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Combating international terrorism : a study of whether the responses by the UK and US to the events of… Walewski, Paul M. A. 2004

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COMBATING INTERNATIONAL TERRORISM: A STUDY O F W H E T H E R T H E R E S P O N S E S B Y T H E U K A N D US T O T H E E V E N T S O F 9/11 A R E C O M P A T I B L E W I T H RESPECT FOR F U N D A M E N T A L H U M A N RIGHTS. by  P A U L M.A. W A L E W S K I LL.B.(Hons), Southampton, United Kingdom, 2003 A THESIS S U B M I T T E D IN P A R T I A L F U L F I L M E N T O F T H E R E Q U I R E M E N T S FOR T H E D E G R E E O F M A S T E R O F LAWS (LL.M.) in T H E F A C U L T Y O F G R A D U A T E STUDIES (University of British Columbia; School of Law; LL.M.) We accept this thesis as conforming to the required standard  T H E U N I V E R S I T Y O F BRITISH C O L U M B I A April 2004 © Paul Michael Antoni W A L E W S K I , 2004  Library Authorization  In presenting this thesis in partial fulfillment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  Name of Author (please print)  Title of Thesis: COHfv/tT(f\Ju  Department of  '  Date (dd/mm/yyyy)  mVttl/f\TiON f\L  Uf\'v\J  The University of British Columbia Vancouver, BC Canada  3>  T^$XC>£l£'M  Year:  % ft Qru&y  ZOO <-j^  ABSTRACT O n Tuesday 11 September 2001, four commercial planes were hijacked by terrorists. One hijacked passenger jet leaving Boston, Massachusetts crashed into the north tower o f the W o r l d Trade Centre at 8.45 a.m. setting the tower o n fire. Eighteen minutes later, a second hijacked akliner, United Airlines Flight 175 from Boston, crashed into the south tower o f the W o r l d Trade Centre and exploded. Later that morning both the north and south towers collapsed, plummeting into the streets below. A t 9.43 a.m., a third hijacked airliner (American Airlines Flight 77) crashed into the Pentagon sending up a huge plummet o f smoke. A portion o f the building later collapsed. A t 10.10 a.m. a fourth hijacked airliner (United Airlines Flight 93) crashed into Somerset County, Pennsylvania, south-east o f Pittsburgh. The crashing o f these hijacked airliners into buildings and o n land were the worst terrorist attacks i n the history o f the United States. They led to the loss o f thousands o f innocent lives and damaged property running into billions o f dollars. The attacks were heralded as not only terrorist attacks on the U S , but also an attack o n the entire global community. The atrocities led to the most dramatic amendment to anti-terrorism legislation ever known, both within the United States and the United K i n g d o m . The new antiterrorism legislation i n both nations however, has been widely criticised as not being compatible with respect for fundamental human rights, due to its hasty enactment. This thesis analyses the responses and new anti-terrorism legislation i n both countries examining the question: do they deprive international human rights?  ii  TABLE O F CONTENTS  Abstract Table Of Contents Table of Statutory Instruments Table of Cases Acknowledgements  ii iii v vii ix  Chapter I  l  1.1 The Facts Behind, and Immediate Responses by International Organisations to the Events o f 9/11 1 1.2 Fortifying National Security or Preserving Fundamental H u m a n Rights? 5 1.3 A n Introduction to Terrorism and the Problems Surrounding a Consistent Definition 9  Chapter II  14  2.1 Legislation Introduced by the United K i n g d o m Since 9/11 to Combat Terrorism. 14 2.2 The U K ' s Position on Terrorism Prior to 9/11; H o w 9/11 Has Changed Attitudes Towards Terrorism i n Britain F r o m a Predominandy Irish Emphasis to a Wider Appreciation o f the International Scope o f Terrorism i n the Twenty-First Century 16 2.3 Anti-Terrorism, Crime & Security A c t 2001 20 2.4 Is the N e w Anti-Terrorism Legislation Within the U K Compatible W i t h Respect for Fundamental H u m a n Rights? 22 2.5 The Significance o f "Lawless" T o the Current Threat o f Terrorism i n The U . K . . . . 2.6 The Requirement o f Maintaining Consistency and Non-Discrimination 2.7 Relevance o f Article 1 o f the European Convention o n H u m a n Rights (The Right Property) i n Relation to the Current Threat o f Terrorism  29 33 to 34  2.8 Overview o f the United Kingdom's Position on the G l o b a l Threat o f T e r r o r i s m . . 35  Chapter III  37  3.1 Legislation Introduced by the United States Since 9/11 to Combat Terrorism 37 3.2 Understanding the H u m a n Rights System i n the United States 42 3.3 Is the U S A Patriot A c t Compatible W i t h Respect for Fundamental H u m a n Rights? 44  Chapter IV  51  4.1 "Operation Enduring Freedom": The Legality o f the U K and U S Military Response Against Al-Qaeda In Afghanistan Under International L a w 51 4.2 Self-Defence Under Customary International L a w 52 4.3 Applying Article 51 o f the U N Charter to "Operation Enduring Freedom" 55 4.4 Applying the "Nicaragua "Judgement to "Operation Enduring Freedom" and the Right o f Self-Defence 63 4.5 Alternatives to Self-Defence 65 4.6 Overview 66  iii  Chapter V  68  5.1 Is There Justification That Detaining "Unlawful Combatants" and Individuals Suspected o f Terrorist Activity In Guantanamo Bay is an Adequate Response to the G l o b a l Threat o f Terrorism and Consistent with Respect for International H u m a n Rights N o r m s ? 68 5.2 Detainees Rights and Remedies under International L a w 5.2.1 Geneva Conventions 5.2.2 International Covenant o n Civil and Political Rights  72 72 78  5.3 Under W h i c h Jurisdiction do the Guantanamo Detainees Fall? 80 5.4 Current Legal Challenges to Detention at Guantanamo Bay 84 5.4.1 H a m d i v Rumsfeld 85 5.4.2 Padilla ex rel. N e w m a n v Bush 87 5.4.3 Overview O f H a m d i and Padilla Judgements I n the Context o f the U S Constitution and International L a w Identified Within this Chapter 88 5.5 The U K ' s Position on Guantanamo Bay with Respect to Detainee, Feroz A b b a s i . 9 0 5.6 Overview o f Guantanamo Bay within the Context o f this Thesis... 93  Chapter VI 6.1 Thesis Conclusion  Bibliography  95 95  99  iv  T A B L E OF STATUTORY INSTRUMENTS American Convention on H u m a n Rights "Pact o f San Jose, Costa Rica" 1969 American Declaration o f the Rights and Duties o f M a n 1948 Anti-Terrorism and Effective Death Penalty A c t 1996 (US) Anti-Terrorism, Crime and Security A c t 2001 ( U K ) Civil Authorities (Special Powers) A c t 1922 ( U K ) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987 Convention for the Prevention and Punishment o f Terrorism 1937 Convention for the Suppression o f Unlawful Acts against the Safety o f Civil Aviation 1971 Convention for the Suppression o f Unlawful Acts against the Safety o f Maritime Navigation 1988 Convention for the Suppression o f Unlawful Seizure o f Aircraft 1970 Convention o n Offences and Certain Other Acts Committed on Board Aircraft 1963 Convention on the Physical Protection o f Nuclear Materials 1980 Convention on the Prevention and Punishment o f Crimes against Internationally Protected Persons, Including Diplomatic Agents 1973 European Convention for the Protection o f H u m a n Rights and Fundamental Freedoms 1950 Federal Courts Administration A c t 1992 ( U S ) Foreign Intelligence Surveillance A c t 1978 (US) Geneva Convention for the Amelioration o f the Condition o f Wounded, Sick and Shipwrecked Members o f A r m e d Forces at Sea 1949 Geneva Convention Relative to the Protection o f Civilian Persons i n Time o f War 1949 ... Geneva Convention Relative to the Treatment o f Prisoners o f W a r 1949 H u m a n Rights A c t 1998 International Convention against the Taking o f Hostages 1979 International Convention on the Elimination o f A l l Forms o f Racial Discrimination 1966.. International Convention o n the Suppression o f Terrorist Financing 1999 International Covenant o n C i v i l and Political Rights 1966 Northern Ireland (Emergency Provision) A c t 1996 Offences Against the State A c t 1939 ( U K ) Official Secrets A c t 1911 ( U K ) Omnibus Diplomatic Security and Anti-Terrorism A c t 1986 ( U S ) Prevention o f Terrorism (Temporary Provisions) A c t 1974 ( U K ) Prevention o f Terrorism A c t 1999.(UK) Protocol Additional to the Geneva Convention 1949 Protocol for the Suppression o f Unlawful Acts against the Safety o f Fixed Platforms Located o n the Continental Shelf 1988 United Nations Resolution 56/83 1 June 2001 United Nations Resolution 1333 19 December 2000 United Nations Resolution 1373 28 September 2001 United Nations Resolution 1378 14* November 2001 United Nations Resolution 1383 6* Dcember 2001 United Nations Resolution 3314 14 December 1974 United Nations Resolution 54/164 17 December 1999 United Nations Resolution A / 5 6 / 1 3 October 2001 Rome Statute o f the International Criminal Court 1998 Terrorism A c t 2000 ( U K ) The Anti-Terrorism A c t 1987 (US) st  th  th  th  th  cd  v  United Nations Charter 1945 Uniting and Steengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism ( U S A Patriot) A c t 2001 Universal Declaration o n H u m a n Rights 1948 Vienna Convention on the L a w o f Treaties 1969 Writ o f Habeas Corpus 28 U.S.C. 2241 1994.(US) ,  T A B L E O F CASES  A , X and Y v Secretary of State C A . C i v 1502 (2002). 30 Abbasi (R on application of) v Secretary of State for Foreign & Commonwealth Office E W C A C i v . 1316 [2002] 94, 95, 96 A G O S I v United Kingdom (A/108) (1986) 40 Ahrens v Clark 335 U.S.(1948) Aksoy v Turkey 22 E H R R 553 (1996) Al-Nashif v Bulgaria A p p . N o . 50963/94, E . C t H . R . (2002) Application ofYamashita 327 U.S.(1946) : Belgian Linguistics Case (No 2) 1 E H R R 252 (1968) Braden v 30 Judicial Circuit Court of K y . 410 U.S. (1973) Burns v Wilson 346 U.S. 137,139 (1953) Caldas v Uruguay C o m m N o . 43/1979 U . N . H u m a n Rts. C o m m . , 192 (1983) Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), I C J Rep. (1986) 60, Case Concerning the Air Services Agreement, US v France, 18 R . I . A . A . 416 (1978) Case Concerning the Gabcikovo-Nagymaros Project, Hungary v Slovakia, I C J 1 (1998) Chahal v United Kingdom app.No.22414/93, 23 Eur.H.R.Rep.(1997) Coalition of Clergy v George Walker Bush U.S. Dist.2748 (2002) Cuban American Bar Association v Christopher 43 F J d ^ l l * Cir. 1995) D v N S P C C 1 A l l E R 607 (1977) E x parte Quirin, 317 U.S.(1942) Falklands War R. v Ponting C r i m L . R . 318 (1985) Gaygusuz v Austria (1997) 23 E H R R 364 (1997) th  Greek Case 12 Yearbook E C H R 1 (1969) H a m d i v Rumsfeld 296 F.3d 278, 280 (4 Cir. 2002) Harisiades v Shaughnessy 342 U.S. 580 (1952) Hirota v MacArthur, 338 U.S. 197,198 (1948) Ireland v United Kingdom 2 Eur.H.R.Rep.25, 91 (1978) th  Ireland v United Kingdom 2 Eur.H.R.Rep.91 (1990) Johnson v Eisentrager 339 U.S. 763, 780 (1950) Landinelli Silva v Uruguay (1981) H R C C o m m N o 34/(1978) Lawless v Ireland 1 Eur.H.R.Rep.15 (1961) Libya v United States ICJ 114 (1992) Matthews v Eldridge 424 U.S.319 (1976) Padilla ex rel. Newman v Bush 233 F . Supp. 2d 564 ( S . D . N . Y . 2002) Phillips v United Kingdom paras 35, 53 (2001) Prosecutor v Tadic I C T Y , Appeals Chamber, (1999) Re Al-Fawwaz 1 A l l E R 545 (2002) Ry Express Agency v New York 336 U.S.(1949)  86 36 84 84 40 86 84 51 66 70 70 28 87 85 14 80 13 40  32 89, 92, 94 45 84, 87 32 33, 34 84 34 32, 34, 37 69 50 91, 92, 93 41 67, 68 27 30  Secretary of State v Rehman 1 A l l E R 122 (2002) 27 United States v Altstoetter (The Justice Case) 3 Trials o f W a r Criminals Before the Nuremberg Military Tribunals Under Control Council L a w No.10, at 983-984 (1951). 90 United States v Grimley 137 U.S. 147,150 (1890) 85 United States v Palestine Liberation Organisation 695 F.Supp. 1456 ( S . D . N . Y . 1988). 43 United States v Verdugo-Urquidez 494 U.S. 259,260 (1990) 85 Vll  Woman Mukong v Cameroon C o m m . N o . 458/1991, U N H u m a n Rts. C o m m . , 5 1 Sess., U N D o c C C P R / C / 5 1 / D / 4 5 8 / 1 9 9 1 (1994)  st  51  viii  ACKNOWLEDGEMENTS The opportunity o f pursuing a Masters degree i n L a w at the University o f British Columbia, Vancouver, Canada was an extremely rewarding experience, both personally and academically. I would primarily like to thank my parents for supporting me i n my decision to study overseas, and also for their generous financial support throughout. Academically, I would like to thank my supervisors, Professors Ian TownsendGault and Peter Burns Q C , who advised and critically guided me impeccably whenever approached. I would also like to share my gratitude with both Ian and Charlotte Townsend-Gault for kindly entertaining me o n numerous occasions at their home i n Vancouver, and introducing me to the wonderful organic produce o f Bowen Island. M y thanks also goes to Professor Joel Bakan for supervising the Masters Seminar programme during the academic year, i n which I was invaluably introduced to doctrinal writing styles and techniques. Finally, mention and gratitude should be passed to Professor Alfred D e Zayas, who provided me with his critical comments and was always approachable during his position as the Douglas M c . K B r o w n visiting Professor o f International L a w .  