Effect of the War on Terror on Human Rights

Hiding behind the “War on Terror”, The Governments licence to abandon Human Rights.

A new dawn of terrorism challenged the world with the catastrophic events on 11^th September 2001[1] in America. Following the attacks in the President, George W Bush, declared a ‘War on Terror’.[2]

In declaring War, President Bush widened the parameters available to combat the terrorists. Wars had been fought between conventional military forces in a defined theatre of operation. On 29^th September Bush said “Our war on Terror will be much broader than the battlefields and the beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan.”[3] This choice of words discounted the notion of the term ‘War’ was not political rhetoric. Metaphoric wars have been fought on drugs, racism and the like when the word ‘war’ in these cases was used to drum up populist support. Bush meant a real war, with the associated loosening of the Rule of Law that binds a government.

When a sovereign state is at war, International Humanitarian law governs a States conduct. Killing enemy combatants regardless of any imminent threat. If combatant is captured, holding them without trial until the war is declared over. By declaring a war, Bush and his allies have granted themselves extraordinary powers, but have also eroded the most basic of human rights.

The United Kingdom and the United States enjoy a Special Relationship. In 1946 Winston Churchill coined the phrase to describe the exceptional close relationship between the two countries. After the 9/11 attacks Tony Blair the British Prime Minister, said “This is not a battle between the United States of America and terrorism, but between the free and democratic world and terrorism. We therefore here in Britain stand shoulder to shoulder with our American friends in this hour of tragedy, and we, like them, will not rest until this evil is driven from our world.”[4]

A fundamental responsibility of government is to protect its people. Therefore, it is essential they maintain an level of readiness to terror attacks, has legislation to prevent attacks and sanction suspectes. Despite the Good Friday agreement[5], which saw the start of the peace process in Northern Ireland, the Government still passed the first major piece of anti-terror legislation for the UK, the Terrorism Act 2000 (TA2000).  Section 1 of this act defines terrorism[6] and whilst at the home office, Tony McNulty MP said the definition is “comprehensive and effective….” He claimed that “there is no evidence that the broadness of the definition has caused problems in the way it has operated”[7] However, it has received strong criticism from a wider political spectrum and academics. A report by Essex University entitled “The Rules of the Game” it describes the definition as wide and it “leaves room for political bias and could be used to prosecute people active in legitimate social or political movements who are exercising their rights”[8]

The TA2000 detracted from the normal Rule of Law. Section 41 of the Act provided the police with the power to arrest and detain a person without charge for up to 48 hours if suspected of being a terrorist.[9]This period of detention could be extended to up to seven days. Ordinarily in criminal law, suspects had to be charged within 24 hours of detention or be released[10].

The stop and search powers afforded under section 44[11] TA2000 were highly controversial. They enabled the police and the Home Secretary to define any area in the country as well as a time period. Wherein, they could stop and search any vehicle or person and seize “articles of a kind which could be used in connection with terrorism”. Unlike other stop and search powers Section 44 did not require the police to have “reasonable suspicion” to search an individual. In Gillan and Quinton v United Kingdom[12] the European Court of Human Rights (ECHR) ruled that this stop and search power violated Article 8[13]  of the European Convention on Human Rights.

Following 9/11 the Government built on the TA2000, which was already ‘widely regarded as the most rigorous in Europe’[14], by introducing the Anti-Terrorism, Crime and Security Act 2001 (ATCSA2001). This act was criticised by the Select Committee for Home Affairs for the speed it was introduced.[15]

ATCSA2001 passed through parliament with the Home Secretary claiming that a state of “public emergency threatening the nation” existed, necessitating a derogation from Article 5 of the ECHR[16] and Article 9 of the International Covenant on Civil and Political Rights[17]. The derogation was being made under Article 15(1) of the ECHR; This refers to ‘war or other public emergency threatening the life of the nation’. In the Note Verbale made to the Secretary General of the Council of Europe on 18^th December 2001[18] the government cited the UN Security Councils’ resolutions 1368(2001)[19] and 1373(2001)[20]. These resolutions ‘required all states to take measures to prevent the commission of terrorist attacks, to include denying safe haven to those who finance, plan, support or commit terrorist attacks’.

