By John Ip
On 15 March 2019, an Australian national living in Christchurch allegedly attacked the Al Noor and Linwood Mosques during Friday prayers, killing 50 people, the youngest only three-years-old, and injuring many more. New Zealand Prime Minister Jacinda Ardern initially referred to the atrocity as an “act of unprecedented violence”, but soon described it as a terrorist attack.
The Christchurch attack exhibited certain classic features of terrorism, which we can take to mean politically motivated violence perpetrated against civilians. Beforehand, the attacker released a document (‘The Great Replacement’, since deemed objectionable by the Chief Censor) that made his ideological motivations clear. Chillingly, he also live-streamed his attack for 17 minutes on Facebook, once again demonstrating the truth of Brian Jenkins’ observation in 1974 that “[t]errorism is theater”.
The terrorism label is therefore apt, and the Prime Minister’s clear communication about the nature of the attack once the facts became clear is commendable — especially since there is at times an observable reluctance on the part of authorities and media to label political violence committed by white perpetrators as terrorism, particularly in the United States. To take one example, media coverage regarding Dylann Roof — a white supremacist who shot and killed nine people, all African-Americans, in a church in South Carolina in 2015 — was notable for the reluctance of various outlets to describe his actions as terrorism.
The Prime Minister’s decisive response to the Christchurch attack has framed the public and media discourse in significant ways — from her refusal to name the attacker, to her wearing of a headscarf when meeting members of the Muslim community, to her unequivocal description of the attack as an act of terrorism. But how the attack is framed in public and political discourse is one thing; how it will be framed in law is another matter.
For example, in the United Kingdom, the 2013 killing of Fusilier Lee Rigby in Woolwich and the attempted bombings of the London transport system on 21 July 2005 are both understood to be terrorist attacks. However, the perpetrators of those attacks were charged and convicted of ordinary criminal law offences — murder and conspiracy to commit murder respectively. Charging these ordinary offences was the only available option in the United Kingdom, because an offence of committing a terrorist act is not to be found in its extensive array of counterterrorism laws.
By contrast, New Zealand does have such an offence in the form of s 6A of the Terrorism Suppression Act 2002 (TSA), which provides that engaging in a terrorist act is an offence punishable by up to life imprisonment. (I focus here on s 6A, which has attracted the most attention, although the terrorist bombing offence under s 7, also punishable by up to life imprisonment, is also a possible option.) Section 6A was added in 2007, in response to a 2005 select committee review of the Act that raised the question of whether there should be such an offence. Hence, in New Zealand, it is possible for the Christchurch attack to be formally treated by the legal system as terrorism.
So will charges under the TSA be laid? As a preliminary procedural point, the Act specifies that any charge under it requires the consent of the Attorney-General. In practice, this decision is handled by the Solicitor-General. Consequently it was the Solicitor-General, who back in 2007, declined to pursue charges under the Act in relation to the infamous Urewera/Operation Eight raids.
There are considerations pointing in both directions regarding whether to pursue terrorism offences. In rough terms, narrower, litigation-focused concerns point in favour of charging ordinary criminal offences — essentially murder, though attempted murder and other more minor charges are possible too — while broader concerns about properly labelling and denouncing the attacker’s conduct point towards charging terrorism offences. Strictly speaking, we are not talking about a choice between one or the other, since both murder charges and terrorism charges could be laid. The choice is really between murder charges on the one hand, or murder charges together with supplementary terrorism charges on the other.
By supplementary I mean that the terrorism charges would be secondary to the murder charges and not make any material difference to the outcome as far as sentencing is concerned. The reasons for this are to be found in New Zealand’s sentencing and parole legislation.
An individual convicted of the offence of engaging in a terrorist act under s 6A would face a maximum penalty of life imprisonment. An individual convicted of a murder presumptively faces a life sentence. So the accused here would be facing a life sentence upon conviction for either offence. The difference emerges in relation to the minimum period of imprisonment (or non-parole period), which refers to the period of time a prisoner must serve before becoming eligible to apply for release on parole — which, of course, is not the same as actually being granted parole. If the Christchurch attacker were to be charged and convicted only of the offence of engaging in a terrorist act under s 6A, then the minimum period of imprisonment would be 10 years. For murder, the minimum period of imprisonment is 10 years, although judges can and do impose longer periods where they consider it warranted. Where the murder involves certain aggravating circumstances — including conviction for multiple counts of murder, commission as part of a terrorist act as defined by the TSA, and calculated or lengthy planning — the minimum non-parole period is 17 years. Given the unprecedented number of victims, the Christchurch attacker, assuming conviction, would in any case likely be looking at a minimum period of imprisonment far longer than that. Indeed, there is the prospect that conviction could result in a sentence of life without the possibility of parole. This option is available as the result of an amendment to the sentencing legislation in 2010 which allows a court, in an appropriate case, to order a sentence of life imprisonment to be served without parole. So, in summary, the sentencing purposes of incapacitation (preventing the attacker from offending further) and retribution (the notion that the offender’s sentence ought to reflect the seriousness of the crimes committed) can already be satisfied by prosecuting and convicting the Christchurch attacker of murder.