ix  CHAPTER I 1.1 T H E F A C T S B E H I N D , A N D I M M E D I A T E R E S P O N S E S B Y I N T E R N A T I O N A L O R G A N I S A T I O N S T O T H E E V E N T S O F 9/11  The complicated issue o f how to respond to terrorism has not solely arisen due to the attacks on September 11, 2001. F o r more than 35 years, policy makers, lawyers and academics have attempted to develop an effective counter-terrorism model. In developing these principles, experts unanimously agreed that any campaign aimed at combating global terrorism had to adhere to strict liberal democratic principles and the rule o f law. A s British academic, Paul Wilkinson asserts: "the primary objective of any counter-terrorist strategy must be the protection and maintenance of liberal democracy...it cannot be sufficiently stressed that this aim overrides in importance even the objective of eliminating terrorism and political violence as such." In 1  addition, the preservation o f democracy requires, most o f all, unfailing respect o f three o f liberal society's fundamental values: civil liberties, human rights and the rule o f law. W i t h reference to the importance o f human rights i n the context o f this thesis, it is essential to comply with the legal principles established i n important international treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms ( E C H R ) . This requirement was stressed by the United Nations General Assembly i n Resolution 54/164, stating, "all measures to counter terrorism must be in strict conformity with the relevant provisions of international law, including international humanrightsstandards.'* A s a result, liberal democratic nations, such as the United  Kingdom,  who  have  significandy developed  human  rights  standards,  are  responsible o f upholding these rights, even during the gravest o f emergencies.  O n September 11, 2001, four aircraft on internal flights within the United States were seized, causing undoubtedly the most devastating single acts o f terrorism ever to take place, resulting i n the loss o f some 3000 lives. I n addition, the economic repercussions were scarcely calculable. Responsibility o f the attacks were attributed to the al-Qaeda movement, a group regarded by the United States as being accountable for previous attacks against U S targets, including the bombing o f American embassies i n East Africa i n 1998 and on the USS Cole i n Y e m e n i n 2000. Although it was believed that al-Qaeda had members i n numerous states worldwide, the principle base for its operations was Afghanistan. Within days o f the attacks, extensive condemnation ensued worldwide.  1 2  Paul Wilkinson, "Terrorism Versus Democracy: The Liberal State Response", Oxford University Press (2001). UN Doc A/Res/54/164 (1999). 1  Within the United Nations ( U N ) , the General Assembly expressed both empathy and resentment at the attacks, evident i n the immediate drafting o f Resolution A./56/1? September  12 2001, the Security Council additionally drafted Resolution 1368  4  On (the  Resolution), which branded the attacks as "threats to international peace and security" ordering states to join forces to bring the individuals responsible to justice. The Resolution expressed the Security Council's willingness to "take all necessary steps" to respond to the attacks i n accordance with its Charter.  By the end o f September 2001, the Security Council elaborated on the wideranging steps and strategies needed to be implemented to combat international terrorism. This resulted i n the drafting o f Resolution 1373, which imposed duties upon states to suppress the financing o f terrorism and to improve international co-operation i n relation to counter-terrorism measures. Resolution 1373 restated the need to combat terrorism "by all means". Provision was additionally made for the institution o f a Counter-Terrorism Committee, whose duties included the monitoring o f compliance with the Resolution's provisions and to which states were to report, within 90 days, o f the actions they had taken to curtail potential acts o f terrorism.  In addition to the response by the U N , the N o r t h Adantic Treaty Organisation ( N A T O ) equally expressed their condemnation at the attacks. In a statement made on September 12 2001, the N A T O Council indicated that i f the attacks had come from outside o f the United States, they should be considered as an armed attack under Article 5 of the Washington Treaty, warranting recourse to collective action i n self-defence. In support 5  o f this point, following the publication o f evidence holding al-Qaeda responsible for the attacks, N A T O ' s Secretary General, L o r d Robertson, concluded that the attacks were 6  initiated from within Afghanistan, and therefore Article 5 was applicable. Furthermore, he stated that the United States could rely upon "the full support of its 18 NATO  allies in the  campaign against terrorism"? In addition to this, both the U K and United States initiated a  See press release GA/9903, including the adoption of Resolution A/56/1 on the Condemnation of the Terrorist Attacks in the USA. Available at http://www.un.org. Statement by the North Atlantic Council in response to the Terrorist Attacks (12 September 2001) available at http://www.nato.int/docu/pr/2001 /p01.124e.htm. The UK Government's statement on the evidence of responsibility for the terrorist attacks in the United States available at http://www.pm.gov.uk/news.asp?Newsid=2686. Statement by NATO Secretary General (2 October 2001) available at http://www.nato.int/docu/speec. 3  4 5  6  7  2  comprehensive campaign aimed at promoting and sustaining support for a coalition to act against these terrorist actions.  8  Further to the publication o f evidence by N A T O , concluding that al-Qaeda was responsible for the attacks o n September 11 2001, it is evident that the British government followed  suit i n producing such verification. Compiled amongst 9  the literature was  evidence that the al-Qaeda network, headed by Osama Bin Laden, was being protected by the Taliban regime within Afghanistan. Consequendy, calls were made for the Taliban to surrender bin Laden, together with other members o f the al-Qaeda hierarchy. This, however, proved to be to no avail, breaching Security Council Resolution 1267. A s a result, o n 7 October 2001, the U S ambassador to the United Nations, John Negroponte, initiated proceedings under Article 51 of the United Nations Charter o n the Right to Self Defence,  10  resulting in U S -  led military action, entitled Operation Enduring Freedom, which shall be discussed i n Chapter Four o f this thesis. Concerns o n civilian casualty immediately ensued; however, the U K government addressed this fear, by stating, "the Coalition has made every effort to avoid them".  u  A s the Operation progressed, we began to witness the gradual downfall o f the Taliban regime. In light o f this, the U N passed Resolution 1378, o n November 14 2001. This Resolution provided assurance that the U N would assist Afghan nationals i n establishing a multi-ethnic, transitional administration, with the intention o f forming a new government and resulted i n the signing o f the B o n n Agreement , endorsed by the U N Security 12  Council. In addition to the signing o f this Agreement, the Security Council established an International Security and Assistance Force (ISAF), mandated to maintain security within K a b u l , Afghanistan, and its surrounding areas. The Assistance Force was to be led by the U K ; however, the US-led Operation Enduring Freedom was to have overriding authority over the I S A F i n order to avert a conflict o f activities between the two operations. Furthermore, a Military-Technical Agreement, signed o n January 4 2002,  13  was realised i n order to regulate  the affiliation between the I S A F and the Interim Administration, and provided explanation  Description of the activities of the Coalition identified within "Campaign Against Terrorism: A Coalition Update", Coalition Information Centre, available at http://www.fco.gov.uk/Files/Kfile/cicupdate,0.pdf. Publication of evidence available at http://www.pm.gov.uk/files/pdf/culpability_docurnents.pdf. Letter from John Negroponte to the United Nations Security Council President on 7 October '2001 available at http://www3.itu.int/MISSIONS/US/Dai. 8  9  10  Paragraph J: "Response of Secretary of State for Foreign and Commonwealth Affairs to the Foreign Affairs Commit Report on the Foreign Policy Aspects on the War on Terrorism", August 2002 available at: 11  www.lib.gla.ac.uk/Depts/MOPS/Offpub/newaware0203.shtml. S/2001/1154. Available at http://www.operations.mod.uk/isafmta.doc. 12  13  3  o f the status o f I S A F personnel and their respective immunities, most notably protection from arrest or detention. W e can argue that complications arise i n portraying a vivid account o f what has evolved post-September 11 2001, and what techniques may be characterised as constituting a correct and morally acceptable response. A m o n g the ideologies that exist, is that the military and criminal aspects o f the response are variable, with possible gaps and overlaps existing between the two. This is particularly apparent i n considering the legal status o f individuals detained at Guantanamo Bay, which shall be discussed i n Chapter Five o f this thesis, who may be both criminal suspects and prisoners o f war.  The British government has published a report o n its action i n the year after September 11 2001.  14  This document deals with what it perceives as the "campaign"  against terrorism and identifies the U K activity i n its entirety, together with that taken within the international arena. It clarifies that much o f the response to September 11 2001, not only needs new legislation, i n the form o f the Anti-Terrorism, Crime and Security Act 2001 ( A T C S ) , to be analysed within Chapter T w o o f this thesis, but also the requirement o f policy development together with administrative action. Similarly, a considerable part o f the future programme involves detailed international co-operation, a significant element o f which is the continued support for the new regime within Afghanistan. This position brings forth the final question surrounding the legitimacy and legality o f the use o f military force i n Afghanistan, i n the aftermath o f September 11 2001, to be addressed i n Chapter Four.  This thesis not only has the objective o f identifying the responses by the U K and U S to September 11 2001, i n the form o f new legislation, the military deployment i n "Operation Enduring Freedom" and the use o f the Naval Base at Guantanamo Bay, Cuba to detain suspected international terrorists, but aims to clarify the criticism that exists, i n that the responses deprive and disrespect fundamental human rights.  W e do, however, before beginning this study paper, need to ask the question: should certain civil liberties be sacrificed i n order to maintain national security? Moreover: what should take precedence? Preserving individuals' fundamental human rights, or fortifying national security?  14  'The  International  Fight  Against  Terrorism",  available  at  http://www.fco.gov.uk/servlet/FrontPp agename=OpenMarket/XceleratPage&cid=1007029394239&a=Kar ticle&aid=1013618391514. :  :  4  1.2 F O R T I F Y I N G N A T I O N A L S E C U R I T Y O R P R E S E R V I N G F U N D A M E N T A L H U M A N RIGHTS?  After the passing o f the ATCS by the U K parliament i n the wake o f September 11, 2001, L o r d Roker, U K H o m e Office Minister, stated:  "...it [the Bill] strikes a balance between respecting our fundamental liberties and  ensuring that they are not exploited. The problem is that in a tolerant liberal society, if we are not gua  we willfindthat those who do not seek to be a part of our society will use our tolerance and liberalism destroy that society. That is reality. "  15  The argument that subsequendy develops is whether the search for national security i n the war against terrorism, carries a legitimate repercussion under the rule o f law that is the deprivation o f certain fundamental human rights. This view is supported by British H o m e Secretary, D a v i d Blunkett, who, in a speech to Harvard L a w School o n March 8, 2004, entitled "Defending the Democratic State and Maintaining Liberty: Two Sides of the Same Coin?", submitted that:  "...frjhe Universal Declaration of Human Rights...recognises that the most fundamental  humanrightsare those of life, liberty and security ofperson. This impliesfor me that people who are kill  or maimed, bereaved orput in fear by terrorists are stripped, cruelly and arbitrarily, of theirrightsand th security and safety is the underpinning raison d'etre of government."  "...[T]he dichotomy which some individuals seek to establish between therightsofpeople to b  protected against terrorists and theirrightto enjoy traditional liberties is I believe a false one. It is no question, therefore, of choosing betweenrights,but achieving a balance which maintains those rights."  O n balancing the rights and needs o f U K and U S citizens, M r . Blunkett adds:  "...[Ajnd in the same as domestically, we are now talking much more aboutrightsalongside  responsibilities, so we must do the same in the international context. We must not make the mistak thinking too much about purely internationalrightsand too little of duty and responsibility. ...Of course,  at national level, we have institutions to help us achieve this balance between individuals' communiti  the State. And in your own country (US) that also means between the different elements of the State  Hansard Reports, House of Lords, November 27 2001 available at www.parliament.the-stationeryoffice.co.uk/pa/cm200102/ cmhansrd/voOl 1106/debtext/l 1106-05.htm. 15  5  have in mind the image of the mechanisms of a clock — the elements are fixed, the cogs provide movemen and the weights ensure balance. "  16  T o expand upon these views, it can be argued that c o m m o n public interests override those o f the individual, and subsequendy, institutions and codes that support and endorse  human  rights  are under the obligation to make necessary  sacrifices. The  consequences o f introducing draconian legislation, therefore, i n the form o f the ATCS and the Patriot A c t , are that social harmony, through the objective o f combating terrorism, result i n the deprivation or loss o f certain established fundamental human rights norms, suppressing o f the dissident voice.  17  Consequendy, the fundamental right o f freedom o f  speech is disregarded and criticism about the executive may be perceived as being unpatriotic. This, therefore, leads to human rights institutions either being i n favour or i n opposition to the executive, resulting i n a disregard for the rule o f law, by way o f prioritising issues o f terrorism to a lesser extent.  It can be argued that this shift may consequendy cause considerable changes to the criminal process dealing with national security crimes, creating an adverse dual, parallel structure. Furthermore, it may also have a detrimental impact i n the way everyday, ordinary crimes are dealt with by changing established, dominant structures. F o r example, a closed military tribunal may replace the right to a public judicial trial, imposing assigned legal advice rather than counsel o f choice and changing rules o f criminal evidence and procedure, all increasing the likelihood o f conviction.  18  This can be argued, is what exists  with several o f the detainees being held i n Guantanamo Bay, which shall be addressed i n Chapter Five. The judiciary itself is conscious o f the rules they must interpret, however, certain cases suggest that the courts have acted insufficiendy i n testing the State , or have 19  been drawn into an unjust position by the applicable laws.  20  Furthermore, i n situations  involving national security, and i n times o f public emergency, it can be argued there is insufficient examination o f the executive by the judiciary through, for example, the testing  16  "Defending the Democratic State and Maintaining Liberty - Two Sides of the Same Coin?", March 8, 2004 available at:  http://www.homeoffice.gov.uk/docs3/hs_speech_harvard04.html. Richard Posner, "Security Versus Civil Liberties", Adantic Press (December 2001). The success of the prosecution under such adverse conditions is not always guaranteed, however. See Falklands War R. v Ponting, Crim L.R. 318 (1985) involving issues of national security and official secrets arising form the Falklands War. David Leigh, "Betrayed: The Real Story Behind the Matrix Churchill Case", April, 2003, 26 Fordham Int'l LJ. 1193. Official Secrets Act 1911 (UK), Section 2, which offers no public interest defence available at: www.hmso.gov.uk/acts/actsl911/Ukpga_19890006_en_4.htm. 17  18  19  20  6  o f public immunity certificates. A l l o f these examples create a concluding theory that legal 21  formalism remains, however, the sacrifice is the spirit o f the law.  22  We can also argue that i n situations involving terrorism and threats to national security, the media assumes an intransigent position providing the executive with unequivocal support. F o r example, the editor o f the N e w Republic, writing on the events 23  o f September 11, 2001, said: "this Nation is now at war. In such an environment, domestic political dissent is immoral with a prior statement of national solidarity, a choosing of sides.'** Moreover, evidence o f such executive action i n democratic states, can be argued expands the authority o f tyrannical regimes, such as the Taliban, and al-Qaeda, that use acts o f barbaric terrorism, such as those o f September 11, 2001, to their advantage o f commanding and suppressing minority voices and those who condemn the values and actions o f the state.  In discussing the claim o f the executive that an essential balance exists between mamtaining the safety o f the nation and respecting fundamental human rights norms, it is important to acknowledge the views o f Dworkin, who argues that this represents a somewhat false dichotomy. The political n o r m usually advocates that such is the terrorist 25  threat to the nation, fundamental human rights values must be reduced i n order to preserve the safety o f the nation. Hence, safety overrides freedom i n exigent situations. Theoretically, this should assume that once the situation subsists, the freedom that previously existed should be returned to. However, fortifying national security exposes suspected terrorists o f more likely being unjusdy convicted due to the fact that the traditional procedural safeguards associated to the rule o f law, identified earlier, are subject to temporary suspension. Dworkin argues this by suggesting that the majority o f the nation would be willing to accept certain restrictions to civil liberties i n order o f preserving and guaranteeing the security o f the nation:  "...[S]ome of the powers which these Acts give to the police undoubtedly encroach more upon the  individual's civil liberties than people would be prepared to tolerate in normal circumstances. Success  21  See Lord Simon in the judgement in D v NSPCC, 1 All ER 607 (1977) stating that, ".. .if society is disrupted or  overturned by internal or external enemies, the administration ofjustice will itself by one of the casualties. ..as rega security in its strictest sense, a ministerial certificate will almost be regarded as conclusive." 2 2  2 3  Franz Neumann, 'The Rule of Law", (1935), William E. Scheuerman ed. (1996).  Edward W. Said, "Covering Islam: How the Media and the Hxperts Determine How We See the Rest of the World  Columbia University Press (1997). Lewis Lapham, "American Jihad", Harper's January 2002). Ronald Dworkin, 'The Threat to Patriotism", NY Review of Books (February 28, 2002).  2 4 25  7  governments and the general public have accepted this in the past as the necessary price of measures calculated to protect the publicfrom terrorist attack. '*  6  The U K and U S will continue to operate in ways undamaged and unaware by the  new  legislation and politics on terrorism, implemented by their respective executive actions. It can also be argued, that the everyday working-class individuals o f the U K and U S will remain uninvolved and ignorant o f the scope o f the ATCS  and the Patriot A c t in its  relevance and enforcement. Those, however, most likely to be affected by the new, poorer standards o f justice will likely be ethnic minorities, such as Muslims and followers o f Islam, similar to when the Irish living in Britain were victimised during the peak o f the terrorist campaigns instigated by the I R A . Nonetheless, it is these minorities and aliens residing in the U K and U S that will have to deal with the injustices that the ATCS and Patriot A c t impose. Thus, denial o f fundamental rights to these minority individuals, which  are  available to the popular nation, implies a slippery slope that the U K and U S may be faced with. The respective nations should instead concentrate, for the purposes o f national security, on  reducing the  civil and  fortifying  constitutional rights only o f individuals  suspected o f involvement in acts o f terrorism.  Finally, it is once again important to refer to the views o f British H o m e Secretary, D a v i d Blunkett, who  stated, in a discussion document exploring how  best to protect  society from terrorism, while retaining personal freedoms and rights, dated February 25, 2004:  ". ..[AJs Home Secretary, I am the custodian of civil liberties, but I do not own them. How we balance them with security is a matter for the country, not just for Government.... However, it is the  Governments ultimate responsibility to find a fair and effective balance between security and liberty. Th  rights we must balance belong to everyone. Ensuring a successfulfightagainst international terrorism demands we all play our part in getting the balance right.... But we also need to consider whether adequate powers are available to deal with all terror suspects, irrespective of their nationality."  "•••[I] am in no doubt that the terrorism threat remains and the need to have the right legislation in place is greater than ever. The recent attacks in Riyadh, Jakarta and Istanbul and continuing threats, (this speech was made prior to the terrorist attacks in Madrid on March, 11, 2004) illustrate  Supra note 25.  8  the need to address these difficult issues now and debate how best to protect our country from these gen dangers. '  £7  1.3 A N I N T R O D U C T I O N T O T E R R O R I S M A N D T H E P R O B L E M S S U R R O U N D I N G A CONSISTENT DEFINITION  The term "terrorism" is surrounded by ambiguity, as there is n o established definition o f its precise meaning and scope. This is due to the fact that there are varying 28  global views regarding the classification o f terrorist acts and the purpose and motivation surrounding them. While it can be established that there is anti-terrorist legislation , which 29  mainly deals with the granting o f powers o f search, evidence gathering, arrest and detention, there are no consistent definitions o f who a terrorist actually is, and thus can be considered elusive to precise legal definition.  30  Hence, the question lies as to whether it is  possible to distinguish between a terrorist and a freedom fighter, as the famous cliche indicates "one mans terrorist is another man's freedom fighter", which also suggests a subjective perspective to understanding the term "terrorism". W e can argue, therefore, that it is this 31  difficulty that has perhaps most complicated and hindered the fight against terrorism i n international law today.  32  I n domestic law, however, terrorism resists legal definition with  no greater difficulty than other problematic concepts.  33  T h e nature o f terrorism itself  justifies a distinct offence, as it is a particular kind o f violence with repercussions for stable,  27  "Anti-Terrorist Legislation Must Balance Public Protection With Individual Rights", February 25, 2004 available at  http://www.homeoffice.gov.uk/pageprint.asp?item_id=829.  M.C.Bassiouni, "A Policy-Orientated Inquiry Into the Different Forms and Manifestations of International Terrorism." PCIJ Series A/B N° 65 (1988); "there is...no internationally agreed upon methodology for the identification and apprais of what is commonly referred to as "terrorism". Including causes strategies, goals and outcomes of the conduct in those who perpetuate it. There is also no international consensus as to the appropriate reactive strategies of St International Community, their values, goals and outcomes. All of this makes it difficult to identify what is soug prevented and controlled, why and how. As a result the pervasive and indiscriminate use of the often politically conve "terrorism" continues to mislead thisfieldof inquiry." 2 8  29  For example the United Kingdom has the Anti-terrorism, Crime and Security Act 2001 and the USA has  recendy enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act 2001. Wesley K. Wark, "Intelligence Requirements and Anti-Terrorism Legislation", in 'The Security of Freedom", University 3 0  of Toronto Press (2001). It is interesting to note that Irwin Coder suggests this phrase "has not only undermined intellectual inquiry, but its moral relativism.. .has blunted the justificatory basis for a clear and principled counter terrorism law." 31  'Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy", 6 UCLA J. Int'l L. &  Foreign Aff. 89 at 91. 