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  The defence of human rights and the right of resistance

in the area of the war on terror

 

 Professor Bill Bowring

London Metropolitan University

Introduction

History is repeating itself in Britain. Whether it will repeat itself as farce, only time will tell. One thing is certain. Tony Blair and Charles Clarke are trying to put in place the most reactionary legislation in modern times.

The second reading of the Prevention of Terrorism Bill on 26 October 2005 revealed a stark contradiction at the heart of the government’s proposals. During a 75 minute speech, Charles Clarke was adamant on the broad principle that Britain had pioneered many of the modern world’s liberties, but also insisted that Britain would have to “fight for democracy” using unprecedented means to defeat the nihilistic demands of Islamist terrorism[1]. The third term of the syllogism was missing. In order to bring about his desired victory, his “broad principle” will have to be destroyed. When he opened the debate the previous day, he used a chilling phrase. He claimed that opponents of his bill would leave Britain fighting terrorism with “one legal hand tied behind our back”.

In fact, the strong rope which so far binds Mr Clarke is the Human Rights Act 1998, based on the European Convention on Human Rights of 1950. It should be noted that the Convention sets out the basic principles which were considered to be an essential statement of the West’s understanding of essential rights in the context of the Cold War.

We should remind ourselves what is at stake. Not only is Mr Clarke determined to win his new offence of “glorifying terrorism”; he has made it clear that if he cannot get a full 90 days to hold terrorist suspects without charge, then the least he might settle for is 28 days. This would most certainly violate the Convention and the Act. To our shame, Britain would once more have to derogate from her responsibilities under the Convention.

Charles Clarke’s new offence of “glorifying terrorism” will make it a criminal offence to support a “terrorist” movement anywhere in the world. On 11 October, at the Home Affairs Select Committee, he said "I cannot myself think of a situation in the world where violence would be justified to bring about change."[2] . Not far away from the spot where Charles Clarke was speaking, there is a statue, sword in hand, his back to the Parliament he defended by force, of – Oliver Cromwell.

At the Committee’s meeting, Clarke was asked whether he might have been caught by such legislation as a student politician supporting Nelson Mandela's struggle against apartheid in South Africa. He plainly regarded the question as impertinent. At the second reading debate, John Denham, the Committee’s Chairman raised the following question: “If an Uzbek, living in Uzbekistan, supported the destruction of a statue as a symbol of opposition to the tyrannical regime in that country, they would be guilty of an offence… and liable to prosecution and seven years imprisonment should they come to this country.” Clarke had no coherent answer.

All the anti-colonial movements, all the 20^th Century’s movements for national liberation, must now be re-categorised as “terrorist”.

The UK Anti-Terrorism Legislation

The Terrorism Act 2000 provided the broadest definition in UK history of “terrorism”, and, by an Order made on 29 March 2001 (Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001 (“the Order”)), the first under the Act, 21 organisations were proscribed through provisions which allow for the banning of organisations which the Home Secretary believes are involved in terrorism, or promote or encourage terrorism.[3]

There are severe penalties for membership of or support for such proscribed organisations, although it is notable that no-one has been prosecuted for association with or support for the PMOI. On the contrary, numbers of members of the House of Commons and the House of Lords have demonstratively associated themselves with events protesting about the treatment of the PMOI.

The definition contained in the Act is as follows:

“1. -     (1)     In this Act "terrorism" means the use or threat of action where-

(a)     the action falls within subsection (2),

(b)     the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c)     the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2)     Action falls within this subsection if it-

(a)     involves serious violence against a person,

(b)     involves serious damage to property,

(c)     endangers a person's life, other than that of the person committing the action,

(d)     creates a serious risk to the health or safety of the public or a section of the public, or

(e)     is designed seriously to interfere with or seriously to disrupt an electronic system

(3)     The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4)     In this section-

(a)     "action" includes action outside the United Kingdom,

(b)     a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c)     a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d)     "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5)     In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”

This definition has been subjected to fierce criticism. Statewatch said that the “New definition of "terrorism" can criminalise dissent and extra-parliamentary action.”[4] We also note that it fails to define what precisely it is about “terrorism” which adds anything to ordinary serious crimes. Influencing a government, or even intimidating the population cannot do the job. Otherwise “Age Concern” (which campaigns for the elderly) or football hooligans must be terrorists. In this way the term becomes completely meaningless.

