14 September 2005). See discussion in

Chapter Three, Part V(C).

443

B Lack of Evidence Demonstrating Effectiveness of Smart Power

Counterinsurgency doctrine in the West since September 11 has above all become an

operational panacea for what continues to remain a dangerous strategic vacuum; a

position all the more tenuous, given that counterinsurgency doctrine itself has now

been retrospectively mythologised as having offered the key to “clear cut victories” in

the past.95

- Alex Marshall, Small Wars & Insurgencies Journal (2010)

The lack of direct evidence supporting the effectiveness of smart power strategies is

striking. In a major inquiry into the Prevent strategy, many witnesses gave evidence

that the UK government was injecting funds into a ‘very underdeveloped science’

because it is extremely difficult to know whether soft power strategies for countering

violent extremism reduce terrorist activity.96 It seems that Australia’s soft power

responses to terrorism have been received more positively by communities,97 but this

provides little direct evidence that those strategies have proved effective in reducing

terrorism. In counter-insurgency, popular narratives surrounding Malaya and Iraq

suggest that smart power is the key to victory, but on closer inspection the historical

events surrounding these conflicts are significantly more complex. Competing

accounts of the Malaya and Iraq conflicts show that it is difficult to draw any clear

95 Alex Marshall, ‘Imperial Nostalgia, The Liberal Lie, and the Perils of Postmodern

Counterinsurgency’ (2010) 21(2) Small Wars and Insurgencies 233, 244.

96 CLG Committee, above n 25, Ev 21.

97 CPPP, above n 28, 19.

444 lessons as to the benefits of smart power. In part, this is because those two conflicts

reflect unique political and historical contexts which will never exactly be replicated.

The case studies of UK counter-terrorism and the Surge in Iraq suggest that it

is difficult to quantify the success of soft power strategies. As a result, governments

judge the success of these strategies largely by the effort and resources invested in

them rather than the impact they have had on communities. In the UK, for example,

government representatives pointed to the number of individuals on the Channel

intervention program as evidence that the program is succeeding,98 but this says

nothing about the impact that the program is having on those individuals or whether

the program is helping to reduce terrorist activity. In the absence of more accurate

metrics this approach is understandable, but these figures should not be mistaken for

direct evidence that soft power has proved effective in countering political violence. If

governments focus too heavily on the quantity rather than quality of soft power, they

will hand out benefits which do not necessarily align with the needs and desires of

communities. This may prove superfluous and even counter-productive. In Iraq, many

ill-conceived reconstruction projects were imposed on communities for the purposes

of reaching funding targets,99 and a pattern of ‘aid-and-contracting-driven violence’ developed as a result.100

The idea that smart power is effective in countering political violence should instead be conceived as a hypothesis – one based on the notion that excessive coercion is ineffective. It is now well accepted that excessive coercion proves ineffective and even counter-productive in countering political violence because it

98 CLG Committee, above n 25, 72-73.

99 See Hard Lessons, above n 66, 303; Van Buren, above n 70, 144.

100 Kilcullen, Out of the Mountains, above n 67, 11, 14.

445 generates resentment amongst the general population, thereby contributing to the

original problem it was intended to solve.101 This may be so, but it is too far a

conceptual leap to claim that smart power strategies are therefore effective. What is

needed, before governments can claim that smart power is effective in countering

political violence, is direct and quantifiable evidence supporting the effectiveness of

smart power in countering terrorism or insurgencies. This evidence is currently

lacking, and may indeed never be fully available due to the difficulties in quantifying

the success of soft power. In the meantime, governments are free to experiment with

smart power strategies, but they should not assume that smart power will prove

effective simply because excessive coercion failed. It is possible that smart power will

prove more effective than a strategy that relies only on coercion, but it is equally

possible that smart power will exacerbate the problems posed by hard power for the

reasons outlined above (such as by creating confusion about the lines between hard

and soft power, or by further reducing autonomy).

The idea that excessive coercion proves ineffective in countering political

violence is borne out by the events in both Malaya and Iraq. In Malaya, the ‘search

and destroy’ strategy favoured initially by the British administration contributed to a

larger and more violent insurgency.102 In Iraq, the ‘shock and awe’ approach of the

initial invasion created a violent insurgency, and subsequent ‘heavy-handed’

101 See especially Nye, Soft Power, above n 2, xii-xiii; Cole and Lobel, above n 6, 142; Holmes, above n 6, 327.

102 Richard Stubbs, ‘From Search and Destroy to Hearts and Minds: The Evolution of British Strategy in Malaya 1948-60’ in Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern

Warfare (Osprey, 2008) 101, 104; Richard Stubbs, Hearts and Minds in Guerrilla Warfare: The

Malayan Emergency 1948-1960 (Oxford University Press, 1989) 75, 91-2.

446 responses served only to exacerbate that violence.103 However, both Malaya and Iraq provide significant evidence that a different kind of coercive strategy – one directed at the population itself – will prove effective in defeating insurgencies.

With regard to Malaya, many historians have cited the resettlement camps as the decisive factor in the British victory.104 With regard to Iraq, many commentators and practitioners (including Petraeus himself) have cited the gated communities as a key factor contributing to the reduction in violence.105 In both contexts, the government implemented a strategy of population control in which ethnic communities were confined within physical barriers and subjected to intrusive searches and surveillance. Counter-insurgency theorists would describe population control as an example of soft power (or, of greater concern, through the misleading euphemism ‘positive coercion’),106 but it is clear that these were primarily hard power

103 Carter Malkasian, ‘Counterinsurgency in Iraq: May 2003-January 2010’ in Daniel Marston and

Carter Malkasian, Counterinsurgency in Modern Warfare (Osprey, 2008) 287, 289.

104 Karl Hack, ‘The Malayan Emergency as Counter-Insurgency Paradigm’ (2009) 32(3) Journal of

Strategic Studies 32(3) 383, 384-385; John Newsinger, British Counterinsurgency: From Palestine to

Northern Ireland (Palgrave, 2002) 51, 54; Anthony Short, The Communist Insurrection in Malaya:

1948-1960 (Frederick Mueller, 1975) 392, 502; Leon Comber, Malaya’s Secret Police 1945-60: The

Role of the Special Branch in the Malayan Emergency (Monash Asia Institute and Institute of

Southeast Asian Studies, 2008) 8, 81, 149, 285. See discussion in Chapter Four, Part V(B).

105 See Dale, above n 32, 107; John Agnew et al, ‘Baghdad Nights: Evaluating the US Military “Surge”

Using Nighttime Light Signatures’ (2008) 40 Environment and Planning 2285; Stephen Biddle, Jeffrey

A Friedman and Jacob N Shapiro, ‘Testing the Surge: Why Did Violence Decline in Iraq in 2007?’

(2012) 37(1) International Security 7, 36; Kilcullen, The Accidental Guerrilla, above n 58, 142.

106 FM 3-24, above n 8, [3-58] (‘positive coercion’), [3-67] (‘when [host nation] forces provide physical security, people are more likely to support the government’), [3-89] (methods of generating popular support include coercion).

447 strategies which imposed significant constraints on liberty. If population control was indeed the most important factor in reducing violence in Malaya and Iraq, then

Western governments have discovered an effective strategy for countering insurgencies, but not one that balances hard and soft power judiciously and mitigates the dangers of coercion.

Counter-insurgency theorists therefore give far too much weight to the idea that insurgencies have historically been defeated by applying smart power strategies.

With regard to the Surge, Kilcullen recounts that US military operations ‘finally began to reflect counterinsurgency best practice as demonstrated over dozens of campaigns in the last several decades’.107 On closer inspection, the history of counter- insurgency provides no such compelling evidence. As argued in Chapter Three,

Malaya stands alone as the only successful campaign in the colonial era in which victory is commonly attributed to a smart power strategy.108 Other counter-insurgency campaigns either provide lessons about what not to do in counter-insurgency

(Algeria), or they provide evidence of smart power approaches being applied successfully at the tactical level but not at the strategic level (Vietnam).109 Given the lack of evidence surrounding smart power in counter-insurgency, a more accurate assessment of the Malaya and Iraq conflicts is given by Karl Hack. According to

Hack, ‘FM 3-24’s “lessons” from Malaya are not so much deduced by analysis of the

107 Kilcullen, The Accidental Guerrilla, above n 58, 129.

108 Chapter Four, Part II(A).

109 See Chapter Four, Part II(A).

448 Emergency, as projected backwards onto it in order to justify preferred contemporary

policies’.110

The danger of thinking about smart power as effective is that governments

will become complacent once they have implemented a smart power strategy. If smart

power strategies are effective, then governments need not think further about

improving those strategies once they have supplemented hard power with soft power.