3 2  See Jacqueline Ann Carberry, 'Terrorism: A Global Phenomenon Mandating a Unified International Response", 6  Ind. J. Global Legal Stud. 685 at 695 (1999). Peter Chalk, "West European Terrorism and Counter-Terrorism: The Evolving Dynamic", London: MacMillan Press (1996). 33  9  democratic government.  34  Furthermore, the terrorist engages i n more than anti-social  behaviour; he or she is acting i n a manner calculated to promote social and political change through violent, undemocratic means. A s Michael Reisman acknowledges: 35  "One should resistjumping to conclusions of the irrationality of terrorists, especially in the cross  cultural environments in which terrorism takes place. The means-end rationality and means-end morality the terrorists may be quite differentfrom that of the target, but be cogent nonetheless. '  M  In today's society views on acts o f violence conducted by groups such as the Palestinians, Northern Irish Catholics and members o f Al-Qaeda are variable. Furthermore due to the legal vagueness o f the term "terrorism", the traditional means o f determining guilt, by way o f guilty acts and thoughts, are useless because the guilty act is so ill defined. In addition, the rule o f law requires a clear and precise definition o f terrorism that narrowly delineates when extraordinary legal measures are needed to be taken and which acts need to be oudawed.  37  D u e to the fact that terrorism involves violence and the spreading o f fear,  we can argue that the term covers existing criminal offences such as murder or assault.  38  However, to create a specific act o f terrorism incorporating an ideological element recognises it as a unique criminal phenomenon  having international and politically  systematic implications beyond the actual harmful act i n question.  39  It is interesting to note that between 1936 and 1981 there have been no fewer than 109 legal definitions o f terrorism. One o f the earliest and most prominent definitions was 40  identified i n Article 1(2) o f the Convention for the Prevention and Punishment of Terrorism 1937. Under this Article terrorism was defined as:  ".. .criminal acts directed against a State intended or calculated to create a state of terror in the mind ofparticularpersons, or a group ofpersons or the generalpublic."  Jutta Brunnee, 'Terrorism and Legal Change: An International Law Lesson", Macklem & Roach eds. (2000). Paul R. Pillar, 'Terrorism and US Foreign Policy", Washington DC: Brookings Institution Press at 56-61. (2001). W. Michael Reisman, "International Legal Responses to Terrorism", 22 Hous. J. Int'l L. 3 at 5 (1999). Kent Roach, 'The New Terrorism Offences and the Criminal Law", University of Toronto Press (2001). The New Oxford English Dictionary on Historical Principles, 4 ed., vol. 2 defines terrorism as "the  34 35  36 37  3 8  th  systematic employment of violence and intimidation to coerce a government or community into acceding to spe demands".  Mark S. Zaid, "Combatting International Terrorism into the 21" Century", 2 ILSA J. International & Comparative Law 661 (1996). •KW.Laqueur, "Reflections on Terrorism", 64 Foreign Affairs 86, 88 (1986). 39  10  M o r e recently the United Nations General Assembly established an A d  Hoc  Committee on International Terrorism i n order to attempt to create a collective definition on international terrorism.  41  Furthermore it can be argued that contrasting views regarding the  definition o f terrorism have hampered new efforts in drafting a single treaty dealing with international terrorism. Consequendy, the most effective way for the international community to move forward i n defining terrorism is by considering specific individual aspects within the subject. Hence binding conventions have been adopted i n areas o f aircraft hijacking, hostage-taking  45  42  unlawful acts against the safety o f civil aviation,  and theft o f nuclear materials.  46  43  marine terrorism,  44  However one is still no closer in  understanding a single consistent definition. One must nevertheless acknowledge the fact that in the existing global community it may never be possible to come up with a single conclusive definition. Academics have argued though, that most reasonable and sensible individuals have a basic understanding o f what the term involves, and that it has a core meaning that virtually all definitions recognise. Owen Schachter asserts that terrorism is:  ".. .the threat or use of violence in order to create extreme fear and anxiety in a target group so  to coerce it to meet political (or quasipolitical) objectives of the perpetrators. Such terrorist acts hav international character when they are carried out across national lines or directed against nationals  foreign State or instrumentalities of that State. They also include the conduct defined in the internatio  conventions against hijacking, ariel sabotage, sabotage at sea, hostage taking, and attacks on diploma  other internationally protected persons. Terrorist acts are generally carried out against civilians but they  include attacks on governmental buildings, vessels, planes, and other instrumentalities. The objectives  UN General Assembly Committee on International Terrorism advised on the following definition on International Terrorism (available at http://www.un.org): (1) Acts of Violence and other repressive acts by colonial, racist and alien regimes against peoples struggling for their liberation... (2) Tolerating or assisting by a State the organisation of the remnants of fascist or mercenary groups whose terrorist activity is directed against other sovereign countries; (3) Acts of violence committed by individuals or groups of individuals which endanger or take innocent human lives or jeopardise fundamental freedoms. This should not affect the inalienablerightto selfdetermination and independence of all peoples under colonial and racist regimes and other forms of alien domination and the legitimacy of their struggle...; (4) Acts of violence committed by individuals or groups of individuals for private gain, the effects of which are not confined to one State. 41  Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963). Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971). Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (1988). Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents (1973); International Convention against the Taking of Hostages (1979). Convention on the Physical Protection of Nuclear Materials (1980). 4 2 4 3 44  45  46  11  terrorist are usually political but terrorism for religious motives or ethnic domination would also be included However violence or threats of violenceforpurely private motives should not be included. '  A1  I f this is done, it can be said that, i n spite o f varying political and ideological views, a general and consistent definition o f terrorism should not be impossible to draft.  A s this thesis is dealing with the issue; are the responses by the United States and the United K i n g d o m to combat the escalating threat o f global terrorism compatible with respect for fundamental human rights? Accordingly, it is important to determine the definition o f terrorism from both nations perspectives.  First, I am going to look at the United K i n g d o m . There is no definition o f terrorism i n the European Convention on H u m a n Rights and the European Court o f H u m a n Rights has also not developed one single definition o f the term i n its jurisprudence. The most recent piece o f legislation by the United K i n g d o m defining terrorism can be found i n the Prevention of Terrorism Act 1999. Section one o f the A c t defines terrorism as:  "...the use or threat, for the purpose of advancing a political, religious or ideological cause, of action which involves serious violence against any person or property, endangers the life of any person creates a seriousriskto the health or safety of the public or any section of the public."  A widely accepted definition o f terrorism i n international law has also proved elusive, however a number o f anti-terrorism "suppression conventions" have been agreed and are gradually expanding the list o f objective acts which States are prepared to make criminal i n their national laws. It has also proved impossible to reach agreement on a treaty covering a general offence on terrorism, i n which the prohibited violence can i n all circumstances be condemned. The most recent treaty o f its kind, the International Convention on the Suppression of Terrorist Financing 1999, switches attention from the criminalisation o f "terrorist acts" to activities i n support o f terrorist campaigns. This is a similar stance as was adopted by the United States, with their enactment o f the USA Patriot Act 2001, which shall be discussed i n greater depth later i n this thesis. Furthermore, it can be said, that a descriptive approach to understanding terrorism has certain limitations. Descriptions o f terrorism may range from isolated acts by single persons, through single-issue groups, to  4 7  O.Schachter, "The Lawful use of Force by a State against Terrorists in Another Country", 19 Israel Yearbook on  Human Rights 209, 216 (1989). 12  wholesale operations o f groups, which reach the level o f international armed conflicts. There is also a possibility for making distinctions depending o n whether the violence is used by a State, is supported by a State, or is purely the work o f non-State individuals.  A further question that can be posed i n relation to defining the concept o f "international terrorism" lies i n distinguishing the difference between soldiers who attack military adversaries, and war criminals who deliberately attack civilians, such as the attacks on the U S o n September 11, 2001. Therefore a comprehensible definition o f terrorism can be based upon accepted international laws and principles regarding what behaviour is permitted i n conventional wars between nations. These laws are set out i n the Geneva and Hague Conventions. These Conventions are based upon the basic principle that the deliberate harming o f soldiers during wartime is a necessary evil, and therefore permissible, whereas the deliberate targeting o f civilians or non-combatants is absolutely forbidden. The normal principle relating to a state o f war between two countries can however be extended to a conflict between a non-governmental organisation and a State. This would therefore differentiate between guerrilla warfare and terrorism. Exacdy i n parallel with the distinction between military and civilian targets i n war, the extended version would assign guerrilla warfare to the deliberate use o f violence against military and security personnel i n order to attain political, ideological and religious goals. Terrorism, on the other hand, would be defined as "the deliberate use o f violence against civilians i n order to attain political, ideological and religious aims." This would therefore associate the attacks o n the U S on September 11, as acts o f terrorism, by the non-governmental organisation o f AlQaeda, due to the fact that it was a deliberate use o f violence against civilians i n order to attain political, ideological and religious aims. It is important to note that the aims o f terrorism and guerrilla warfare may well be identical, but they are distinguished from each other by the means used, or more precisely by the targets o f their operations. The guerrilla fighter's targets are military ones, while the terrorist deliberately targets civilians. B y this definition a terrorist organisation can no longer claim to be "freedom fighters" because they are fighting for national liberation or some other worthy goal. There is no merit or amnesty i n fighting for the freedom o f one population i f i n doing so you destroy the rights o f another population. This is why one is able to yet again label the attacks on the U S as acts o f terrorism. O n l y by a broadly subscribed to international agreement on the definition o f terrorism will it be possible to demand that all nations withhold all support from terrorist organisations.  