Proscription – terrorist lists

How, we ask, can it then be possible to move to proscribe organisations with any degree of legal certainty, adherence to the rule of law, or proportionality?[5]

The Order was debated in the House of Commons on 13 March 2001 and in the House of Lords on 27 March 2001.  In the debate in the House of Commons, the then Home Secretary, Jack Straw stated that in considering which organisations should be proscribed, he took into account a number of factors including:-

(1)               the nature and scale of the organisation’s activities;

(2)               the specific threat that it poses to the United Kingdom;

(3)               the specific threat that it poses to British nationals overseas;

(4)               the extent of the organisation’s presence in the UK; and

(5)               the need to support other members of the international community in the global fight against terrorism.[6]

It should be noted that the 21 proscribed organisations included Mujaheddin e Khalq. There are now 25 such organisations, including MEK.[7] In relation to the PMOI, the Order states as follows:

“The MeK is an Iranian dissident organisation based in Iraq. It claims to be seeking the establishment of a democratic, socialist, Islamic republic in Iran.  The MeK has not attacked UK or Western interests. There is no acknowledged MeK presence in the UK, although its publication MOJAHED is in circulation here…”

During the two debates in Parliament, many MPs and Peers protested at the inclusion of the PMOI in the list of 21 organisations in the Order.  There was also much concern at the inherent unfairness of 21 different organisations being placed in the Order, with little indication of the reasons for their selection, and MPs and Peers being asked to either accept or reject the entire list.  The Liberal Democrat spokesman, Sir Menzies Campbell stated in the House of Commons debate:

"Does the Secretary of State understand the discomfort that some of us feel at the notion that 21 organisations should appear in the motion that we are debating, and that there has not been an opportunity to deal with each on an individual and separate basis?”[8]

Jeremy Corbyn, MP stated:

“This is a travesty of the way in which such an important and serious issue should be discussed.  Debate is being limited to an hour and half, late at night, with a catch-all 21 different organisations that the Order proposes to ban.  We have been given no opportunity to discuss those organisations in any detail, or to engage in any other form of parliamentary scrutiny of the legislation…The Home Secretary should also tell us…where the list came from.  I am very well aware that the Indian government, the Turkish government, the Sri Lankan government, the Iranian government and undoubtedly many other governments have been constantly pressing the British government to close down political activity in this country by their opponents.[9]

With respect to the complaint about the unfairness of placing 21 organisations in a single list, the PMOI point to the fact that in September 2002 (after the PMOI had been proscribed), 331 MPs, a Commons majority, and 122 Peers declared in a statement, “We the undersigned, support the struggle of the people of Iran and the People’s Mojahedin Organisation to achieve democracy and human rights as an essential part of the defeat of terrorism at home and abroad.”[10]

On 21 October 2002 a Government Minister, Baroness Symons, said, in answer to a parliamentary question: “My Lords, the noble Lord may possibly have misheard me. I said that the National Council of Resistance of Iran undertakes fundraising and propaganda activities on behalf of the Mojahedin-e Khalq - the MeK - and that the MeK is a terrorist organisation proscribed in the UK. We believe that it is proscribed for very good reasons: it publicly acknowledges its responsibility for terrorist actions against government buildings in Iran and carried out a series of mortar bomb attacks in central Tehran in 2000, which resulted in death and injury. It is not the NCRI but the MeK that is proscribed.”[11]

The failed application to the English courts

On 17 April 2002 the High Court (Mr Justice Richards) gave judgment in an application to apply for judicial review by the PKK, PMOI, Nisar Ahmed and others against the Home Secretary.[12] The applicants challenged the proscription of organisations under the Terrorism Act 2000, and the compatibility of the 2000 Act with the Human Rights Act 1998. The power to add an organisation to the list was given in Section 3 (3-5) of the 2000 Act, and “an organisation is concerned in terrorism if it

(a)    commits or participates in acts of terrorism

(b)   prepares for terrorism

(c)    promotes or encourages terrorism, or

(d)   is otherwise concerned in terrorism.

The Act provides for an application to the Home Secretary to remove an organisation from the list. If that application is refused, the applicant may appeal to the Proscribed Organisations Appeal Commission (“POAC”).  According to the judgment, an application for deproscription of the PMOI was made on 4 June 2001, and was refused on 31 August 2001. The refusal was appealed to the POAC. Paragraphs 23 to 36 of the judgment set out in detail the PMOI complaints against the proscription of “Mujaheddin e Khalq”, Lord Lester QC and Rabinder Singh QC, representing the PMOI, took a number of HRA points:

(i)                  infringement of the right to freedom of expression (article 10)

(ii)                infringement of the right to freedom of peaceful assembly and freedom of association (article 11)

(iii)               interference with the right to a good reputation pursuant to article 8

(iv)              arbitrary and discriminatory treatment (article 14)

(v)                lack of due process and procedural unfairness

(vi)              lack of proportionality, and

(vii)             failure to comply with the requirements of legal certainty and “prescribed by law”.