By contrast, the case studies in this thesis have demonstrated that a smart power

strategy is only the first step in moving beyond hard power strategies. Smart power

strategies require significant and ongoing attention if they are to become nuanced,

balanced, and effective. In other words, Nye’s smart power model is a starting point

and not the ultimate and definitive solution for countering political violence.

Governments should always look for ways to make their strategies smarter.

C Difficulties in Developing Smart Power Strategies

Embracing threat-centred counterterrorism and rejecting enemy-centered

counterterrorism is the best way to keep a cool head. It is a difficult choice to make

for both political and psychological reasons, however. Fighting an enemy allows the

U.S. government to “strut its stuff”, to frighten others, and to reassure itself by

110 Hack, ‘The Malayan Emergency as Counter-Insurgency Paradigm’, above n 104, 396. Michael

Burleigh makes the same point, remarking that ‘Generals and military experts have ransacked [the colonial] period for “how to do it” lessons for contemporary Iraq and Afghanistan, often by ignoring what tactics actually won atypical campaigns in favour of what best resembles what they want to do in the present’: Michael Burleigh, Small Wars, Faraway Places: The Genesis of the Modern World –

1945-65 (Pan Books, 2014). See also Marshall, above n 95, 234.

449 displaying how destructive it can be … The appeal of such displays of force is the

appeal of enemy-centered counterterrorism.111

- Stephen Holmes, The Matador’s Cape (2007)

Part of the reason why there is a lack of evidence surrounding effective smart power

strategies is because states typically react to serious threats in visceral and emotional

ways. When a serious threat strikes, such as occurred on 9/11, it is extremely difficult

for states to respond with a considered and balanced strategy. Indeed, in responding to

9/11, it would not have been politically plausible for any Western leader to favour a

smart power response which gave significant weight to soft power. Addressing the

legitimate grievances of al-Qaeda through soft power simply was not on the agenda.

In the UK, Prime Minister Tony Blair expressed a typical and familiar sentiment in

declaring that his government would hunt down the members of al-Qaeda and ‘bring

them to the justice they deserve’.112

Stephen Holmes has explored this phenomenon, likening 9/11 to ‘a matador’s

cape in the hands of a homicidal maniac’.113 The attacks provoked the US and its allies into an ‘enemy-centered’ strategy which focused narrowly on coercion and bred substantial anti-Western resentment.114 He recommends that Western governments

adopt a ‘threat-centered’ strategy, such as by countering the proliferation of nuclear

111 Holmes, above n 6, 328-329.

112 Parliament of United Kingdom, Hansard, House of Commons, 14 November 2001, vol 374, col 863

(Tony Blair).

113 Holmes, above n 6, 328.

114 Ibid 327-328.

450 weapons.115 He argues that the ‘most important rule for conducting an effective

counterterrorism campaign is not to be provoked’.116 He concedes that governments are less likely to adopt this considered approach, however, as a threat-centred strategy

‘lacks the eye-catching electoral benefits of war-centered counterterrorism’.117

The four case studies in this thesis each describe a scenario in which a

government responded initially to a political threat with a narrowly coercive strategy,

and then attempted to develop a smart power strategy by increasing its reliance on

soft power. In each of these scenarios, significant investments in soft power have been

made, but these investments in soft power have not been accompanied by an

equivalent reduction in hard power or the dismantling of existing coercive

frameworks. For example, both the UK and Australia retain extraordinary counter-

terrorism powers on their statute books – despite the significant investments they have

made in soft power, and despite there being significant reason to believe that those

counter-terrorism laws are undermining the success of their soft power responses to

terrorism. With regard to counter-insurgency, even strong advocates of smart power

have conceded that there are difficulties in getting governments to adjust their

existing strategies in favour of soft power. As Stubbs explains:

Getting any government to move down the continuum toward an out-and-out hearts

and minds approach is often difficult. Senior politicians, military officials, and

115 Ibid 327-329.

116 Ibid 328.

117 Ibid 329.

451 bureaucrats become tied to specific policies, and find it hard to admit they may be

wrong.118

If a government responded to a serious political threat with a balanced smart power approach from the beginning, rather than responding with hard power and then attempting to develop a smart power strategy, it is entirely possible that such a strategy would counter political violence effectively whilst avoiding the detrimental effects of coercion. Because of the political and psychological difficulties in resisting initial coercive responses, we do not yet have a viable testing ground for whether this would be the case. Once governments respond with a hard power strategy – as in the

UK, Australia, Malaya and Iraq – it becomes extremely difficult for those governments to develop a balanced smart power approach. There are political reasons why this is difficult, because governments may lose votes if they reduce their reliance on hard power. There are security reasons why this is difficult, because governments will expose their citizens to greater harm if they reduce their reliance on hard power.

And, as the Australian experience of counter-terrorism suggests, there may be legal and moral reasons why this is difficult, because governments may be obligated to maintain broad coercive powers that have counter-productive social effects.119

This is not to deny that Western governments have made significant investments in soft power in recent years. In contrast to the initial years after 9/11,

Western governments now recognise the potential benefits that soft power can bring to strategies for countering political violence. Nye’s theory makes an important contribution in this area by encouraging governments to place significant value on

118 Stubbs, ‘From Search and Destroy to Hearts and Minds’, above n 102, 118.

119 See Chapter Three, Part V(C).

452 soft power. Alongside Petraeus and Kilcullen, Nye has contributed to a culture in

which it is more likely states will think twice before responding to political threats

with excessive coercion. Nonetheless, for political and psychological reasons there is

still a significant risk that states will react to political threats in unconsidered ways,120

and Nye should be less optimistic about the capacity for governments to develop

smart power strategies once this has occurred. It may be implausible for a government

to respond immediately to a political threat with a smart power approach, but it is

perhaps equally implausible that a government will develop a balanced smart power

strategy once it has committed to the heavy use of hard power. It is far more likely

that the development of soft power responses will be a case of ‘too little too late’.121

If Western governments committed to reducing their existing reliance on hard

power outside the context of an immediate political threat, this would provide an

important testing ground for the benefits of a balanced smart power strategy. For

example, the Australian government retains a range of extraordinary counter-

terrorism laws which are not currently being used.122 Those laws could now be

repealed in a time of relative peace. Repealing those laws might entail a higher risk to

security, if it turned out that further shifting the balance towards soft power created a

strategy that was not as effective in preventing terrorism. But doing so would give the

Australian government an important opportunity to test whether this would be the

120 Holmes, above n 6, 328-329.

121 As argued by Kahl with regard to the Surge in Iraq: Colin H Kahl, ‘COIN of the Realm: Is There a

Future for Counterinsurgency’ (2007) 86(6) Foreign Policy 169, 175.

122 In particular, the questioning and detention powers of the Australian Security Intelligence

Organisation (ASIO), control orders, and preventative detention orders: see Australian Security

Intelligence Organisation Act 1979 (Cth), pt III, div 3; Criminal Code Act 1995 (Cth), divs 104-105.

453 case. If repealing those laws did create a higher risk to security, this may be the price that governments must pay for a balanced smart power strategy that mitigates the dangers of coercion to the greatest extent.

In the meantime, there is a danger in assuming that governments can achieve a smart power strategy simply by reducing their existing reliance on hard power. The danger is that opposition parties and citizens will be more willing to accept extraordinary coercive measures in response to new threats if they believe that those coercive measures will be removed or amended in favour of a smart power approach once the initial threat subsides. This can be seen with the inclusion of sunset clauses in domestic counter-terrorism laws, as opposition parties have been more willing to accept extraordinary powers under the assumption that the government will repeal those laws after a specified period.123 The extent to which temporary emergency powers have become normalised into domestic legal systems after 9/11 demonstrates that this happens very rarely.124 Where some counter-terrorism laws have been

123 See John E Finn, ‘Sunset Clauses and Democratic Deliberation: Assessing the Significance of

Sunset Provisions in Antiterrorism Legislation’ (2010) Columbia Journal of Transnational Law 442,

454, 466, 484-485; Chris Mooney, ‘A Short History of Sunsets’ (2004) (Jan/Feb) Legal Affairs

. With regard to the sunset clause placed on the controversial questioning and detention powers of the

Australian Security Intelligence Organisation (ASIO), see Nicola McGarrity, Rishi Gulati and George

Williams, ‘Sunset Clauses in Australian Anti-Terror Laws’ (2012) 33 Adelaide Law Review 308.

McGarrity, Gulati and Williams argue (at 316-317) that the inclusion of a sunset clause in the legislation did not stifle meaningful parliamentary debate, but they concede that it was an important factor in the legislation ultimately being passed by Parliament.