13  C H A P T E R II 2.1 L E G I S L A T I O N I N T R O D U C E D B Y T H E U N I T E D K I N G D O M S I N C E 9 / 1 1 T O C O M B A T TERRORISM  O n 14 December 2001, a new counter-terrorism bill was introduced into U K L a w in the form o f the Anti-Terrorism, Crime <& Security Act 2001 (ATCS). The new legislation was heralded as necessary i n order to fortify the gaps and weaknesses i n the U K ' s counterterrorism laws exposed by the attacks i n America on 9/11. The ATCS is a vast document, containing 129 sections and 8 Schedules. Its provisions range from  asylum and  immigration law, bribery and international finance, police and security service powers and weapons o f mass destruction and aviation security. It is important to note that some o f the sections within the ATCS are time limited, and therefore after two years the Privy Council must review the entire A c t . A n y section it specifies will cease to have effect six months later unless Parliament chooses to re-enact it.  48  It is also important to note that the ATCS  has been certified by the Secretary o f State as complying with the H u m a n Rights A c t 1998 and the United Kingdom's obligations under the European Convention o n H u m a n Rights. However, as shall be discussed later i n the chapter, it became evident that some sections o f the ATCS direcdy violated certain Articles o f the European Convention on H u m a n Rights.  The introduction o f the ATCS  provided strong declaration o f the  United  Kingdom's stance on terrorism and its support for the United States after the attacks. It is 49  important to note that the ATCS was also passed i n response to the United Nations Security Council's call:  "... on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council Resolutions." O n 28 September, 2001, the U N Security Council issued Resolution 1373 affirming the principle that: ".. .[EJvery State has the duty to refrain from organising, instigating, assisting orparticipating in terrorist acts in another State or acquiescing in organised activities within its territory directed towards  ATCS 2001, ssl 22-124. Full text of Prime Minister Tony Blair's speech declaring that the United Kingdom will stand by the United States and will support the US in its efforts to eliminate terrorism, is available at http://www.guardian.co.uk/wtccrash/story/0,1300,550655,00.html. 48  49  14  commission of such acts.  This Resolution directed all States to introduce criminal offences to prevent and suppress terrorist financing and adopt powers to freeze or seize terrorist property. T h e Resolution also decided that all States shall introduce measures to prevent attacks by terrorists, block any form o f support for terrorist groups, ensure international co-operation and bring those who commit, help or finance terrorist attacks to justice.  The new U K legislation has been criticised however, as it is believed that it curtails certain civil liberties for individuals, for example those foreign non-nationals suspected o f being terrorists.  51  T h e United K i n g d o m is a member o f the Council o f Europe and one o f  the original contracting parties to the Convention for the Protection of Human Rights and Fundamental Freedoms first ratifying the Convention o n March 8, 1951. Consequendy, the U K made a commitment to the protection o f basic human rights and democratic principles by signing to the Convention. However, after the U K introduced the new terrorism legislation within the U K i n the form o f the ATCS it was realised that certain areas o f the A c t directly violated Article 5(1) o f the European Convention, most notably the section dealing with detention, which shall be discussed at greater depth later i n this chapter. A s a result, the U K decided to temporarily opt out o f its obligation under that part o f the Convention. Furthermore it became evident that the U K was the only Member State forced to derogate from the European Convention o n H u m a n Rights because o f the implementation o f new national anti-terrorism law.  It is apparent that within days o f becoming law, the Government had already used its powers under the Anti-Terrorism A c t 2001 to detain suspected international terrorists.  52  However after the arrests o f the suspected individuals, civil libertarian groups announced that they planned to challenge the law both within the British Courts and the European Court o f H u m a n Rights, claiming that the British Government lacked a valid justification for the state o f emergency it declared to suspend its obligations under the European  50  United Nations Security Council Resolution 1373,28 September 2001, para 1.  See e.g. Brian Groom; "In Liberty's Name - The Sweeping Powers that Britain and the US want to assume to counteract terrorism are raising fears thatfundamental freedoms will be lost"; Financial Times, November 21 2001. Here  51  it was argued that although the UK's Bill was not as detrimental to civil liberties as the proposed US measures, controversy and debate surrounded the Anti-Terrorism Actforits impact on fundamental rights. Phillip Johnston, "Terror Suspects Rounded Up"; Daily Telegraph (December 2001); Paul Waugh, "Campaign 5 2  Against Terrorism: Terror Suspects to be Rounded Up Under New Law"; The Independent (December 15, 2001).  15  Convention.  5  It must be argued however that Article 15(1) o f the European Convention on  Human Rights states that a Member State may temporarily opt out o f the Convention under certain circumstances, most notably situations involving public emergency. Further to this the United K i n g d o m Government correcdy concluded that it was faced with such a public emergency within the scope o f Article 15 and took the necessary steps required to protect the nation.  2.2  T H E U K ' s P O S I T I O N O N T E R R O R I S M P R I O R T O 9 / 1 1 ; How  9/11 H A S C H A N G E D  A T T I T U D E S T O W A R D S T E R R O R I S M I N B R I T A I N F R O M A P R E D O M I N A N T L Y IRISH EMPHASIS T O A WIDER APPRECIATION OF T H E INTERNATIONAL SCOPE OF TERRORISM IN T H E TWENTY-FIRST C E N T U R Y  It is evident that over the last two centuries we have seen severe acts o f terrorism take place i n relation to Ireland. The "Thirty Years W a r " i n 1968 to the " G o o d Friday Agreement" o f 1998 has kept Britain aware o f the many important aspects o f terrorist activity and their impact o n law, political concerns, international relations and the m o o d o f the nation. However, with the severe escalation o f international terrorism i n recent years, most notably the events o f September 11 2001, complexities i n dealing with the problem have arisen. These most notably include an apparendy never-ending string o f terrorist outrages throughout various corners o f the globe, perpetrated by a variety o f terrorist groups and organisations and inspiring a diversity o f responses i n individual countries whether or not they are direcdy affected by the actions.  F r o m the U K ' s perspective, we can argue that the nation is sufficiendy experienced in dealing with the virtues o f domestic terrorism, particularly from an Irish emphasis. However, the challenges o f dealing with national security i n a democratic society post 9/11 are both changeable and indecisive. It is evident that the British Government has responded to these demands i n recent years by adopting custom-made legislative powers, seeking international cooperation and reassessing and adapting national laws o n asylum, immigration and deportation, as shall be discussed later i n the chapter.  F r o m 1968 onwards, terrorism associated between Northern Ireland and the U K has resulted i n the evolvement o f several new-style sophisticated methods: advanced  John Wadham, director of civil liberties group "Liberty" indicated that the arrests destroy the basic principles of Human Rights of. British Law and the European Convention on Human Rights. The Telegraph (UK) (April 12, 2001).  53  16  technology, simplified communication devices and a wider international impact (for example drawing o n sympathisers i n the United States). I n addition to this, some groups initiated threatening fundraising campaigns, so much so that the Northern Ireland Affairs Committee o f the House o f Commons addressed their concerns i n m i d 2002:  "...[I]n addition to traditional fundraising activities such as extortion and armed robbery, paramilitaries from both traditions are increasingly turning their attention to more complex and  sophisticatedforms of organised criminal activity such as fuel smuggling and counterfeiting. These probab  net the terrorist groups millions ofpounds of income each year. Some of the revenue goes to fund individua  criminal lifestyles. The remainder buys propaganda and weapons which help terrorists maintain the dominance — often violent — of local communities. '  g4  It must be noted that the distinct kind o f domestic terrorism associated with Ireland over the past three decades has produced new legislation, litigation, constitutional proposals and much political controversy. The official reports o n their o w n provide extensive descriptions and analysis o f terrorism directed towards Northern Ireland.  55  The  legislation over the past thirty years includes laws purposely directed towards Northern Ireland  5 6  together with laws directed towards the U K as a whole.  57  Further to this,  following an extensive consultation service , an effort to draw the legislation together 58  resulted i n the drafting o f the Terrorism Act 2000. It is important to note that prior to the 59  Terrorism Act 2000 the "tension between terrorist legislation and human rights" had "generated a remarkable amount of litigation before the Strasbourg court" which is likely to continue.  Northern Ireland Affairs Committee, Fourth Report, 2001-2002 session. 'The Financing of Terrorism in Northern Ireland", H.C 978-1, at 5 (July 2, 2002), available at: http://www.parUament.the-stationeryoffice.co.uk/pa/cm200102/cmselect/cmniaf/978/97802.htm. See e.g. Tribunal of Inquiry, Violence and Civil Disturbances in Northern Ireland in 1969, 1972, Cmnd. 566 (reporting violence and civil disturbances in Northern Ireland in 1969), available at http://cain.ulst.ac.uk/hmso/scarman.htm; Committee of Privy Counsellors, Report of the Committee of Privy Counsellors Appointed to Consider Authorised Procedures for the Interrogation of Persons Suspected of Terrorism, 1972, Cmnd. 4901, available at http://cain.ulst.ac.uk/hmso/parker.htm. See e.g. Civil Authorities (Special Powers) Act 1922, available at http://cain.ulst.ac.uk/hmso/spal922 leading to the now repealed Northern Ireland (Emergency Provisions) Act 1996 (amended 1998) available at http://www.hmso.gov.uk/acts/acts 1996/1996022.htm. See e.g. Prevention of Terrorism (Temporary Provisions) Act 1974, available at http://www.hmso.gov.uk/acts/actsl989/Ukpgal9890004enl.htm repealed Prevention of Terrorism (Temporary Provisions) Act 1989, available at http://www.hmso.gov.uk/acts/actsl989/Ukpgal9890004enl.htm. See Legislation Against Terrorism, 1998, Cmnd. 4178 (a consultation paper presented by the Secretary of State for the Home Department and the Secretary of State for Northern Ireland), available at http://www.archive.official-documents.co.uk/document/cm41 /4178/4178.htm. Terrorism Act 2000 available at http://www.hmso.gov.uk/acts/acts2000/20000011.htm. See A.W. Bradley & K.D. Ewing, "Constitutional and Administrative Law" (13 ed. 2003). Chapter 26 providing an account of emergency powers and terrorism. 54  55  56  57  58  59  60  th  17  60  Furthermore, within the U K , and i n particular Northern Ireland, events since 1968 have substantially influenced approaches to national security (including the involvement o f secret intelligence service MI5), police powers, maintenance o f public order, ombudsmen procedures, status o f the police, prosecution and trial procedures, and cooperation with other countries i n law enforcement including the Republic o f Ireland and the United States.  After a direct rule from parliament i n L o n d o n was re-established for Northern Ireland i n 1972, efforts to create a new constitutional settlement resulted i n the Good Friday Agreement 1998, which restated "total and absolute commitment to exclusively democratic and peaceful means of resolving differences on political issues" and "opposition to any use or threat offorce...for any political purpose". ^ W e can argue that the initiation o f the Good Friday Agreement has 6  undoubtedly improved the situation i n Northern Ireland and provided the framework for the drafting o f the Terrorism Act 2000.  With  further  reference to the consultation paper presented by the  British  Government, identified earlier, and to the escalation o f terrorist acts taking place i n the U K , it is o f importance within the context o f the chapter, to recognise their position, "that  the threatfrom international terrorist groups (and to a lesser extent other groups within this country) mean  that permanent UK-wide counter-terrorist legislation will be necessary even when there is a lasting peac Northern Ireland.' It was realised that between 1969 and 30 November 1998, 3289 people 62  were killed i n Northern Ireland as a result o f Irish terrorism and that between 1972 and 30 November 1998, 121 people died i n mainland Britain i n incidents involving Irish terrorism. In addition, between 1976 and November 1998, 94 incidents o f international terrorism took place i n the U K , including the bombing o f Pan A m Flight 103, where 270 people were killed over Lockerbie, Scodand i n December 1988. A s a result, it was not surprising that new anti-terrorist legislation was drafted, in the form o f the Terrorism Act 2000, to replace the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emergency Provision) Act 1996.  