The Court’s decision was that the application for leave should be refused, on the grounds that the applicants, especially the PMOI, should complete their appeal to POAC.  However, Mr Justice Richards stated that in his view the submissions made by the Secretary of State did not meet the real thrust of the challenge to the regime of penalties under the Terrorism Act and that the claims made by the PMOI, as set out above, were arguable.

In the end the POAC proceedings were withdrawn, after the UK and US decision to bomb the PMOI camps on the Iranian border in April 2003.  The PMOI state that this was despite their having taken a series of steps to ensure that they did not become a party to the war.

Indefinite detention without charge

The Terrorism Act 2000 was followed by the Anti-Terrorism, Crime and Security Act 2001, which introduced indefinite detention without trial for foreign nationals.

However, on 16 December 2004, in a blow to the government's anti-terror measures, the House of Lords ruled by an eight to one majority in favour of appeals by nine detainees. The Law Lords said the measures were incompatible with European human rights laws, but Home Secretary Charles Clarke said the men would remain in prison. He said the measures would "remain in force" until the law was reviewed.[13] The nine Law Lords found that Section 23 of the ATCSA 2001, which allows for the indefinite detention without charge or trial of non-British nationals, violated the detainees' human rights because the provisions were disproportionate and discriminatory. The detainees under this legislation have been held under severely restrictive regimes in high security prisons and in a high security psychiatric hospital, one of them is under "house arrest". Concern about their mental and physical health was heightened by the findings of a report -- published on 13 October 2004 -- prepared by 11 Consultant Psychiatrists and one Consultant Clinical Psychologist about the serious damage to the health of eight of the detainees.[14]

On January 26, 2005 the Home Secretary announced his intention to introduce legislation on control orders; however the Government apparently had not yet decided when to introduce the legislation and whether they would also call for a continuance of the detention powers until the new bill on control orders was able to be debated and become law.  On 22 February 2005 the UK Government announced a new policy of control orders, providing a deprivation of liberty to British and foreign nationals, upon an order given by the Home Secretary. Apart from the great controversy as to what constitutes a control order versus house arrest, and how the power of house arrest will be administered, the significant point of debate surrounds authorization of this new power. The Government insists on giving itself the authority to order such a deprivation of liberty. Amnesty International commented that the prevention of terrorism bill makes a mockery of human rights and the rule of law and contravenes the spirit, if not the letter, of the December 2004 Law Lords' judgment. The United Kingdom (UK) Home Secretary Charles Clarke unveiled his proposals for "control orders" which range from tagging to "house arrest" without charge or trial and would apply to UK citizens and foreigners alike. The decision to impose such orders will be taken by the executive alone. The introduction of "house arrest" without charge or trial requires derogations from the European Convention on Human Rights (ECHR) and the International Convention on Civil and Political Rights (ICCPR).

The Government  repealed the Part 4 powers under the Anti-Terrorism, Crime and Security Act 2001 and replaced them with a system of control orders under the Prevention of Terrorism Act 2005 which received Royal Assent on 11 March 2005.[15] The Prevention of Terrorism Act allows for control orders to be made against any suspected terrorist, whether a UK national or a non-UK national, whatever the nature of the terrorist activity (international or domestic). The Home Secretary is required by Section 14(1) of the Act to report to Parliament as soon as reasonably possible after the end of the relevant three-month period on how control order powers have been exercised during that time.

All the men formerly held without charge or trial in British high security institutions have been released and served with 'control orders'. Some of them had been held since December 2001 and still do not know the grounds for their detention.[16]

Five suspects - Abu Qatada and the men known only as E, H, K and Q - were taken from Belmarsh to Colnbrook secure immigration centre in west London earlier.[17] Suspect P, an Algerian who was held at Broadmoor, appeared before Siac judges in person on Friday and was freed after being electronically tagged. The remaining two, Abu Rideh and suspect B, who had also been detained at the high security mental hospital, were freed on Friday evening. An Algerian man known as A was released by Siac on Thursday, while suspect G, being held under house arrest, had his bail conditions relaxed. The former detainees face bail conditions which include:

• Electronic tagging
• A night-time curfew from 1900 to 0700
• A ban on using mobile phones and the internet
• Obtaining permission from the Home Office if they wish to meet anyone outside their home
• Living at an address notified to the Home Office and police, who can search the property without warning
• No visitors unless the Home Office has been notified in advance, except for under-16s
• Notifying the Home Office of any intended departure from the UK, and the port of embarkation
• Bank account restrictions and sending monthly statements to the Home Office.