An Article 5(1)(f) derogation was sought, enabling the continued detention of suspected terrorists, or those with links to terror. It was not possible for these individuals to be bought to a criminal trial. There was insufficient evidence for the high standard of proof needed to secure a criminal conviction, or the evidence was obtained in a manner that its disclosure would be of detriment to the intelligence services.  Logically, the solution came under the Immigration Act 1971. It allows for the deportation of those who are a threat to national security for cases where there is insufficient admissible evidence for prosecution but the ECHR had ruled in Chahal[21] that consideration of article 3 of the ECHR[22] is absolute in expulsion cases:

“…whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3… if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion… In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.”[23]

The wording of Article 15 is explicit in that for a derogation there had to be a ‘threat to the nation’ During the limited parliamentary passage of ATCSA2001, a brief exchange was noted regarding the validity of the derogation. When the backbench MPs questioned how the life of the nation was a threat, the retort from the executive was sharp and swift. Minister Beverley Hughes referred to the UN resolutions and the doubting of the need of the derogation in the circumstances as an ‘extraordinary’ question to ask.[24] Given the UK’s close and unwavering relationship with the USA and the International outrage following the 9/11 attacks it would have been inconceivable for a MP to publically denounce the wishes of the Home Secretary. The 1997 UK general election had produced a landslide victory for the Labour party[25] so the Blair administration had no opposition to the implementation of the act.

During the whole of the parliamentary process there was no mention of a specific threat to the UK. Lawless v Ireland[26] defined the circumstances for a derogation to be a ‘threat to the organised life of the community of which the state is composed’[27].

It is notable that there is no requirement for the member state to disclose what the threat is. It is just taken in good faith. Traditionally the ECHR protects against ’naked, bad faith abuse of power’[28] However, in protecting human rights the European Court also has to deal with restrictions imposed, which whilst impacting disproportionately on the individual, were imposed in good faith[29].

Following ATCSA2001 receiving Royal Assent the Home Secretary was empowered under Part 4 to certify any foreign national as a “suspected international terrorist”. This wording is significant as UK nationals cannot be detained under immigration powers. Indefinite detention without trial on the basis of criminal law powers would be incompatible with international human rights and domestic law, even where a public emergency existed. However, Article 14 ECHR requires there be no discrimination in the application of human rights on any ground.

Sixteen Muslim men were detained indefinitely as suspected international terrorists. Of these, one man (M) was released by SIAC after 16 months in Belmarsh Prison, as it found the evidence unreliable. Another man (D) was released as the government found new evidence that he no longer posed a threat. Two others chose to return to their country of origin.

The legislation provided that a person held under these provisions could have their case reviewed by the Special Immigration Appeals Commission (SIAC)[30]. This commission was the appeal court for those facing deportation, usually for National Security reasons. These hearings were unusual as the appellant was not allowed to have knowledge of the evidence against them. The judgements are never made public; not even to the appellant, contrary to Article 6 of the ECRH.[31]

Initially, 9 of these men took their case to the SIAC, which found that the derogation from article 5(1) was unlawful on the grounds that it breached the non-discrimination provision under article 14 of the ECHR, from which the U.K. government had not derogated. The SIAC held that the detention provisions breached ACHR articles 5 and 14, ‘A person who is irremovable cannot be detained or kept in detention simply because he lacks British nationality’[32]. The SIAC did uphold that there was a public emergency within the meaning of article 15.[33]

This decision was reversed in the Court of Appeal in October 2002. Subsequently it was appealed by the detainees and in a landmark ruling in the House of Lords that became known as the Belmarsh Case[34] The Law Lords accepted  7:2 that the detention was lawful, but incompatible with the ECHR because it discriminated between nationals and foreign nationals (Article 14).  It was only Lord Hoffman who whilst dissenting still allowed the appeal. His reasoning was based on the ‘threat to the life of the nation. He stated

‘This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.’[35]

The ruling from the House of Lords did not declare ATCSA2001 as illegal. Its ruling implied that if it didn’t discriminate it would have been legal to detain on an indefinite basis, detain without proof of any crime, detain on a suspicion, and detain without the detainee knowing either the case or the evidence against him.