In referring back to Chapter One o f this thesis, and the ambiguity surrounding a consistent definition o f terrorism, it is evident that the Terrorism Act 2000 continues to follow this trend. Incorporated within the A c t is a wide-ranging definition, i n addition to The Belfast Agreement: An Agreement Reached at Multi-Party Talks on Northern Ireland, 1998, Cmnd. 3883, available at http://cain.ulst.ac.uk/events/peace/docs/agreement.htm. Ibid, "Legislation Against Terrorism". 61  62  18  powers to ban specified organisations linked to terrorism i n Britain or internationally. Furthermore,  there are also detailed provisions on terrorist property and  finance,  extensions to police powers, and Northern Ireland still being provided for separately. W e 63  can note that the A c t has been utilised on several occasions already. M o r e recendy, i n 2002, two Indian businessmen were convicted and imprisoned for being members o f the banned organisation "International Sikh Youth Federation", which was listed i n addition to a number o f other foreign groups, under subordinate legislation o f the Terrorism Act  2000. In 64  addition, charges under the A c t were also brought after the discovery o f Ricin i n a L o n d o n apartment i n January 2003.  65  The events o f September 11 2001 forced a new dimension to international terrorism, changing perceptions i n the U K from a largely Irish emphasis to a wider appreciation o f the escalating threat o f international terrorism. There has always been the existence o f terrorism from a European viewpoint. Moreover, considerable increases i n terrorism have taken place since September 11 2001, with a rise i n the number o f arrests for terrorist offences i n Italy, Spain and France.  66  W e can acknowledge the views o f the  Select Committee o f the House o f Commons i n relation to the recent escalation o f international terrorism, stating:  "Some of the physical vulnerabilities of western society, but they also highlighted less tangib vulnerabilities in the way in which the shock at the attacks was transmitted rapidly throughout a  globalised, interconnected system, costing billions of dollars in economic damage through direct losses  growth, instability to certain industries (airline insurance). The attack(s) also had major knock-on effects political and social terms, as well as psychological. '  £ 7  M o r e recendy the international threat o f terrorism has become as concerning as ever post September 11 2001, with a variety o f severe terrorist attacks i n late 2002 up to the present day. Amongst the acts includes an attack i n October 2002 o n a French registered ship, "the Limburg", o f f the coast o f Yemen; an attack destroying the Sari Club at K u t a Beach, Bali; an attack by Chechen rebels on a M o s c o w theatre, killing 119 hostages;  See Clive Walker, "Blackstone's Guide to the Anti-Terrorism Legislation", Blackstone (2002). Subordinate legislation being the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001, entered into force on March 29, 2001, listing organisations such as al-Qaeda, Hizbollah, ETA (Spain). Steve Bird, 'Four Appear in Court on Chemical Weapons Charge", The Times (UK) (January 14, 2003). Bruce Johnston, "Italy: Little Evidence Britain was to be Targeted", Daily Telegraph, (January 25, 2003). Defence Committee, Sixth Report, 2001-02 Sess., "Defence and Security in the UK", H.C. 518-1 (2002) available at http://www.parliament.the-stationeryoffice.co.uk/pa/cm200102/cmselect/cmdfence/518/51808.htm. 6 3 64  65 66 67  19  the bombing o f the Israeli-owned Paradise Hotel i n Mombassa, Kenya; and most recendy, on March 11 2004, the bombings i n Madrid, Spain killing more than 200. Recognition o f these recent attacks has unquestionably influenced U K courts. F o r example we can relate to a case involving the deportation o f a Pakistani citizen i n the interests o f national security  68  and another one involving the extradition o f two individuals suspected o f  terrorist links i n the United States. Contained within the judgements o f these cases were 69  several references to the "modern world of international terrorism and crime'''® together with  "today's global village where national borders are no impediment to international terrorists and othe criminals. "  71  A s shall be discussed later i n the chapter, the courts within the U K need to come to terms with the escalating threat o f global terrorism, whatever path they take; be it under national, international or European law. A s A l l e n Dulles, director for eight years o f the Central Intelligence Agency, stated i n 1963:  "...fl]t is impossible to predict where the next danger spot may develop. It is the duty of  intelligence to forewarn of such dangers, so that the government can take action. No longer can the search information be limited to afew countries. The whole world is the arena of our conflict. '"  2  The difficulties arise, however, i n striking an even balance i n response. W i t h this lies a danger o f complacency, together with the possibility o f overreaction, as argued by Alan Dershowity  73  2.3 A N T I - T E R R O R I S M . C R I M E & S E C U R I T Y A C T 2001  Described by one political commentator as, "the most draconian legislation Parliament has passed in peacetime in over a century" , 14  the new legislation increases the British  Government's power to prevent international terrorists and suspected international  Secretary of State v Rehman 1 All ER 122 (H.L. 2002). Re Al-Fawwaz 1 All ER 545 (H.L. 2002). J £/</note32para63. Ibid note 31 para 102(4). Allen Dulles, "The Craft of Intelligence 55" University of Massachusetts Press (1963). Alan M. Dershowitz, 'Why Terrorism Works", ch.5, Yale University Press (2002).  68  69 70  r  71 7 2  7 3  7 4  Adam Tomkins, "Legislating Against Terror; The Anti-Terrorism, Crime and Security Act 2001", Public Law 205  (2002). 20  terrorists from abusing the asylum and immigration laws o f the United K i n g d o m  7 5  together with containing provisions on terrorist property and finance, weapons o f mass destruction, security o f pathogens and toxins, security o f the nuclear industry, aviation security and police powers. I n addition, the wide definition o f terrorism, originally drafted within the Terrorism Act 2000, has been carried over. It is important to note that, prior to the introduction o f the ATCS,  and with reference to national security, there were no  definitions o f terms such as "security", "espionage",  "subversion", and "sabotage".  Furthermore with reference to the term "terrorism", this is a relatively new introduction to the field o f overlapping threats to national security.  W e can note that sections 21 through to 23 o f the ATCS allow the Government to take action against foreign non-nationals w h o m the Secretary o f State for the H o m e Department suspects o f terrorist activity. According to section 21(1) o f the ATCS,  the  Secretary o f State may issue a certificate i n respect o f a an individual i f he or she reasonably believes that the person's presence i n the U K is a risk to national security and that the person is a terrorist. W i t h reference to this, we must note that a terrorist is defined as:  A person who (a) is or has been concerned in the commission, preparation, or instigation of acts of international terrorism, (b) is a member of or belongs to an international terrorist group, or (c) has links with an international terrorist group (s.21(2)).  76  Furthermore, under section 23 o f the ATCS, a suspected international terrorist may be detained despite the fact that his removal or departure from the United K i n g d o m is prevented by international law. It is important to note that prior to the enactment o f this section, the U K only had three options for dealing with suspected international terrorists. Firsdy to deport them to a safe country, secondly to prosecute them under existing U K law and thirdly to let them go free. W i t h the new legislation, section 23 provides  the  Government with a fourth option o f detention, to prevent the suspected terrorist from taking part i n any future activities that may be harmful to the U K . Furthermore, it is important to note that the detention o f a non-national without the intention or authority to deport h i m would violate Article 5(1)(f) o f the European Convention, due to the fact that the Convention only permits detention o f non-nationals i f deportation proceedings are i n  Bj.Hon David Blunkett indicating that the Anti-Terrorist Bill has "Proportionate, Targeted Measures", declaring that the purpose of the Bill is to 'prevent terrorists abusing immigration and asylum laws." Taken from The Times (UK) (November 13, 2001). See http://www.homeoffice.gov.uk/oicd/antiterrorism/at.  75  76  21  progress.  W i t h regard to this we can note the case Chahal v United Kingdom™ where it was  recognised that the requirements o f Article 5(1)(f) are met when "action is being taken with a view to deportation." Furthermore the case identified that i f deportation proceedings are not in progress or are not prosecuted with due diligence, the detention o f a non-national will violate Article 5(1)(f).  In reviewing the complexities surrounding the ATCS, we can refer to the problems associated with terrorist property and finance i n addition to the statutory power to detain without trial. W i t h specific relation to Northern Ireland, the Northern Ireland Affairs Committee commented i n June 2002 that, "[tjerrorism is about gaining power through violence, and money is a means to that end. " In addition, i n July 2002, a W o r k i n g G r o u p o f the Society for 79  Advanced Legal Studies examined i n some detail the enormous difficulties faced i n tapping into the funds available to terrorists. A n d finally, the Foreign Affairs Committee stated i n 80  December 2002, that an "important aspect of multilateral co-operation against terrorism hasfocused on the elimination of sources of terrorist financing", adding that "international progress to eliminate sources of funding to al-Qaeda and associated terrorist groups has been frustrating^ slow. These issues ,gl  undoubtedly underline the enormous commitment o f resources required within this area alone.  2.4  Is T H E N E W A N T I - T E R R O R I S M L E G I S L A T I O N W I T H I N T H E U K C O M P A T I B L E W I T H RESPECT FOR F U N D A M E N T A L H U M A N RIGHTS?  Another issue o f great importance to identify lies i n the European Convention on H u m a n Rights. It is evident that this Convention obligates the member countries to "secure the rights andfreedoms" o f the Convention to everyone within their jurisdictions. I n addition the Convention expresses the idea that promoting individual rights and freedoms above those o f the state will best protect democracy. This view was expressed by Brian Simpson, i n  Article 5(l)(f) reads: "No-one shall be deprived of his liberty save in...the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition." Chahal v United Kingdom, app.No.22414/93,23 Eur.H.R.Rep.413,465 (1997). 77  78 79  'The Financing of Terrorism in Northern Ireland", supra note 17.  Society for Advanced Legal Studies, London, 'The Funding of Terror The Legal Implications of the Financial War on Terror." (July 2002) available at http://ials.sas.ac.uk/SALS/Wordfiles/ 2003%20Annual%20Report.doc. Foreign Affairs Committee, Second Report, 2002-03 Sess. 'Foreign PoHg Aspects of the War Against Terrorism", H.C. 196 (December 19, 2002), available at http://www.publications.parlaiment.uk/pa/cm200203/cmselect/cmfaff/196/19602.htrn. 80  81  22  "Human Rights and the End of the Empire.' O n e can further elaborate on the importance o f the European Convention on H u m a n Rights by acknowledging Elizabeth A. Faulkner in "The Right to Habeas Corpus" . Here she identified the Convention as "the most advanced 83  international systemforprotecting humanrightsin existence today."  A s discussed earlier, the most relevant article within the European Convention o n H u m a n Rights i n dealing with the prevention o f terrorism and potential terrorists is Article 5(1), dealing with the Right to Liberty and Security. This provision protects against unwarranted state intrusions upon the liberty and security o f individuals by prohibiting unjustified detentions. It states that, "everyone has therightto liberty and security ofperson."  