124 See Nicola McGarrity and George Williams, ‘When Extraordinary Measures Become Normal: Pre-

Emption in Counter-Terrorism and Other Laws’ in Nicola McGarrity, Andrew Lynch and George

Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and Justice After 9/11 (Routledge,

454 repealed, they have been replaced with powers that are equally problematic,125 or later reintroduced when a new threat arises.126 By contrast, if it is assumed that governments find it extremely difficult to develop smart power strategies once they have invested significant resources in hard power, this would give greater reason ‘to keep a cool head when the matador’s cape is flashed before the eyes’.127

2010) 131; Gabrielle Appleby and John Williams, ‘The Anti-Terror Creep: Law and Order, the States and the High Court of Australia’ in Nicola McGarrity, Andrew Lynch and George Williams (eds),

Counter-Terrorism and Beyond: The Culture of Law and Justice After 9/11 (Routledge, 2010) 150.

125 For example, in response to 9/11, the UK government enacted powers to indefinitely detain non- citizen suspects: Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, pt IV (now repealed). Those powers were repealed after the House of Lords held them to be incompatible with the rights to liberty and freedom from discrimination: see Av Secretary of State for the Home Department [2004] UKHL

56. The indefinite detention powers were then replaced with control orders, which proved nearly as controversial: Prevention of Terrorism Act 2005 (UK) c 2 (now repealed); see David Anderson QC,

Control Orders in 2011: Final Report of the Independent Reviewer on the Prevention of Terrorism Act

2005 (TSO, March 2012) 9.

126 For example, in response to 9/11, the Canadian government enacted laws providing for preventive arrests and investigative hearings: Anti-Terrorism Act, SC 2001, c 41; see Kent Roach, The 9/11 Effect

(Cambridge University Press, 2011) 390-393. Those powers later lapsed, but were re-enacted in 2013 in response to a foiled terror plot to attack a Canadian passenger train: see Tobi Cohen, ‘Controversial anti-terror bill passes, allowing preventative arrests, secret hearings’, National Post (Toronto), 25 April

2013; Lee Berthiaume, ‘Political opportunism’: Opposition parties slam Tories over counter-terrorism legislation timing’, National Post (Toronto), 23 April 2013.

127 Holmes, above n 6, 328.

455 IV LESSONS FOR DEVISING SMART POWER STRATEGIES

In counter-terrorism and counter-insurgency, claims that hard power should be supplemented with soft power hinge on three key ideas or premises. First, hard power and soft power are viewed as two distinct approaches to countering political violence.

Secondly, soft power is viewed as morally preferable to hard power. Thirdly, hard power and soft power are viewed as two complementary approaches to influencing behaviour. If these three ideas do not stand, then Western governments do not have a solid theoretical foundation for using smart power to counter political violence.

The case studies in this thesis have explored the significant tensions, problems and complexities underlying these three ideas. Nye is aware of these issues to some degree, but he largely dismisses them in recommending that governments adopt his smart power model. By contrast, the Western experience of counter-terrorism and counter-insurgency shows that these complexities cannot be dismissed in favour of shorthand rules. The convergence of hard and soft power, the dangers of soft power, and the complex interaction between hard and soft power: these things all matter, and indeed they matter very much. They certainly matter more than one would believe from reading Nye’s work, and yet smart power persists as the key strategic framework guiding contemporary Western responses to political violence.

The key task for governments is to identify the myriad tensions, problems and complexities surrounding smart power strategies, and to devise ways to resolve them.

In other words, smart power thinking provides useful policy goals that governments should aim to achieve, but not conceptual rules that they can take for granted.

According to Nye’s theory, governments should develop smart power strategies because smart power thinking accurately describes the difference and relationship

456 between hard and soft power. Governments should develop smart power strategies because hard and soft power are distinct, because soft power is morally preferable to hard power, and because hard and soft power are complementary. In reality, if governments continue to develop smart power strategies, they will be doing so despite the fact that these three statements rarely describe policymaking in practice.

In this respect, Nye’s smart power model is an important first step in moving beyond the excessively coercive strategies favoured by Western governments after

9/11 – but it is only a first step and not the final objective. A truly ‘smart’ strategy for countering political violence would be founded on the following elements: a complex view of the distinction between hard and soft power; an awareness of the dangers that soft power poses to autonomy; an awareness of the underlying tensions between hard and soft power; a more cautious appraisal of the effectiveness of smart power; and a realistic view of the likelihood that states will develop balanced smart power strategies once they have invested significant resources in hard power.

This chapter concludes by suggesting seven means of devising and improving smart power strategies. These are, in effect, seven lessons to be learned from the preceding case studies. They build on Nye’s theory by setting out the ways in which governments can address the shortcomings of smart power thinking:

(1) Maintain a clear distinction between hard power and soft power. Hard

power and soft power frequently converge in the practice of countering

political violence, and this convergence can create substantial suspicion and

resentment in communities. Governments should identify instances in which

hard and soft power have converged, and devise ways to separate them. This

may require governments to clarify the functions of different institutions, such

457 as by outsourcing soft power tasks currently performed by the police and military to institutions that are typically associated with soft power. Separating hard and soft power in this way will also contribute to a better working relationship between the two approaches.

(2) Think outside the smart power dichotomy. Hard power and soft power are not the only ways to prevent and mitigate political violence. Governments can also adopt defensive measures which reduce opportunities for violence by altering the surrounding environment. For example, they can reinforce buildings to resist terrorist attacks and improve cargo screening procedures at airports. Likewise, procedural measures for protecting hazardous materials can help to prevent political violence without having the same direct impact on individuals as either hard or soft power.

(3) Devise soft power responses to political violence so that they preserve and expand rather than limit and constrain free choice. There is nothing in the nature of soft power which makes it inherently compatible with autonomy.

Many uses of soft power undermine autonomy by constraining free choice and by manipulating individuals into acting in ways that are favourable to government. If soft power responses to political violence are to mitigate the negative effects of hard power, then governments must ensure that soft power provides additional avenues for the expression of political and religious ideas.

Religious and political views which are controversial but do not pose any immediate danger to the community should not become the target of state interventions. Above all, governments should consult directly and

458 meaningfully with communities as to the benefits they need, rather than imposing choices on them in accordance with the needs of government.

(4) Look for ways in which hard power can protect autonomy. The assumption that soft power is morally preferable to hard power ignores the fact that hard power can also play a key role in protecting autonomy. Governments should look for ways in which soft power can mitigate the effects of hard power – but they should equally look for ways in which hard power can mitigate the detrimental effects of existing strategies. For example, criminal offences for hate crime can help to protect the autonomy of Muslim communities who have been disproportionately affected by the use of counter-terrorism laws.

(5) Aim to create the best possible working relationship between hard power and soft power. There are potential benefits to combining hard and soft power, but there are also underlying tensions between these two approaches.

Governments should look for instances where hard and soft power conflict, and devise ways to ensure that they work more effectively in parallel. This includes indirect inconsistencies, where hard power is not directly undermining soft power but the two approaches are working at cross-purposes.

Governments should be aware, however, that it may not be possible to ensure a perfect working relationship between hard and soft power. For example, it may not be possible to achieve security in the short-term whilst also establishing the conditions necessary to achieve long-term security. In this respect, smart power strategies may involve difficult trade-offs as to which of two or more competing objectives a government thinks should take priority.

459

(6) Be realistic about the potential benefits of smart power. If devised appropriately, smart power strategies are preferable to excessive coercion, but they can also exacerbate the problems posed by hard power. Above all, there is a distinct lack of evidence demonstrating the effectiveness of smart power.

In part, this is because the success of soft power is notoriously difficult to quantify. Governments should continually assess the success of their smart power strategies, including by developing more accurate ways to assess the effectiveness of soft power. They should not assume that they have developed an effective strategy simply because they have supplemented hard power with soft power.

(7) Have the courage to remove or reduce the severity of hard power responses to political violence. To date, it is difficult to assess the full potential benefits of smart power strategies because governments have been unwilling for political and security reasons to reduce their existing reliance on hard power. If governments made a genuine commitment to reducing their reliance on hard power, this would provide an important testing ground for smart power. Overcoming the political and security reasons for retaining hard power will likely be difficult – but it is the only way in which the success of smart power responses to political violence could accurately be assessed. It may turn out that this entails a higher risk to security, because shifting the balance further in favour of soft power creates a strategy that is less effective in countering political violence. If this proves to be the case, a higher risk to security may be the price that governments must pay for a balanced smart

460 power strategy that upholds the democratic rights and values they are

ultimately trying to protect.