The courts do have a role in authorising control orders, but the grounds for a judge refusing an order are restricted. On 8 June 2005 the Council of Europe's Commissioner for Human Rights, Alvaro Gil-Robles, said that control orders violate basic rights, a claim ministers deny.[18] The measure effectively places a person under house arrest if the home secretary believes it is necessary.

In his report, Mr Gil-Robles said it did not seem to him that the "weak control" offered by judicial review proceedings satisfied the usual powers for what would be considered criminal charges. "The proceedings, indeed, are inherently one-sided, with the judge obliged to consider the reasonableness of suspicions based, at least in part, on secret evidence, the veracity or relevance of which he has no possibility of confirming in the light of the suspect's response to them. "Quite apart from the obvious flouting of the presumption of innocence, the review proceedings described can only be considered fair, independent and impartial with some difficulty."  The measures could only be made compatible with the European Convention on Human Rights if necessary judicial guarantees were applied to proceedings and there were regular parliamentary reviews of the legislation, he said.

Derogation from the ECHR

It is far from clear that the threat to the United Kingdom since September 11, 2001, has met the high threshold for a public emergency required under article 15 of the ECHR. The government did not base its decision to derogate on the existence of a specific threat. In a statement to parliament on October 15, 2001, the Home Secretary said that “[t]here is no immediate intelligence pointing to a specific threat to the United Kingdom.” Nor has the government convincingly demonstrated why ordinary criminal law measures and existing counter-terrorism legislation—described by the Joint Human Rights Committee as the most “rigorous” in Europe—are insufficient.[19] Unless both conditions are satisfied, derogation is not simply inappropriate, but is also contrary to the U.K.’s obligations under human rights law.

The existence of a public emergency that threatens the life of the nation is a precondition for derogation under the ECHR and ICPPR.[20] The U.K. government has repeatedly asserted that a public emergency within the meaning of both treaties exists in the U.K. While the government plainly has access to classified intelligence, several factors point toward the conclusion that no such emergency has existed at any time in the UK since September 2001.

First, the threshold for the existence of a public emergency is a high one. According to the European Court of Human Rights, which has generally shown itself willing to grant wide discretion (or in legal terms, a “margin of appreciation”) to states in combating terrorism, a public emergency under article 15 is “an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the State is composed.”[21] Second, as the Joint Committee on Human Rights has observed: “No other State party to the [European] Convention or the International Covenant has made such a derogation in the wake of 11 September 2001.”[22] The ICCPR has at least 151 states parties and the ECHR 46 states parties.

Derogation also requires that even where a public emergency exists, any measures taken in breach of suspended human rights obligations must be strictly required by the situation. In particular, the state must establish why it believes that ordinary judicial intervention is not an effective tool for addressing the situation.[23] The U.K. has extensive experience in dealing with terrorism through the courts and has wide-ranging anti-terrorism criminal law provisions, including the Terrorism Act 2000, which allows the police to arrest a person suspected of terrorist activities without a warrant, and permits detention without charge for up to 7 days (compared to a maximum of four days in ordinary criminal cases).[24] 

The U.N. Human Rights Committee has expressed “concern” about the measures contained in the act, which it stressed in December 2001 “may have far reaching effects on rights guaranteed in the Covenant [the ICCPR].”[25] The U.N. Committee on the Elimination of Racial Discrimination has expressed “deep concern” about indefinite detentions under the act, and recommended in December 2003 that the U.K. government “balance [national security] concerns with the protection of human rights and its international legal obligations.” In December 2001, Council of Europe Human Rights Commissioner Alvaro Gil-Robles went further, arguing that “[e]ven assuming the existence of a public emergency, it is questionable whether the measures enacted by the United Kingdom are strictly required by the exigencies of the situation.”[26]

The derogation from the ECHR has been the subject of legal challenge in the U.K. In July 2002, the SIAC considered a challenge to the derogation as a preliminary issue to appeals by nine detainees against their certification as “suspected international terrorists.” SIAC determined that the derogation from article 5(1) was unlawful on the ground that it breached the non-discrimination provision under article 14 of the ECHR, from which the U.K. government had not derogated. Since the derogation was unlawful, the SIAC held that the detention provisions breached ECHR articles 5 and 14. In the words of the judgment: “[a] person who is irremovable cannot be detained or kept in detention simply because he lacks British nationality.”[27]

The SIAC did accept that there was a public emergency within the meaning of article 15 of the ECHR.[28] The court based its decision on classified intelligence material and publicly available evidence. In October 2002, the Court of Appeal heard a cross appeal by both the government and the detainees against the SIAC decisions. The appeal was limited to reviewing potential errors of law. The Court of Appeal reversed SIAC’s finding on discrimination, accepting the government’s arguments that foreign nationals had no right to remain in the U.K., thereby making differential treatment permissible. It also rejected the detainees’ appeal against the SIAC’s conclusion that a public emergency did exist.