The issue o f detention without trial raises severe doubts, not least for those aware o f detention without trial i n both W o r l d Wars o f the last century. F o r example, during the Second W o r l d War "a very considerable number of people were detained by the British government  without charge, or trial, or term set, on the broad ground that this was necessary for national security. Mo were not British citizens, but technically enemy aliens....'* Furthermore, according to Brian 4  Simpson, the story o f wartime detention "illustrates a problem which faces liberal democracies in  times of grave crisis, is it essential to their survival that they should temporarily cease to be libera democracies until the threat is over?" W e can argue a similar situation applies today within the 85  scope o f international terrorism, both within the U K and United States. In the U K , the issue relates to select individuals: non-British nationals who cannot, by virtue o f Article 3 o f the European Convention on H u m a n Rights, be deported to places where they may face torture or inhumane or degrading treatment or punishment and yet are certified as suspected international terrorists.  This, however, raised concerns surrounding discrimination. Subsequently, nine people detained under the ATCS  and the Human Rights Act 1998 (Designated Derogation)  Order 2001 successfully appealed to the Special Immigration Appeals Commission (SIAC) o n grounds o f cUscrimination, namely that the A c t "allows only suspected terrorists who are non-  nationals to be detained when there are equally dangerous British nationals who are in exactly the same 8 2  A.W.Brian Simpson; "Human Rights and the End of the Empire: Britain and the Genesis of the European Convention",  Oxford University Press (2001). Here it was concluded that of the two theories discussed in Europe during and following World War II to preserve peace and democracy, the Convention favoured the theory of individual rights over the alternative theory of economic and social justice. 8 3  Elizabeth A.Faulkner; "The Right to Habeas Corpus: Only in the Other Americas", 9 Am.U.J.Int'l L.& Pol'y 653,  675 (1994), discussing the well established judicial system to protect the rights guaranteed in the Human Rights Convention. Preface to A.W. Brian Simpson, supra note 82. 84 85  Ibid.  23  position who cannot be detained.'  L o r d Woolf, the L o r d Chief Justice, identified i n a further  appeal to the Court o f Appeal from the S I A C , that the right not to be discriminated against  "is now enshrined in Article 14 of the European Convention, but long before the Human Rights Ac  into force the common law recognised the importance of not discriminating. ' H e added that the dang g?  o f unlawful discrimination dissenting judgement  "is acute at times when national security is threatened. * However, i n a ,e  o n the S I A C ruling, L o r d  indicated that the attacks o n September 11, 2001,  Goldsmith, the Attorney-General,  "had changedforever the landscape of terrorism"  and he argued that the detention provisions i n the 2001 A T C S represented  "a balance  between the interests of the suspected individuals and the interests of the community as a who protected from terrorism. ' A s a result, i n its judgement o n 25 October 2002, the Court o f m  Appeal largely agreed with L o r d Goldsmith's views. Furthermore, L o r d Woolf, o n recognising the necessity o f a collective approach to terrorism, spoke o f an appropriate degree o f deference to the actions o f the Executive, which he regarded was proportionate to what is necessary. I n addition, one o f L o r d W o o l f s colleagues, L o r d Justice Brooke, further acknowledged that,  "it has been a longstanding feature of international law that a state is  entitled to treat non-nationals differentlyfrom nationals intimeof war or otherpublic emergency thre its life as a nation. '  m  F r o m a European perspective, we must acknowledge that the European Court understands that certain problems, such as organised crime and terrorism, present particularly  "delicate issues" for member states, requiring them to balance the interests o f the  public with the protection o f individual rights. O n e can also add that certain member countries believe so strongly i n the idea that individuals should be free from unwarranted state intrusions that a person has the right to compensation i f a member state deprives h i m o f his liberty and security i n violation o f under  Article 5(5)? F r o m this, the right to compensation x  Article 5(5) can be identified as a domestic remedy, and therefore domestic courts o f  the offending country must provide compensation for a violation o f this provision. It must also be noted that  Article 5(5) requires countries to make this compensation to victims,  even i f the Convention has not been incorporated into the domestic law o f the country i n question.  86 87  Andrew Norfolk et al., "Suspects Win Hits Terror Crackdown", The Times (July 31 2002). A, X and Y v Secretary of State [2002] C.A. Civ 1502, para. 7. Within that paragraph, Lord Woolf cited  Jackson ). \nRy Express Agency v New York, 336 U.S. 106, 112-113(1949). 88 89 90  Ibid, Para 9. Ibid, Para. 83 (Lord Goldsmith). Ibid, Para. 115 (Lord Brooke).  Aticle 5(5) states: 'Everyone who has been the victim of arrest or detention in contravention of the provisions of this shall have an enforceable right to compensation."  9 1  24  A s discussed earlier i n this chapter, the U K was subject to derogation from the ECHK  Although member countries consider the rights and freedoms detailed i n the  Convention to be fundamental to democracy, the Convention itself contains the public emergency exception, discussed earlier, stating that:  "...[IJntimeof war or other public emergency threatening the life of the nation any High  Contracting Party may take measures derogating from its obligations under this Convention to the exten strictly required by the exigencies of the situation."  92  It must, however, be noted, that while member states may not derogate from the entire Convention, Article 15 allows member countries to derogate from the provisions o f only Article 5, and the Right to Liberty and Security. Article 15 goes on to indicate that member 93  countries must notify the Secretary General o f the Council o f Europe o f its derogation from the Convention and it's reasoning . Furthermore, under the Convention, and i n 94  particular Article 34, there is no restriction on whether an individual or a member state may challenge the derogation o f a member state at the European Court o f H u m a n Rights.  95  Prior to this, individuals could not petition direcdy to the Court, but instead were only permitted to apply to the European Commission on H u m a n Rights. Once the Commission had received the application, they would then decide whether to forward the petition to the Court itself. This process was widely criticised, creating a backlog o f cases. A s a result Protocol 11 was incorporated into the Convention i n 1998, replacing the Commission and the Court with a single Court. It is important to note that when petitioning, an applicant must first exhaust all reasonable domestic remedies before the Court will declare a matter admissible. In other words, application to the European Court is the last resort. One also 96  has to note the significance o f Article 32(1) i n this instance, which provides the Court with  Article 15(1) articulate the requirements that must be met for a member country to properly derogate from its responsibilities and obligations under the Convention. Article 15(2) identifies the specific articles of the Convention from which no derogation may be made. The case Ireland v United Kingdom, 2 Eur.H.R.Rep.25, 91 (1978) also establishes that because Article 5 is not expressly mentioned in Article 15(2), it is consequently subject "to the right of derogation reserved by the contracting states." 92  93  Note Article 15(3) which states, "Any High Contracting Party availing itself of thisrightof derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the prov Convention are again beingfully executed." Article 34 states: "The Court may receive applicationsfrom any person... orgroup ofindividuals claiming to be the victi a violation by one of the High Contracting Parties of therightssetforth in the Convention or the protocols thereto. T Contracting Parties undertake not to hinder in any way the effective exercise of this right." Article 35(1) states: "the Court may only deal with a matter once all domestic remedies have been exhausted and th petitioner must bring the matter to the Court's attention within six months of thefinaldomestic decision." 9 4  9 5  9 6  25  jurisdiction to decide i f the challenged country made a proper derogation under Article 15.  97  This point was raised i n the case Lawless v Ireland *, where it was held that the Court makes 0  the determination as to whether the condition for derogation under Article 15 has been met. This definition was further developed and clarified i n the Greek Case." Reaffirming the basic elements o f the Court's approach i n Lawless, the Commission emphasised that the emergency must be actual or at least "imminent", a notion that is present i n the Mertis judgement i n French, but not i n the English version.  100  A s stated by the European Commission i n the Greek case, and by the H u m a n Rights Committee i n its General Comment 29, the state parties bear the burden o f p r o o f i n establishing the existence o f a "public emergency".  101  However, i n assessing whether a  "public emergency" exists, and what procedures are required to address it, states are granted a "margin o f appreciation". This doctrine demonstrates the general approach o f international organs to the complex task o f balancing the sovereignty o f Contacting Parties with their obligations under the Convention.  102  Furthermore, i n the context o f derogation  i n times o f "public emergency threatening the life o f the nation", the margin o f appreciation represents the discretion left to a state i n ascertaining the necessity and scope o f measures o f derogation from protected rights i n the circumstances prevailing within its jurisdiction.  The European Court o f H u m a n Rights decided that it plays a limited role i n the review o f a member country's declaration o f a public emergency under Article 15. This was raised i n the case Ireland v UK  m  where it was held that the Courts power o f review is  limited when a member country makes a derogation under Article 15 because o f public emergency. Consequendy the Court grants Member States a Margin o f Appreciation due to the fact that it recognises that each State is primarily responsible for its own survival and stability. This issue was raised when the European Court held that:  Article 32(1) states: "Thejurisdiction of the Court shall extend to all matters concerning the interpretation and applica of the Convention and the Protocols thereto."  9 7  9 8 99 100  Lawless v Ireland, 1 Eur.H.R.Rep.15 (1961). Greek Case (1969) 12 Yearbook ECHR 1. Ibid, para 153 reads, "une situation de crise ou de dangerpublic exceptionnelle et imminente...".  HRC, General Comment 29 (2001) paras 4 and 5. See Ronald St. J. MacDonald, "The Margin ofAppreciation", Matscher & Petzold (1993), where MacDonald observes that it is the doctrine of margin of appreciation which allows the Court to escape the dilemma of "how to remain true to its responsibility to develop a reasonably comprehensive set of review principles appropriate for application across the entire Convention, while at the sametimerecognising the diversity of political, economic, cultural and social situations in the societies of the Contracting Parties". Ireland v United Kingdom, 2 Eur.H.R.Rep.91 (1990). 101  102  103  26  "... [I]tfalls in thefirstplace to each Contracting State, with its responsibility for the "life of [its] nation", to determine whether that life is threatened by a 'public emergency" and, if so, how far necessary to go in attempting to overcome the emergency. By reason of their direct and continuous with the pressing needs of the movement, the national authorities are in principle in a better position  the internationaljudge to decide both on the presence of such an emergency and on the nature and s  derogations necessary to avert it. In this manner Article 15(1) leaves the authorities a wide margin appreciation. "  104  However, the Court also stressed that states do not enjoy an unlimited margin o f appreciation. A s a result, the discretion o f the State is "accompanied by a European supervision".  105  The European Court usually seems prepared to grant a much wider margin  o f appreciation than the monitoring organ o f the I C C P R , the H u m a n Rights Committee. W i t h this in mind, the Committee found i n Landinelli Silva v Uruguay that "the State Party is  duty-bound to give a sufficiently detailed account of the relevant facts when it invokes Article 4(1)" an that it is the Committee's duty "to see to it that States Parties live up to their commitments under the Covenant.'"  