These seven lessons would help governments move beyond the ubiquitous and superficial rhetoric of ‘winning hearts and minds’. If governments were to reflect on these seven points when developing and improving their responses to political violence, this would contribute to more complex and nuanced smart power strategies

– smart power strategies that mitigate the detrimental effects of coercion to the greatest extent, and grant choices to communities which are authentically their own.

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Janice Bially Mattern, ‘Why “Soft Power” Isn’t So Soft: Representational Force and

Attraction in World Politics’ in Felix Berenskoetter and M J Williams (eds), Power in

World Politics (Routledge, 2007) 98

Christopher W Morris, ‘Human Autonomy and the Right to Be Free’ (1980) 4(4)

Journal of Libertarian Studies 379

Suzanne Nossel, ‘Smart Power’ (2004) 83(2) Foreign Policy 131

Marina A L Oshana, ‘Autonomy and Self-Identity’ in John Christman and Joel

Anderson (eds), Autonomy and the Challenges to Liberalism: New Essays

(Cambridge University Press, 2005)

Inderjeet Parmar and Michael Cox, Soft Power and US Foreign Policy: Theoretical,

Historical and Contemporary Perspectives (Routledge, 2010)

464 Sharon Pickering, Jude McCulloch and David Wright-Neville, Counter-Terrorism

Policing: Community, Cohesion and Security (Springer, 2008)

Sharon Pickering, Jude McCulloch and David Wright-Neville, ‘Counter-Terrorism

Policing: Towards Social Cohesion’ (2008) 50 (1/2) Crime, Law and Social Change

Joseph S Nye Jr, Bound to Lead: The Changing Nature of American Power (Basic

Books, 1990)

Joseph S Nye Jr, ‘Notes For a Soft-Power Research Agenda’ in Felix Berenskoetter and M J Williams (eds), Power in World Politics (Routledge, 2007) 162

Joseph S Nye Jr, Soft Power: The Means to Success in World Politics (Public Affairs,

2004)

Joseph S Nye Jr, The Future of Power (Public Affairs, 2011)

Joseph S Nye Jr, The Powers to Lead (Oxford University Press, 2008)

John Rawls, Political Liberalism (Columbia University Press, first published 1993,

2011 ed)

Joseph Raz, The Morality of Freedom (Oxford University Press, first published 1986,

2009 ed)

Jeremy Waldron, ‘Moral Autonomy and Personal Autonomy’ in John Christman and

Joel Anderson (eds), Autonomy and the Challenges to Liberalism: New Essays

(Cambridge University Press, 2005)

Ernest J Wilson III, ‘Hard Power, Soft Power, Smart Power’ (2008) 616 Annals of the

American Academy of Political and Social Science 110

465 Geraldo Zahran and Leonardo Ramos, ‘From Hegemony to Soft Power: Implications

of a Conceptual Change’ in Inderjeet Parmar and Michael Cox (eds), Soft Power and

US Foreign Policy: Theoretical, Historical and Contemporary Perspectives

(Routledge, 2010) 12

CHAPTER TWO: UK COUNTER-TERRORISM

Policy Documents and Reports:

Association of Chief Police Officers (ACPO), National Channel Referral Figures

(2014)

alFigures.aspx>

Association of Chief Police Officers, Prevent, Police and Schools: Guidance for

Police Officers and Police Staff to Help Schools Contribute to the Prevention of

Violent Extremism (ACPO, December 2009)

Association of Chief Police Officers, Prevent, Police and Universities: Guidance for

Police Officers & Police Staff to Help Higher Education Institutions Contribute to the

Prevention of Terrorism (ACPO, May 2012)

David Anderson QC, Control Orders in 2011: Final Report of the Independent

Reviewer on the Prevention of Terrorism Act 2005 (TSO, March 2012)

David Anderson QC, Terrorism Prevention and Investigation Measures in 2013:

Second Report of the Independent Reviewer on the Operation of the Terrorism

Prevention and Investigation Measures Act 2011 (TSO, 2014)

466 David Anderson QC, The Terrorism Acts in 2012: Report of the Independent

Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act

2006 (TSO, July 2013)

Lord Carlile of Berriew QC, The Definition of Terrorism: A Report by Lord Carlile of

Berriew QC, Independent Reviewer of Terrorism Legislation (TSO, March 2007)

Tufyal Choudhury and Helen Fenwick, The Impact of Counter-Terrorism Measures on Muslim Communities (Equality and Human Rights Commission, Research Report

72, 2011)

Department for Communities and Local Government, NI35: Building Communities

Resilient to Violent Extremism – Assessment Framework (2008)

Department for Communities and Local Government, Preventing Violent Extremism

Pathfinder Fund 2007/08: Case Studies (Communities and Local Government, April

2007)

Department for Communities and Local Government, Preventing Violent Extremism

Pathfinder Fund: Guidance Note for Government Offices and Local Authorities in

England (Communities and Local Government, February 2007)

Department for Communities and Local Government, Preventing Violent Extremism

Pathfinder Fund: Mapping of Project Activities 2007/2008 (Communities and Local

Government, December 2008)

Department for Communities and Local Government, Preventing Violent Extremism:

Winning Hearts and Minds (Communities and Local Government, April 2007)

467 Home Office, Channel: Protecting Vulnerable People from Being Drawn Into

Terrorism – A Guide for Local Partnerships (Home Office, 2012)

Home Office, CONTEST: The United Kingdom’s Strategy for Countering Terrorism

(TSO, July 2011, Cm 8123)

Home Office, CONTEST: The United Kingdom’s Strategy for Countering Terrorism

– Annual Report (London: Home Office, March 2013, Cm 8583)

Home Office, Countering International Terrorism: The United Kingdom’s Strategy

(London: TSO, July 2006, Cm 6888)

Home Office, Operation of Police Powers under the Terrorism Act 2000 and

Subsequent Legislation: Arrests, Outcomes and Stop and Searches, Great Britain,

2012 to 2013 (12 September 2013)

Home Office, Operation of Police Powers Under the Terrorism Act 2000 and

Subsequent Legislation: Arrests, Outcomes and Stops and Searches, Quarterly

Update to 30 September 2013, Great Britain (6 March 2014)

Home Office, Prevent Strategy (TSO, June 2011, Cm 8092)

Home Office, Proscribed Terror Groups or Organisations (27 June 2014)

Home Office, Pursue Prevent Protect Prepare: The United Kingdom’s Strategy for

Countering Terrorism (TSO, March 2009, Cm 7547)

Home Office, Review of Counter-Terrorism Powers: Review Findings and

Recommendations (TSO, January 2011, Cm 8004)

468 Home Office and Association of Chief Police Officers (ACPO), Channel: Supporting

Individuals Vulnerable to Recruitment by Violent Extremists – A Guide for Local

Partnerships (Home Office and ACPO, March 2010)

Home Office and Department for Communities and Local Government, The Prevent

Strategy: A Guide for Local Partners in England – Stopping People Becoming or

Supporting Terrorists and Violent Extremists (Home Office and Department for

Communities and Local Government, May 2008)

House of Commons Home Affairs Committee, Parliament of United Kingdom, Roots of Violent Radicalisation: Nineteenth Report of Session 2010-12 (HC 1446, 6

February 2012)

Humberside Police and North Lincolnshire’s Local Safeguarding Children Board,

Guidance for Working with Children and Young People Who Are Vulnerable to the

Messages of Terrorism and Extremism (December 2012)

Universities UK, Freedom of Speech on Campus: Rights and Responsibilities in UK

Universities (London: Universities UK, February 2011)

Commentary:

David G Barnum, ‘Indirect Incitement and Freedom of Speech in Anglo-American

Law’ (2006) 3 European Human Rights Law Review 258

Ed Bates, ‘Anti-Terrorism Control Orders: Liberty and Security Still in the Balance’

(2009) 29(1) Legal Studies 99

Rebecca Scott Bray and Greg Martin, ‘Closing Down Open Justice in the United

Kingdom’ (2012) 37(2) Alternative Law Journal 126

469 Rachel Briggs, ‘Community Engagement for Counterterrorism: Lessons from the

United Kingdom’ (2010) 86(4) International Affairs 971

Ian Cram, Terror and the War on Dissent: Freedom of Expression in the Age of Al-

Qaeda (Springer, 2009)

Keith D Ewing and Joo-Cheong Tham, ‘Limitations of a Charter of Rights in the Age of Counter-Terrorism’ (2007) 31(2) Melbourne University Law Review 462