Moreover, murder has the benefit of relative familiarity and ease of proof. There has never been a prosecution brought under s 6A of the TSA (or indeed any other TSA provision), whereas prosecutions for murder are brought on a regular basis. Prosecuting the s 6A offence would also require proving more complex elements to the criminal standard of beyond a reasonable doubt. The TSA’s definition of terrorist act is byzantine, but the most likely permutation would require the Crown to prove that the attacker’s actions were intended to cause death or serious bodily injury, that his actions were carried out for the purpose of advancing a political or ideological cause, and that his actions were intended to induce terror in a civilian population. It may very well be possible to prove these elements in this case — my point is only that proving the elements of murder is more straightforward.
The final factor that would tend to favour charging ordinary criminal offences such as murder, and not the offence of engaging in a terrorist act as well, is that the accused has reportedly indicated that he intends to represent himself in court, as is his right. There is the very real possibility that he plans to try and turn his trial into a propaganda vehicle. The trial of Anders Breivik, who killed 77 people in Norway in 2011, stands as an obvious example, particularly as Breivik was reportedly a source of inspiration for the Christchurch attacker. There is the possibility of the accused attempting to use the trial for his own purposes regardless of what he is charged with given that his trial will be public — as it should be, since, to paraphrase Lord Hewart, justice should not only be done, it should also be seen to be done. However, the elements of the charge of engaging in a terrorist act — particularly those relating to his purposes and motivations —are more liable to being appropriated for propagandistic purposes. To some extent, the trial judge and the media can guard against this possibility. The trial judge will be able to exert some control over media coverage by restricting filming in the courtroom. Judges also have statutory power to make orders suppressing reporting about portions of the trial under certain circumstances. And it is to be hoped that the media itself will be aware of the danger of being exploited and made a conduit for propaganda, and temper the race for views and clicks accordingly.
So far, most of what I have said — the applicable penalties, ease of proof and denying the attacker a platform to engage in propagandistic posturing — points in the direction of charging ordinary offences, notably murder, and not charging the offence of engaging in a terrorist act as well. But there are considerations pointing in the other direction. One is an intuitive point about calling a spade a spade. If the Prime Minister and the New Zealand government are labelling the attack a terrorist attack, and if we agree this satisfies our public understanding of what terrorism is, and if there is sufficient evidence that the attack satisfies the legal definition of a terrorist act, then surely the attacker should be charged with the offence that most closely fits what he is alleged to have done.
Indeed, it has been suggested that if terrorism charges were not brought in this case, it would call into question the purpose of the Act. While there is something to this sentiment, I think it goes too far in that it overlooks other reasons why the TSA exists. The rationale for much of counterterrorism law, as David Anderson, the United Kingdom’s former Independent Reviewer of Terrorism Legislation put it, is to allow the government to “defend further up the field”. This body of law, including the special terrorism offences that it creates, is thus often preventive in orientation. This can be seen as well, I suggest, in the TSA’s definition of a terrorist act. As noted earlier, an act qualifies as a terrorist act if it is intended to cause certain outcomes (such as death or serious injury to people), is carried out for the purpose of advancing certain causes, and is done with certain intentions (for example, to induce terror in a civilian population). “Carried out” in relation to a terrorist act is further defined in the TSA as including planning, preparation, and attempting to carry out the act. All of this suggests that one can commit a terrorist act for the purposes of the TSA without an attack actually coming to fruition. If the attacker had been stopped before being able to carry out his plans, then having the charge of engaging in a terrorist act available would, in this scenario, have been significant.
There is another (and I think stronger) argument for charging the s 6A offence in addition to murder charges. As alluded to earlier, academic accounts of terrorism (and there are many) emphasise that terrorism involves a communicative dimension, whereby the violence is a form of expression intended for a wider audience. And in this case that audience most obviously includes other Muslims in New Zealand. Charging the attacker with engaging in a terrorist act would properly acknowledge the harm caused to the Muslim community as well as to the victims who survived.
To conclude, what is at stake is not the destination: assuming conviction, the Christchurch attacker faces life imprisonment and is unlikely to be released anytime soon (if ever). This will be true whether murder charges are supplemented with charges of engaging in a terrorist act or not. But the journey to this destination may look different depending on whether terrorism charges are brought. Ensuring the most efficient and low-key path to a successful prosecution points to only charging ordinary offences such as murder; proper labelling and denunciation of the attacker’s actions points to including terrorism charges. But given the unprecedented nature of the events of 15 March, this may well be a trade-off that needs to be made.
John Ip is a Senior Lecturer in Law at the University of Auckland.