New Labour’s flagship Human Rights Act[36] was heralded by Lord Irving as ‘major significance protecting the individual citizen against erosion of liberties’[37] The ATCSA2001 was the first significant test of the government’s commitment to this. Despite its apparent loss in the courts, and abandoning the act in favour of the Prevention of Terrorism Act 2005 (PTA2005) It was not a triumph for Human Rights.

PTA2005 introduced control orders. control on an indefinite basis, control without proof of any crime, control on the basis of a reasonable suspicion, and control without the controlee having to know either the case or the evidence against him. But, as they applied to both international and UK suspects then they are deemed legal.[38] . Tony McNulty MP, claimed that the courts have ‘endorsed the principles of the control-order regime’[39]

Whilst hiding behind the spectra of a ‘War”, with the judiciary backing, the Government are free to disregard the most principles of the Rule of Law and at best, pay lip service to Human Rights.

Bibliography

BOOKS

• Kelly D. Slapper G. ‘Sourcebook on English Legal System’ Routledge 2012

JOURNALS

• Blick A, Choudhury T and Weir S, “The Rules of the Game -a report by Democratic Audit’ Human Rights Centre, University of Essex, for the Joseph Rowntree Reform Trust”. March 2007
• Mahoney, P. “Marvelous Richness of Diversity or Invidious Cultural Relativism?” Human Rights Law Journal. Vol. 19, No. 1 1998

GOVERNMENT PUBLICATIONS

• Lord Carlile of Berriew “The Definition of Terrorism a Report by Lord Carlile of Berriew Q.C. Independent Reviewer of Terrorism Legislation” HM Government. March 2007
• 2001 (44) Yearbook of the European Convention on Human Rights
• Joint Committee on Human Rights, Second Report (Anti-Terrorism, Crime and Security Bill) (2001-02) (HL 37, HC 372)
• HC debates vol. 375, col 127, 19th November 2001

NEWSPAPERS

• https://www.theguardian.com/politics/2007/dec/24/terrorism.world?INTCMP=SRCH accessed 13th May 2017

WEBSITES

• http://www.history.com/topics/9-11-attacks
• https://en.wikipedia.org/wiki/Good_Friday_Agreement
• ‘Q&A: Secret court explained’ http://news.bbc.co.uk/1/hi/uk/3666235.stm 28th April 2004, accessed 9th May 2017
• http://www.ukpolitical.info/1997.htm accessed 8th May 2017

LEGISLATION

• Police and Criminal Evidence Act 1984
• Misuse of Drugs Act 1971
• Terrorism Act 2000
• Anti-Terrorism, Crime and Security Act 2001
• Human Rights Act 1998
• ICCPR 1966: UN General Assembly res 2200A(XXI)

CASES

• Gillan and Quinton v. United Kingdom (2010) 50 EHRR 45
• Chahal V United Kingdom (1996) 23 EHRR 413
• Lawless v Ireland (no.3) ECHR 1 July 1961
• A and Others V Secretary of State for The Home Department [2004] UKHL 56
• SIAC, A, X and Y and others v. Secretary of State for the Home Department, para. 94.
• Secretary of State for the Home Department (Respondent) v. MB (FC) (Appellant)
• Secretary of State for the Home Department (Respondent) v. AF (FC) (Appellant) (Civil Appeal from Her Majesty’s High Court of Justice) Secretary of State for the Home Department (Appellant) v. AF (FC) (Respondent) (Civil Appeal from Her Majesty’s High Court of Justice) [2007] UKHL 46

OTHER

• Bush G.W. Radio Address of the president to the Nation 29th September 2001
• Blair T. Statement to the Nation 12th September 2001. Full transcript http://news.bbc.co.uk/1/hi/uk_politics/1538551.stm
• Bush G.W. Address to the Joint Session of the 107th Congress 20th September 2001

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[1] see http://www.history.com/topics/9-11-attacks

[2] Bush G.W. Address to the Joint Session of the 107th Congress 20^th September 2001

[3] Bush G.W. Radio Address of the president to the Nation 29^th September 2001

[4] Blair T. Statement to the Nation 12^th September 2001. Full transcript http://news.bbc.co.uk/1/hi/uk_politics/1538551.stm