Keith Ewing and Joo-Cheong Tham, ‘The Continuing Futility of the Human Rights

Act’ (2008) (Winter) Public Law 668

Helen Fenwick, ‘Designing ETPIMs around ECHR Review or Normalisation of

“Preventive” Non-Trial-Based Executive Measures?’ (2013) 76(5) Modern Law

Review 876

Helen Fenwick, ‘Preventive Anti-Terrorist Strategies in the UK and ECHR: Control

Orders, TPIMs and the Role of Technology’ (2011) 25(3) International Review of

Law, Computers & Technology 129

Helen Fenwick and Gavin Phillipson, ‘UK Counter-Terror Law Post-9/11: Initial

Acceptance of Extraordinary Measures and the Partial Return to Human Rights

Norms’ in Victor V Ramraj et al (eds), Global Anti-Terrorism Law and Policy

(Cambridge University Press, 2nd ed, 2012) 481

Jonathan Githens-Mazer and Robert Lambert, ‘Why Conventional Wisdom on

Radicalization Fails: The Persistence of a Failed Discourse’ (2010) 86(4)

International Affairs 889

470 Steven Greer, ‘Anti-Terrorist Laws and the United Kingdom’s “Suspect Muslim

Community”’ (2010) 50 British Journal of Criminology 1171

Charlotte Heath-Kelly, ‘Reinventing Prevention or Exposing the Gap? False Positives

in UK Terrorism Governance and the Quest for Pre-Emption’ (2012) 5(1) Critical

Studies on Terrorism 69

Adrian Hunt, ‘Criminal Prohibitions on Direct and Indirect Encouragement of

Terrorism’ (2007) (June) Criminal Law Review 441

Charles Husband and Yunis Alam, Social Cohesion and Counter-Terrorism: A Policy

Contradiction? (Policy Press, 2011) 150

John Ip, ‘The Reform of Counterterrorism Stop and Search after Gillan v United

Kingdom’ (2013)

Aileen Kavanagh, ‘Constitutionalism, Counterterrorism, and the Courts: Changes in

the British Constitutional Landscape’ (2011) 9(1) International Journal of

Constitutional Law 172

Aileen Kavanagh, ‘Special Advocates, Control Orders and the Right to a Fair Trial’

(2010) 73(5) Modern Law Review 824

Arun Kundnani, Spooked! How Not to Prevent Violent Extremism (Institute of Race

Relations, 2009)

Jude McCulloch and Sharon Pickering, ‘Pre-Crime and Counter-Terrorism: Imagining

Future Crime in the “War on Terror”’ (2009) 49(5) British Journal of Criminology

628.

471 David Miller and Rizwaan Sabir, ‘Counter-Terrorism as Counterinsurgency in the UK

“War on Terror”’ in Scott Poynting and David White (eds), Counter-Terrorism and

State Political Violence (Routledge, 2012)

Christina Pantazis and Simon Pemberton, ‘From the “Old” to the “New” Suspect

Community’ (2009) 49(5) British Journal of Criminology 646

Anthony Richard, ‘The Problem with “Radicalization”: The Remit of “Prevent” and the Need to Refocus on Terrorism in the UK’ (2011) 87(1) International Affairs 143

Joo-Cheong Tham, ‘Parliamentary Deliberation and the National Security Executive’

(2010)(Jan) Public Law 79

Paul Thomas, ‘Failed and Friendless: The UK’s “Preventing Violent Extremism”

Programme’ (2010) 12(3) British Journal of Politics and International Relations 442

Clive Walker, ‘Militant Speech About Terrorism in a Smart Militant Democracy’

(2011) 80 Mississippi Law Journal 1395

Lucia Zedner, ‘Fixing the Future? The Pre-Emptive Turn in Criminal Justice’ in

Bernadette McSherry, Alan Norrie and Simon Bronitt (eds), Regulating Deviance:

The Redirection of Criminalisation and the Futures of Criminal Law (Hart, 2008) 35

Lucia Zedner, ‘Pre-Crime and Post-Criminology?’ (2007) 11 Theoretical Criminology

261

Lucia Zedner, ‘Preventive Justice or Pre-Punishment? The Case of Control Orders’

(2007) 60(1) Current Legal Problems 174

472 Media Articles:

Martin Beckford, ‘Police forces accused of race bias in stop and search figures’, The

Telegraph (London), 12 June 2012

Owen Bowcott, ‘David Miranda allowed to appeal against ruling on Heathrow detention’, The Guardian (London), 15 May 2014

Vikram Dodd, ‘Government anti-terrorism strategy “spies” on innocent’, The

Guardian (London), 16 October 2009

Clare Dyer, ‘Terror QC: more will quit special court’, The Guardian (London), 20

December 2004

Ryan Gallagher and Rajeev Syal, ‘University staff asked to inform on “vulnerable”

Muslim students’, The Guardian (London), 30 August 2011

Mark Hughes, ‘Police identify 200 children as potential terrorists’, The Independent

(London), 28 March 2009

Aldan Jones, ‘Police scheme identifies 180 children as potential Islamic extremists’,

The Guardian (London), 28 March 2009

Alasdair Palmer, ‘We can’t avoid the threat of Islamism’, The Guardian (London), 8

June 2014

Keith Perry, ‘Trojan horse plot school criticised in Ofsted report’, The Telegraph

(London), 7 June 2014

Alan Rusbridger, ‘David Miranda, schedule 7 and the danger that all reporters now face’, The Guardian (London), 20 August 2013

473 Andrew Sparrow, ‘Theresa May to face questions from MPs over schools extremism

row’, The Guardian (London), 9 June 2014

Andrew Sparrow and Richard Adams, ‘“Trojan horse” row: Downing Street launches

snap Ofsted visits’, The Guardian (London), 9 June 2014

Alan Travis, ‘Gove v May reflects a long-running debate over counter-terrorism

strategy’, The Guardian (London), 5 June 2014

Alan Travis, ‘Government names most influential “pro-Islamic” bloggers’, The

Guardian (London), 24 March 2010

Nicholas Watt, ‘Nick Clegg queries whether police acted lawfully over David

Miranda’, The Guardian (London), 24 August 2013

Jonathan Watts, ‘David Miranda: “They said I would be put in jail if I didn’t co-

operate”’, The Guardian (London), 20 August 2013

Brian Whitaker, ‘Not much blog for your buck’, The Guardian (London), 25 March

2010

Tom Whitehead, ‘Hundreds of children identified as extremism risk’, The Telegraph

(London), 22 July 2013

Legislation:

Anti-Social Behaviour, Crime and Policing Act 2014 (UK) c 12

Anti-Terrorism, Crime and Security Act 2001 (UK) c 24

Counter-Terrorism Act 2008 (UK) c 28.

Justice and Security Act 2013 (UK) c 18

474 Prevention of Terrorism Act 2005 (UK), c 2.

Protection of Freedoms Act 2012 (UK) c 9

Terrorism Act 2000 (UK) c 11

Terrorism Act 2006 (UK) c 11

Terrorism Prevention and Investigation Measures Act 2011 (UK) c 23

Terrorist Asset-Freezing etc Act 2010 (UK) c 38

Cases:

A v Secretary of State for the Home Department [2004] UKHL 56

A v United Kingdom (2009) 49 EHRR 29

AT v Secretary of State for the Home Department [2012] EWCA Civ 42

Gillan v Commissioner of Police for the Metropolis [2006] UKHL 12

Gillan and Quinton v United Kingdom [2009] ECHR 28

HM Treasury v Ahmed [2010] UKSC 2

R v F [2007] 2 All ER 193

R v G [2009] UKHL 13

R v Gul [2012] EWCA Crim 280

Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28

Secretary of State for the Home Department v AP [2010] UKSC 24

Secretary of State for the Home Department v BC [2009] EWHC 2927

475 Secretary of State for the Home Department v DD (Afghanistan) [2010] EWCA Civ

1407

Secretary of State for the Home Department v E [2007] UKHL 47

Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141

Secretary of State for the Home Department v JJ [2006] EWHC 1623 (Admin).

Secretary of State for the Home Department v MB [2007] UKHL 46

CHAPTER THREE: AUSTRALIAN COUNTER-TERRORISM

Policy Documents and Reports:

Attorney-General’s Department, Countering Violent Extremism (2014)

spx>.

Australian Government, Australian Government Meeting with Islamic Community

Leaders: Statement of Principles (23 August 2005)

Australian Government, Counter-Terrorism White Paper: Securing Australia –

Protecting Our Community (Department of Prime Minister and Cabinet, 2010)

Australian Government, Resilient Communities (2014)

Australian Human Rights Commission, Australian Multicultural Foundation and ARC

Centre of Excellence in Policing and Security, Building Trust: Working with Muslim

Communities in Australia – A Review of the Community Policing Partnership Project

476 (Australian Human Rights Commission and Australian Multicultural Foundation,

December 2010)

Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in

Australia (Australian Government, Report 104, July 2006)

Australian Multicultural Advisory Council, The People of Australia: The Australian

Multicultural Advisory Council’s Statement on Cultural Diversity and

Recommendations to Government (Australian Multicultural Advisory Council, April

2010).