The latest Anti-Terror legislation

The latest Terrorism Bill is the UK Government’s reaction to the attacks on London in July 2005. It is obvious that the state is under an obligation to take appropriate steps to protect the lives and safety of people within the United Kingdom. Now that the UK has been subjected to direct terrorist attack, it is inevitable that there be consideration of laws and powers available to agents of the state. However, as so often in the past, there has been a hasty assumption that new legislation must be at least a considerable part of the answer. This section draws from the response of the leading civil liberties protection organisation in the UK, Liberty.[29]

When the draft bill was published towards the end of the summer of 2005 it contained a strict liability offence of glorification of terrorism and allowed for 90 days detention without charge. When published in the House of Commons the glorification offence had been subsumed into the offence of encouragement to terrorism. This applied a test of negligence, rather than criminal responsibility, to statements encouraging terrorism.

At report stage in the House of Commons the Government lost a vote on 90 day detention. A lesser extension of 28 days, proposed by the Labour MP David Winnick, was passed instead. The Government also introduced an amendment to the offence of encouragement of terrorism, introducing a recklessness test to replace the existing negligence test. Despite these changes , there are fundamental concerns over the human rights and civil liberties implications of the Bill. Criminalisation of speech with no intent for others to commit crimes, along with extended detention without charge still have the potential to undermine centuries of democratic tradition in England. They are also likely to be counterproductive and will have a significant impact on race and inter-faith relations and the broad national unity that is essential to the flow of intelligence and other vital aspects of cooperation with the authorities. This is especially true of the 28 daytime limit on pre charge detention. While this is preferable to the 90 day limit originally planned it still doubles the existing limit. Human Rights activists maintain that before any extension can be justified there should be full consideration of what other, more proportionate, measures could be taken to allow the police to deal with the problems

Conclusion

It is clear that the UK’s anti-terror legislation poses grave threats to human rights and civil liberties not only in the United Kingdom, but through the “threat of a bad example”, the whole of the European Union. The recent judgments of the Court of First Instance of the EU’s European Court of Justice of 21 September 2005 in the cases of Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities[30], and Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities[31], show that the resolutions of the UN Security Council are now taken to “trump” European standards for the protection of human rights.

The Court decided as follows in Yusuf:

“In this instance, as is apparent from the preliminary observations above on the relationship between the international legal order under the United Nations and the Community legal order, the Community institutions were required to transpose into the Community legal order resolutions of the Security Council and decisions of the Sanctions Committee that in no way authorised them, at the time of actual implementation, to provide for any Community mechanism whatsoever for the examination or re-examination of individual situations, since both the substance of the measures in question and the mechanisms for re-examination (see paragraphs 309 et seq. above) fell wholly within the purview of the Security Council and its Sanctions Committee. As a result, the Community institutions had no power of investigation, no opportunity to check the matters taken to be facts by the Security Council and the Sanctions Committee, no discretion with regard to those matters and no discretion either as to whether it was appropriate to adopt sanctions visàvis the applicants. The principle of Community law relating to the right to be heard cannot apply in such circumstances, where to hear the person concerned could not in any case lead the institution to review its position.”[32]

While in Kadi it held:

“Last, the Court considers that, in the absence of an international court having jurisdiction to ascertain whether acts of the Security Council are lawful, the setting-up of a body such as the Sanctions Committee and the opportunity, provided for by the legislation, of applying at any time to that committee in order to have any individual case re-examined, by means of a procedure involving both the petitioned government' and the designating government' (see paragraphs 263 and 264 above), constitute another reasonable method of affording adequate protection of the applicant's fundamental rights as recognised by jus cogens.”

The effect of these decisions is to allow considerations of state security to trump human rights standards. In my view, blacklisting an organisation or individual, and freezing their assets, without granting the organisation the right to challenge this blacklisting and freezing, in a court fully satisfying the requirements of Art. 6(1) ECHR, in proceedings in which the factual and legal basis for the blacklisting and freezing is properly and fully, judicially examined, violates the right of access to court as guaranteed by that provision of the Convention.

IAPL 2001