[5] see https://en.wikipedia.org/wiki/Good_Friday_Agreement

[6] http://www.legislation.gov.uk/ukpga/2000/11/section/1

[7] Lord Carlile of Berriew “The Definition of Terrorism a Report by Lord Carlile of Berriew Q.C. Independent Reviewer of Terrorism Legislation” HM Government. March 2007

[8] Blick A, Choudhury T and Weir S, “The Rules of the Game -a report by Democratic Audit, Human Rights Centre, University of Essex, for the Joseph Rowntree Reform Trust”. March 2007

[9] http://www.legislation.gov.uk/ukpga/2000/11/section/41

[10] Section 1 Police and Criminal Evidence Act 1984, Section 23 Misuse of Drugs Act 1971

[11] http://www.legislation.gov.uk/ukpga/2000/11/section/44

[12] Gillan and Quinton v. United Kingdom (2010) 50 EHRR 45

[13] Article 8 provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”.

[14] Joint Committee on Human Rights, Second Report (Anti-Terrorism, Crime and Security Bill) (2001-02) (HL 37, HC 372) para 30.

[15]https://www.publications.parliament.uk/pa/cm200102/cmselect/cmhaff/351/35104.htm#a2 para 11.

[16] Article 5 provides the right to liberty and security, subject only to lawful arrest or detention under certain other circumstances, such as arrest on suspicion of a crime or imprisonment in fulfilment of a sentence. The article also provides the right to be informed in a language one understands of the reasons for the arrest and any charge against them, the right of prompt access to judicial proceedings to determine the legality of one’s arrest or detention and to trial within a reasonable time or release pending trial, and the right to compensation in the case of arrest or detention in violation of this article.

[17] ICCPR 1966: UN General Assembly res 2200A(XXI)

[18] 2001 (44) Yearbook of the European Convention on Human Rights 20

[19] for full text see https://documents-dds-ny.un.org/doc/UNDOC/GEN/N01/533/82/PDF/N0153382.pdf?OpenElement

[20] for full text see https://documents-dds-ny.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement

[21] Chahal V United Kingdom (1996) 23 EHRR 413, 74

[22] Article 3 prohibits torture, and “inhuman or degrading treatment or punishment. is an absolute obligation. There are no circumstances which permit a state to subject a person to torture or to inhuman or degrading treatment or punishment and it is not possible to derogate from it under Article 15.

[23] supra. 21 para. 79

[24] HC debates vol. 375, col 127, 19^th November 2001

[25] http://www.ukpolitical.info/1997.htm accessed 8th May 2017

[26] Lawless v Ireland (no.3) ECHR 1 July 1961

[27] ibid. para.28

[28] Mahoney, Paul. “Marvelous Richness of Diversity or Invidious Cultural Relativism?” Human Rights Law Journal. Vol. 19, No. 1 1998, para.4

[29] ibid.

[30] for a brief overview see ‘Q&A: Secret court explained’ http://news.bbc.co.uk/1/hi/uk/3666235.stm 28^th April 2004, accessed 9^th May 2017

[31] Article 6 ECHR see http://www.legislation.gov.uk/ukpga/1998/42/schedule/1

[32] SIAC, A, X and Y and others v. Secretary of State for the Home Department, para. 94.

[33] Ibid. para. 35

[34]A and Others V Secretary of State for The Home Department [2004] UKHL 56

[35] ibid. para. 96

[36] Human Rights Act 1998 ‘Bringing Rights Home’

[37] Kelly D. Slapper G. ‘Sourcebook on English Legal System’ page 70

[38] Secretary of State for the Home Department (Respondent) v. MB (FC) (Appellant)

Secretary of State for the Home Department (Respondent) v. AF (FC) (Appellant) (Civil Appeal from Her Majesty’s High Court of Justice) Secretary of State for the Home Department (Appellant) v. AF (FC) (Respondent) (Civil Appeal from Her Majesty’s High Court of Justice) [2007] UKHL 46

[39]https://www.theguardian.com/politics/2007/dec/24/terrorism.world?INTCMP=SRCH accessed 13^th May 2017