Australian Social Inclusion Board, Building Inclusive and Resilient Communities

(Australian Government, June 2009)

Australian Social Inclusion Board, Social Inclusion in Australia: Australia is Faring

(Department of Prime Minister and Cabinet, 2010)

Hon John Clarke QC, Report of the Clarke Inquiry into the Case of Dr Mohamed

Haneef (Australian Government, 2008).

Council of Australian Governments, Council of Australian Governments

Communiqué: Special Meeting on Counter-Terrorism (Australian Government, 27

September 2005)

27/docs/coag270905.pdf>

Council of Australian Governments, Council of Australian Governments Review of

Counter-Terrorism Legislation (Australian Government, 2013)

Commonwealth, Parliamentary Joint Committee on ASIO, ASIS and DSD, ASIO’s

Questioning and Detention Powers: Review of the Operation, Effectiveness and

477 Implications of Division 3 of Part III in the Australian Security Intelligence

Organisation Act 1979 (November 2005)

Commonwealth, Parliamentary Joint Committee on Intelligence and Security, Review

of Security and Counter Terrorism Legislation (December 2006)

Commonwealth, Security Legislation Review Committee, Report of the Security

Legislation Review Committee (2006) 123

Department of Immigration and Citizenship, Living in Harmony: Program Review

(Australian Government, 2008)

Department of Immigration and Multicultural Affairs, Annual Report 2005-06

(Australian Government, October 2006) 223

Human Rights and Equal Opportunity Commission, Isma! – Listen: National

Consultations on Eliminating Prejudice Against Arab and Muslim Australians

(Human Rights and Equal Opportunity Commission, 2004)

Human Rights and Equal Opportunity Commission, Report to the Department of

Immigration and Citizenship (DIAC) on the Unlocking Doors Project (Human Rights

and Equal Opportunity Commission, 2007)

Ministerial Council on Immigration and Multicultural Affairs, A National Action Plan

to Build on Social Cohesion, Harmony and Security (Australian Government, 2006)

National Counter-Terrorism Committee, National Counter-Terrorism Plan

(Australian Government, 2nd ed, September 2005)

National Counter-Terrorism Committee, National Counter-Terrorism Plan

(Australian Government, June 2003)

478 National Counter-Terrorism Committee, National Security Public Information

Guidelines (Australian Government, June 2010).

National Counter-Terrorism Committee, Plan (Australian Government, 3rd ed, 2012)

Minerva Nasser-Eddine et al, Countering Violent Extremism (CVE) Literature Review

(Defence Science and Technology Organisation, March 2011)

Bret Walker SC, Annual Report: 16 December 2011 (Australian Government, 2012)

Bret Walker SC, Declassified Annual Report: 20th December 2012 (Australian

Government, 2013)

Bret Walker SC, Annual Report: 7th November 2013 (Australian Government, 2013)

Commentary:

Kais Al-Momani et al, Political Participation of Muslims in Australia (Centre for

Research on Social Inclusion, June 2010) 46

Gabrielle Appleby and John Williams, ‘The Anti-Terror Creep: Law and Order, the

States and the High Court of Australia’ in Nicola McGarrity, Andrew Lynch and

George Williams (eds), Counter-Terrorism and Beyond: The Culture of Law and

Justice After 9/11 (Routledge, 2010) 150

Jessie Blackbourn, ‘Anti-Terrorism Law Reform: Now or Never?’ (2014) 25 Public

Law Review 3

Lisa Burton, Nicola McGarrity and George Williams, ‘The Extraordinary Questioning

and Detention Powers of the Australian Security Intelligence Organisation’ (2012) 36

Melbourne University Law Review 415

479 Lisa Burton and George Williams, ‘What Future for Australia’s Control Order

Regime?’ (2013) 24 Public Law Review 182

Greg Carne, ‘Prevent, Detain, Control and Order?: Legislative Process and Executive

Outcomes in Enacting the Anti-Terrorism Act (No 2) 2005 (Cth)’ (2007) 10 Flinders

Journal of Law Reform 17

Keiran Hardy and George Williams, ‘What is “Terrorism”? Assessing Domestic

Legal Definitions’ (2011) 16(1) UCLA Journal of International Law and Foreign

Affairs 77

Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy

(UNSW Press, 2004)

Emily Long, ‘The Australian Social Inclusion Agenda: A New Approach to Social

Policy?’ (2010( 45(2) Australian Journal of Social Issues 161

Andrew Lynch, ‘Legislating with Urgency: The Enactment of the Anti-Terrorism Act

[No 1] 2005’ (2006) 31 Melbourne University Law Review 747

Andrew Lynch, ‘The Impact of Post-Enactment Review on Anti-Terrorism Laws:

Four Jurisdictions Compared’ (2012) 18(1) Journal of Legislative Studies 63

Andrew Lynch and Nicola McGarrity, ‘Counter-Terrorism Laws: How Neutral Laws

Create Fear and Anxiety in Australia’s Muslim Communities’ (2008) 33(4)

Alternative Law Journal 225

Andrew Lynch, Nicola McGarrity and George Williams, ‘Lessons From the History of the Proscription of Terrorist and Other Organisations by the Australian Parliament’

(2009) 13(1) Legal History 25

480 Andrew Lynch, Nicola McGarrity and George Williams, ‘The Proscription of

Terrorist Organisations in Australia’ (2009) 37(1) Federal Law Review 1

Nicola McGarrity, ‘Review of the Proscription of Terrorist Organisations: What Role for Procedural Fairness?’ (2008) 16(1) Australian Journal of Administrative Law 45

Nicola McGarrity, ‘“Testing” Our Counter-Terrorism Laws: The Prosecution of

Individuals for Terrorism Offences in Australia’ (2010) 34(2) Criminal Law Journal

Nicola McGarrity and George Williams, ‘When Extraordinary Measures Become

Normal: Pre-Emption in Counter-Terrorism and Other Laws’ in Nicola McGarrity,

Andrew Lynch and George Williams (eds), Counter-Terrorism and Beyond: The

Culture of Law and Justice After 9/11 (Routledge, 2010) 131

Bernadette McSherry, ‘Expanding the Boundaries of Inchoate Crimes: The Growing

Reliance on Preparatory Offences’ in Bernadette McSherry, Alan Norrie and Simon

Bronitt (eds), Regulating Deviance: The Redirection of Criminalisation and the

Futures of Criminal Law (Hart, 2009) 141

Sharon Pickering et al, Counter-Terrorism Policing and Culturally Diverse

Communities: Final Report 2007 (Monash University and Victoria Police, 2007)

Scott Poynting and Victoria Mason, ‘The New Integrationism, The State and

Islamophobia: Retreat from Multiculturalism in Australia’ (2008) 36 International

Journal of Law, Crime and Justice 230

Scott Poynting and Victoria Mason, ‘“Tolerance, Freedom, Justice and Peace”?:

Britain, Australia and Anti-Muslim Racism Since 11 September 2001’ (2006) 27(4)

Journal of Intercultural Studies 365

481 Kent Roach, ‘The Case for Defining Terrorism With Restraint and Without Reference

to Political or Religious Motive’ in Andrew Lynch, Edwina Macdonald and George

Williams (eds), Law and Liberty in the War on Terror (Federation Press, 2007) 39

Kent Roach, The 9/11 Effect (Cambridge University Press, 2011)

Kent Roach, ‘The Post-9/11 Migration of Britain’s Terrorism Act 2000’ in Sujit

Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press,

2006)

Ben Saul, ‘The Curious Element of Motive in Definitions of Terrorism: Essential

Ingredient or Criminalising Thought?’ in Andrew Lynch, Edwina Macdonald and

George Williams (eds), Law and Liberty in the War on Terror (Federation Press,

2007) 28

Victoria Sentas, Traces of Terror: Counter-Terrorism Law, Policing, and Race

(Oxford University Press, 2014)

Tamara Tulich, ‘Prevention and Pre-Emption in Australia’s Domestic Anti-Terrorism

Legislation’ (2012) 1(1) International Journal of Crim and Justice 52

Clive Walker, ‘The Reshaping of Control Orders in the United Kingdom: Time for a

Fairer Go, Australia!’ (2013) 37 Melbourne University Law Review 143

Justice Anthony Whealy, ‘Terrorism and the Right to a Fair Trial: Can the Law Stop

Terrorism? A Comparative Analysis’ (Speech delivered at the British Institute of

International and Comparative Law, London, April 2010)

George Williams, ‘The Legal Legacy of the War on Terror’ (2013) 12 Macquarie

Law Journal 3

482 George Williams, ‘A Decade of Australian Anti-Terror Laws’ (2011) 35 Melbourne

University Law Review 1136

Legislation:

Anti-Terrorism Act 2004 (Cth)

Anti-Terrorism Act (No. 2) 2005 (Cth)

Australian Security Intelligence Organisation Act 1979 (Cth)

Aviation Transport Security Act 2004 (Cth)

Border Security Legislation Amendment Act 2002 (Cth)

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth)

Customs Act 1901 (Cth)

Independent National Security Legislation Monitor Act 2010 (Cth)

National Security Legislation Amendment Act 2010 (Cth)

Security Legislation Amendment (Terrorism) Act 2002 (Cth)

Suppression of the Financing of Terrorism Act 2002 (Cth)

Telecommunications Interception Legislation Amendment Act 2002 (Cth)

Cases:

Khazaal v R [2011] NSWCCA 129

483 R v Benbrika (2009) 222 FLR 433

R v Elomar [2010] NSWSC 10

R v Lodhi [2006] NSWSC 571

R v Lodhi [2006] NSWSC 691

R v Thomas [2006] VSCA 165

R v Ul-Haque (2007) 177 A Crim R 348

CHAPTER FOUR: CLASSICAL COUNTER-INSURGENCY AND THE

MALAYAN EMERGENCY

Ian F W Beckett, ‘The British Counterinsurgency Campaign in Dhofar 1967-75’ in

Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern Warfare

(Osprey, 2008) 175

Huw C Bennett, Fighting the Mau Mau: The British Army and Counter-Insurgency in the Kenya Emergency (Cambridge University Press, 2012)

Huw Bennett, ‘The Other Side of the COIN: Minimum and Exemplary Force in

British Army Counterinsurgency in Kenya’ (2007) 18(4) Small Wars & Insurgencies

638

Didier Bigo and Emmanuel-Pierre Guittet, ‘Northern Ireland as Metaphor: Exception,

Suspicion and Radicalization in the “War on Terror”’ (2011) 42(6) Security Dialogue

483

484 Daniel Branch, ‘Footprints in the Sand: British Colonial Counterinsurgency and the

War in Iraq’ (2010) 38(1) Politics & Society 15

Hal Brands, ‘Reform, Democratization, and Counter-Insurgency: Evaluating the US

Experience in Cold War-ear Latin America’ (2011) 22(2) Small Wars & Insurgencies

290-321

David Cesarani, ‘The War on Terror That Failed: British Counter-Insurgency in

Palestine 1945-1947 and the “Farran Affair”’ (2012) 23 (4/5) Small Wars &

Insurgencies 648

Helena Cobban, ‘The Role of Mass Incarceration in Counterinsurgency: A Reflection

on Caroline Elkins’s Imperial Reckoning in Light of Recent Events’ (2006) 96

Radical History Review 112

Leon Comber, Malaya’s Secret Police 1945-60: The Role of the Special Branch in the

Malayan Emergency (Monash Asia Institute and Institute of Southeast Asian Studies,

2008)

Paul Dixon, ‘“Hearts and Minds”? British Counter-Insurgency from Malaya to Iraq’

(2009) 32(3) Journal of Strategic Studies 353

Paul Dixon, ‘“Hearts and Minds”? British Counter-Insurgency Strategy in Northern

Ireland’ (2009) 32(3) Journal of Strategic Studies 445

David French, ‘Nasty Not Nice: British Counter-Insurgency Doctrine and Practice,

1945-1967’ (2012) 23(4/5) Small Wars & Insurgencies 744

David French, The British Way in Counter-Insurgency: 1945-1967 (Oxford

University Press, 2011)

485 David Galula, Counterinsurgency Warfare: Theory and Practice (Praeger Security

International, 1964, 2006 ed).

Heather S Gregg, ‘Setting a Place At the Table: Ending Insurgencies Through the

Political Process’ (2011) 22(4) Small Wars & Insurgencies 644

Karl Hack, ‘Everyone Lived in Fear: Malaya and the British Way of Counter-

Insurgency’ (2012) 23(4/5) Small Wars and Insurgencies 671

Karl Hack, ‘The Malayan Emergency as Counter-Insurgency Paradigm’ (2009) 32(3)

Journal of Strategic Studies 32(3) 383

Matthew Hughes, ‘The Practice and Theory of British Counterinsurgency: The

Histories of the Atrocities at the Palestinian Villages of al-Bassa and Halhul, 1938-

1939’ (2009) 20 (3/4) Small Wars & Insurgencies 528

Frank Kitson, Low Intensity Operations: Subversion, Insurgency, Peace-Keeping

(Faber & Faber, 1971).

Nick Lloyd, ‘The Amritsar Massacre and the Minimum Force Debate’ (2010) 21(2)

Small Wars & Insurgencies 382

Daniel Marston and Carter Malkasian (eds), Counterinsurgency in Modern Warfare

(Osprey, 2008)

Grégor Mathias, Galula in Algeria: Counterinsurgency Practice versus Theory (Neal

Durando trans, Praeger Security International, 2011);

Mark Moyar, A Question of Command: Counterinsurgency from the Civil War to Iraq

(Yale University Press, 2009)

486 John A Nagl, Learning to Eat Soup With a Knife: Counterinsurgency Lessons from

Malaya and Vietnam (University of Chicago Press, 2005)

John Newsinger, British Counterinsurgency: From Palestine to Northern Ireland

(Palgrave, 2002)

Bard E O’Neill, Insurgency and Terrorism: From Revolution to Apocalypse

(Potomac, 2nd ed, 2005)

Bruno C Reis, ‘The Myth of British Minimum Force in Counterinsurgency

Campaigns during Decolonisation (1945-1970)’ (2011) 34(2) Journal of Strategic

Studies 245

Paul B Rich and Isabelle Duyvesteyn (eds), The Routledge Handbook of Insurgency and Counterinsurgency (Routledge, 2012)

Simon Robbins, ‘The British Counter-Insurgency in Cyprus’ (2012) 23(4/5) Small

Wars & Insurgencies 720

Anthony Short, The Communist Insurrection in Malaya: 1948-1960 (Frederick

Mueller, 1975)

Richard Stubbs, Hearts and Minds in Guerrilla Warfare: The Malayan Emergency

1948-1960 (Oxford University Press, 1989)

Richard Stubbs, ‘From Search and Destroy to Hearts and Minds: The Evolution of

British Strategy in Malaya 1948-60’ in Daniel Marston and Carter Malkasian (eds),

Counterinsurgency in Modern Warfare (Osprey, 2008) 101

Robert Thompson, Defeating Communist Insurgency: Experiences from Malaya and

Vietnam (Chatto & Windus, 1974)

487 Rod Thornton, ‘The British Army and the Origins of its Minimum Force Philosophy’

(2004) 15(1) Small Wars & Insurgencies 83.

Mao Tse-Tung, On Guerrilla Warfare (Samuel B Griffiths trans, Illinois University

Press, 2000)

David H Ucko, ‘The Malayan Emergency: The Legacy and Relevance of a Counter-

Insurgency Success Story’ (2010) 10(1/2) Defence Studies 13

CHAPTER FIVE: CONTEMPORARY COUNTER-INSURGENCY AND THE

SURGE IN IRAQ

John Agnew et al, ‘Baghdad Nights: Evaluating the US Military “Surge” Using

Nighttime Light Signatures’ (2008) 40 Environment and Planning 2285

Rusty Barber and Sam Parker, Evaluating Iraq’s Provincial Reconstruction Teams

While Drawdown Looms: A USIP Trip Report (United States Institute of Peace,

December 2008)

Colleen Bell, ‘Hybrid Warfare and Its Metaphors’ (2012) 3(2) Humanity 225

Mark T Berger and Douglas A Borer, ‘The Long War: Insurgency, Counterinsurgency and Collapsing States’ (2007) 28(2) Third World Quarterly 197

Stephen Biddle, Jeffrey A Friedman and Jacob N Shapiro, ‘Testing the Surge: Why

Did Violence Decline in Iraq in 2007?’ (2012) 37(1) International Security 7

British Army, British Army Field Manual: Volume 1, Part 10 – Countering

Insurgency (Army Code 71876, October 2009)

488 Karin Brulliard, ‘“Gated communities” for the war-ravaged’, Washington Post, 23

April 2007

Captain Michael Casiano, ‘The S-4 in a Provincial Reconstruction Team’ (2012)

44(2) Army Sustainment 7

Patrick Cockburn, ‘Who is Whose Enemy?’ (2008) 30(5) London Review of Books 14

Council on Foreign Relations, Gen David H Petraeus Report to Congress on the

Situation in Iraq (10 September 2007)

Lieutenant-Colonel Jim Crider and Thomas Ricks, Inside the Surge: One

Commander’s Lessons in Counterinsurgency (Center for a New American Security,

June 2009)

Catherine Dale, Operation Iraqi Freedom: Strategies, Approaches, Results, and

Issues for Congress (Congressional Research Service Report for Congress, 28 March

2008)

Catherine Dale, Operation Iraqi Freedom: Strategies, Approaches, Results, and

Issues for Congress (Congressional Research Service Report, 7-5700, April 2009)

Toby Dodge, ‘The Ideological Roots of Failure: The Application of Kinetic Neo-

Liberalism to Iraq’ (2010) 86(6) International Affairs 1269

Michael Eisenstadt and Jeffrey White, ‘Assessing Iraq’s Sunni Arab Insurgency’

(2006) (May/June) Military Review 33

Peter D Feaver, ‘The Right to Be Right: Civil-Military Relations and the Iraq Surge

Decision’ (2011) 35(4) International Security 87

489 Moritz Feichtinger, Stephan Malinowski and Chase Richards, ‘Transformative

Invasions: Western Post-9/11 Counterinsurgency and the Lessons of Colonialism’

(2012) 3(1) Humanity 35

Jonathan Gilmore, ‘A Kinder, Gentler Counter-Terrorism: Counterinsurgency,

Human Security and the War on Terror’ (2011) 42(21) Security Dialogue 21

Roberto J Gonzalez, American Counterinsurgency: Human Science and the Human

Terrain (Prickly Paradigm Press, 2009)

Nils Gilman, ‘Preface: Militarism and Humanitarianism’ (2012) 3(2) Humanity 173

Daniel Green, ‘The Fallujah Awakening: A Case Study in Counter-Insurgency’

(2010) 21(4) Small Wars & Insurgencies 591

Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The Road to Abu

Ghraib (Cambridge University Press, 2005)

Russel L Honore and David V Bosleto, ‘Forging Provincial Reconstruction Teams’

(2007) 44 Joint Force Quarterly 85

Human Terrain System, Human Terrain Team Handbook (Human Terrain System,

September 2008)

John D Kelly et al (eds), Anthropology and Global Counterinsurgency (University of

Chicago Press, 2010)

Robert E Kemp, ‘Provincial Reconstruction Teams in Eastern Afghanistan: Utility as a Strategic Counterinsurgency Tool’ (2011) 91(5) Military Review 28

David J Kilcullen, ‘Countering Global Insurgency’ (2005) 28(4) Journal of Strategic

Studies 597

490 David Kilcullen, Counterinsurgency (Oxford University Press, 2010)

David Kilcullen, ‘Counter-insurgency Redux’ (2006/7) 48(4) Survival 111

David Kilcullen, Out of the Mountains: The Coming Age of the Urban Guerrilla

(Oxford University Press, 2013)

David Kilcullen, The Accidental Guerrilla: Fighting Small Wars in the Midst of a Big

One (Oxford University Press, 2009)

Dave Kilcullen, ‘The Urban Tourniquet: “Gated Communities” in Baghdad’, Small

Wars Journal Blog Post, 27 April 2007

Jacob Kipp et al, ‘The Human Terrain System: A CORDS for the 21st Century’ (2006)

86(5) Military Review 8

Christopher J Lamb et al, ‘The Way Ahead for Human Terrain Teams’ (2013) 70(3)

Joint Force Quarterly 21

Major General Roger Lane and Emma Sky, ‘The Role of Provincial Reconstruction

Teams in Stabilisation’ (2006) 151(3) RUSI Journal 46

George R Lucas, ‘The Morality of “Military Anthropology” (2008) 7(3) Journal of

Military Ethics 165

Carter Malkasian, ‘Counterinsurgency in Iraq: May 2003-January 2010’ in Daniel

Marston and Carter Malkasian, Counterinsurgency in Modern Warfare (Osprey,

2008) 287

Alex Marshall, ‘Imperial Nostalgia, The Liberal Lie, and the Perils of Postmodern

Counterinsurgency’ (2010) 21(2) Small Wars and Insurgencies 233

491 George R Mastroianni, ‘Looking Back: Understanding Abu Ghraib’ (2013) 43(2)

Parameters 53

Montgomery McFate and Steve Fondacaro, ‘Reflections on the Human Terrain

System During the First 4 Years’ (2011) 2(4) PRISM 63

Thomas B Nachbar, ‘The Use of Law in Counterinsurgency’ (2011) 213 Military Law

Review 140

John K Naland, Lessons From Embedded Provincial Reconstruction Teams in Iraq

(United States Institute of Peace, Special Report 290, October 2011)

Justine Pak, ‘Photo Essay: Militarism and Humanitarianism’ (2012) 3(2) Humanity

217

General David H Petraeus, Report to Congress on the Situation in Iraq (8-9 April

2008)

Dena Plemmons and Robert Albro, ‘Practicing Ethics and Ethical Practice: The Case of Anthropologists and Military Humanitarians (2012) 3(2) Humanity 179

Douglas Porch, ‘The Dangerous Myths and Dubious Promise of COIN’ (2011) 22(2)

Small Wars and Insurgencies 239

Jesse P Pruett, ‘The Interagency Future: Embedded Provincial Reconstruction Teams in Task Force Marne’ (2009) 89(5) Military Review 54

Thomas E Ricks, The Gamble: General Petraeus and the Untold Story of Iraq, 2006-

2008 (Allen Lane, 2009)

Edward W Said, Orientalism (Penguin, first published 1978, 2003 ed)

492 Emma Sky, ‘Iraq, From Surge to Sovereignty: Winding Down the War in Iraq’ (2011)

90 Foreign Affairs 117

Special Inspector General for Iraq Reconstruction (SIGIR), Hard Lessons: The Iraq

Reconstruction Experience (SIGIR, February 2009) 300

Special Inspector General for Iraq Reconstruction (SIGIR), Learning From Iraq: A

Final Report from the Special Inspector General for Iraq Reconstruction (SIGIR,

March 2013)

Bernard Stancati, ‘Tribal Dynamics and the Iraq Surge’ (2010) 4(2) Strategic Studies

Quarterly 88

Lieutenant Colonel Jonathan D Thompson, ‘Human Terrain Team Operations in East

Baghdad’ (2010) 90(4) Military Review 76

David H Ucko, The New Counterinsurgency Era: Transforming the US Military for

Modern Wars (Georgetown University Press, 2009)

United States Government Accountability Office, Provincial Reconstruction Teams in

Afghanistan and Iraq (GAO-09-86R, October 2008)

US Army/Marine Corps, Counterinsurgency Field Manual: U.S. Army Field Manual

No. 3-24 – Marine Corps Warfighting Publication No. 3-33.5 (University of Chicago

Press, 2007)

Peter Van Buren, We Meant Well: How I Helped Lose the Battle for the Hearts and

Minds of the Iraqi People (Metropolitan, 2011)

493 CONCLUSION: RETHINKING SMART POWER

Major Ben Connable, ‘All Our Eggs in a Broken Basket: How the Human Terrain

System Is Undermining Sustainable Military Cultural Competence’ (2009) 89(2)

Military Review 57

John E Finn, ‘Sunset Clauses and Democratic Deliberation: Assessing the

Significance of Sunset Provisions in Antiterrorism Legislation’ (2010) Columbia

Journal of Transnational Law 442

Tom Healy, ‘As Much Power as a Word: Hard, Soft, and Smart Power’ (Speech delivered at the Australian Fulbright Symposium, Canberra, 23 August 2013)

Stephen Holmes, The Matador’s Cape: America’s Reckless Response to Terror

(Cambridge University Press, 2007)

Colin H Kahl, ‘COIN of the Realm: Is There a Future for Counterinsurgency’ (2007)

86(6) Foreign Policy 169

David Kennedy, The Dark Sides of Virtue: Reassessing International

Humanitarianism (Princeton University Press, 2005)

Nicola McGarrity, Rishi Gulati and George Williams, ‘Sunset Clauses in Australian

Anti-Terror Laws’ (2012) 33 Adelaide Law Review 308

Stephen M Walt, ‘Where Do Bad Ideas Come From and Why Don’t They Go Away?’

(2011) 184 Foreign Policy 49

494