06  It must also be noted that a Member State must determine the severity o f a threat to the nation and its people and the scope o f the measures necessary to control the situation. The Court in UK v Ireland came to the conclusion that because the individual Governmental authorities have continuous and direct contact with the daily conditions o f the state, those authorities are in the best position to make such a determination. One can note that member nations do not however enjoy absolute deference from the Court regarding the scope o f derogation from their obligations under the Convention. The Court's job is to rule o n the lawfulness, not the wisdom, o f the derogation and the measures taken to combat the emergency. Therefore it may be said that the Court maintains the limited role o f ensuring that Member States do not abuse the right to derogate by acting in a manner that the situation does not stricdy require. This point was yet again clarified in the case UK v Ireland, where it was held that the Court has a supervisory role in derogation decisions made by member countries. W e can refer to a contrasting view on this issue by acknowledging Oren Gross i n "Once More Unto the Breach: The Systematic Failure of Applying the European Convention on Human Rights to Entrenched  104 105  m  Supra note 103, Series A No 35 at 78-79. Ibid.  Landinelli Silva v Uruguay (1981) HRC Comm No 34/1978 para 8.3. 27  Emergencies. '*  Here Gross argues that the Court o f H u m a n Rights gives almost complete  deference to member countries, rarely disagreeing with a country's decision to declare a public emergency or with measures taken i n response to the emergency.  T o expand on the issue o f derogation under Article 15 i n response to today's current threat o f terrorism, one has to acknowledge the significance and importance o f the case, Lawless v Ireland. Here the Court heard the first challenge by an individual to a country's derogation under Article 15 o f the Convention. The background o f the case focused on acts o f violence committed by the Irish Republican A r m y (IRA) beginning i n 1921 where the Republic o f Ireland's legislature conferred special powers on the Irish Government with the Offences Against the State Act 1939 (hereinafter "Offences Act"). The Offences A c t allowed the Irish Minister o f State to detain individuals without a trial i f the Irish Government declared such powers necessary to secure public peace and order. D u e to the fact that a trial did not accompany this detention, Ireland derogated from the H u m a n Rights Convention i n 1957 when it invoked the special powers under the Offences Act. Consequently the Irish Minister o f Justice detained Lawless under the Offences A c t . After an unsuccessful challenge through the Irish Court system, Lawless challenged both Ireland's detention law and its derogation before the European Court o f H u m a n Rights. However the Court declared that it had the authority to "determine whether the conditions laid  down in Article 15(1) for the exercise of the exceptional right of derogation had been fulfilled in the present case". D u e to the fact that Article 15(1) has two parts, the Court first considered "the existence of a public emergency threatening the life of the nation" and then examined the "measures taken [by Ireland] in derogation from obligations under the Convention." T h e Court i n Lawless relied o n several key facts i n reaching its conclusion that Ireland faced a public emergency,  108  thus  satisfying the first element o f Article 15.  1 0 7  Oren Gross, "Once More Unto the Breach: The Systematic Failure of Applying the European Convention on Huma  Rights to Entrenched Emergencies"; 23 Yale Jrlnt'l Law 437,460 (2002). Amongst those reasons the Court held: 1) The secret nature of the IRA's unconstitutional behaviour and violence. 2) The operations of the IRA outside of Ireland potentially jeopardising relations with other countries. 3) The steady increase in the levels of violence used by the IRA. 4) The failed attempts used to control the situation using ordinary legislation and criminal procedure. 108  28  2.5 T H E S I G N I F I C A N C E O F " L A W L E S S " T O T H E C U R R E N T T H R E A T O F T E R R O R I S M I N T H E U.K.  In applying Lawless to the current situation regarding terrorism within the United K i n g d o m , the Court o f H u m a n Rights should find that the United K i n g d o m has a reasonably justifiable belief that it faces "a public emergency threatening the life of the nation", consequentiy satisfying the first element o f Article 15(1). The British Government enacted extraordinary means to deal with the threat o f terrorism due to an increased sense that the United K i n g d o m is a terrorist target, i n part due to its close relationship with the United States.  109  It may be noted however, that although the focus o f the campaign against  terrorism since 9/11 has been i n Afghanistan, intelligence sources suggest that terrorist cells are operating and co-ordinating activities throughout Europe, including the United Kingdom.  110  Therefore it may be argued, that the British Government correcdy believes  that a public emergency exists, requiring the use o f extraordinary measures to detain suspected international terrorists, i n order to protect the nation from terrorism and repeats of the atrocities o f 9/11 i n the United States.  W e can, however, argue as to whether the British measures o f derogating are "strictly required by the exigencies of the situation", and whether the powers contained within sections 21-23 o f the ATCS  are necessary. I n the case Aksoy v Turkey , the European  Court o f H u m a n Rights held that that not even the undoubted  m  'public emergency" i n  southeast Turkey justified the detention. Here, the claimant was detained for 14 days, without adequate judicial control, o n suspicion o f an involvement i n acts o f terrorism. I n relating the Aksoy decision to the U K ' s position, it is difficult to establish h o w indefinite detention o f suspected international terrorists can be "strictly required", even i n situations that amount to an Article 15 emergency. Furthermore, we can note that the U K government has not, as yet, established why actions taken under the existing ATCS, i n  Groom commenting that "the broad anti-terrorism proposals in the UK and US following the attacks on 9/11, resu from their perceived vulnerability to further attacks. "Yale J International Law, 234, 265 (2002); Prime Minister Tony Blair's speech post 9/11 stating, "the attack on America was an attack on the world and that the United Kingdom would work with the US to defeat international terrorism. "The Telegraph, 21 September, 2001 109  Thomas K.Grose & Kenneth T.Walsh, "A Statesman, Steadfast and Strong", US News & World Rep. (Oct 12 2001), discussing President Bush's views on Tony Blair being "al/jou wantfrom an ally."  Jeffrey Ian Ross, 'The Nature of Contemporary International Terrorism, In Democratic Responses to Internationa  Terrorism", American Journal of International Law, December (2001), discussing that the citizens of the United Kingdom along with France, Israel, Turkey and the US account for approximately half of the targets of terrorists. Rod Nordland, "al-Qaeda Runs for the Hills"; Newsweek (December 17, 2001). Here it was discussed that most of the planning for recent major terrorist attacks, such as the bombings on 9/11, has largely taken place outside of Afghanistan. Aksoy v Turkey 22 EHRR 553 (1996). 110  m  29  conformity with international human rights obligations, are not sufficient to meet the terrorist threat. F o r example section 41(1) o f the Terrorism Act 2000 states "a constable may arrest without warrant a person whom he reasonably suspects to be a terrorist."  It is interesting to note that the United K i n g d o m believes that it is not only a possible target o f international terrorism, but also an organisational base for terrorist activity. O n e can acknowledge the report by the International Institute for Strategic Studies, which recognises three possible reasons for the United Kingdom's popularity with terrorist suspects. First, it is evident that a large immigrant community exists i n the U K , allowing non-nationals to blend into the community relatively easily. This theory is supported by John Cloud i n "The Plot Comes Into Focus , who believes instructions from a terrorism M2  operations manual produced by Osama bin Laden's organization, recommend integrating into society by adopting the style o f dress and manner o f the host country. The second reason that the U K attracts terrorist suspects lies i n the population's concern for the protection o f civil liberties, which makes it difficult for law enforcement agencies to investigate and identify suspected activities quickly. It can be said that a debate exists both i n the public forum and i n Parliament surrounding the passage o f the Anti-Terrorism A c t providing ample p r o o f o f the overwhelrning resistance to any change i n , or limitations on, civil liberties i n the U K .  1 1 3  The third and final reason surrounding the U K ' s popularity with  terrorist suspects concerns the recruiting activities o f several mosques. Evidence o f those recruiting activities comes from admissions by suspected terrorists that experiences at certain L o n d o n mosques radicalised them. The figurehead o f the Finsbury Park mosque i n L o n d o n , "Iman", to which several suspects have connections, openly supports Islamic extremism. Investigation by the authorities have discovered that some mosques, including  1 1 2  John Cloud, 'The Plot Comes Into Focus; A Low-Profile, Even Meagre Lifestyle Allowed 19 Hijackers to Blend Into  the American Tapestry"; Time Magazine (October 1, 2001). Peter F.Carter-Ruck, "Anti-Terrorism Bill will erode Civil Liberties"; Daily Telegraph (November 21, 2001); stating concerns over the injustices that may arise from the detention powers of the Anti-Terrorism Act, leading toward the erosion of a trial by jury. Greg Hurst, "Blunkett Limits Detention Power"; The Times (November 22, 2001); discussing concessions required during the committee stage debate on the Anti-Terrorism Act due to the cross-party criticism of the detention powers. RJ.Overy, 'Deep Concern Over Anti-Terrorism Bill"; The Times (November 28, 2001); indicating the alarm felt because of the detention provisions in the Anti-Terrorism Act and the eroding impact it will have on civil liberties. T.R.Reid, "Britain Proposes Anti-Terrorism Measures"; Washington Post (November 14, 2001); where he noted the strong criticism of the civil libertarians to the proposed Anti-Terrorism measures. 113  John Wadham, Director of "Liberty", 'Innocents Are Going to be Locked Up: The Terror Bill is not Needed and will  Lead to Human Rights Abuses"; The Guardian (November 21, 2001); where it was perceived that asserting the Anti-Terrorism Act will follow in the footsteps of other anti-terrorism laws and lead to humanrightsabuses, contribute to miscarriages of justice, and cause the detention of innocent people. 30  the Finsbury Park mosque, are distributing recruitment videos produced by Bin Laden backed organisations.  114  It can be said that terrorism has become increasingly global and sophisticated, post 9/11. A s a result Governments, such as the U K , are required to recognise that a public emergency exists, subject to Article 15(1) o f the European Convention o n H u m a n Rights.  115  The ease with which people can communicate makes the globalisation o f international terrorism a significant threat to the security o f a nation, enabling terrorists to plan operations i n one location to be carried out i n another, potentially straining international relations. This information, combined with suspected international terrorists attraction to the U K , the confirmation o f terrorism recruitment activities i n the U K , and Britain's aversion to deporting foreigners who could face execution or torture i n their home countries, gives the U K ample justification to conclude that it has become a popular location for terrorists to locate their operations. This therefore  creates  a "public  emergency" that "affects the whole population and constitutes a threat to the organised life of the community of which the state is composed," subject to the judgment o f Lawless}^  The opposing view would argue that under the European Convention on H u m a n Rights and the Lawless judgement, the current situation i n the U K fails to qualify as a public emergency because o f the differences i n circumstances.  117  I n Lawless, the terrorism actually  occurred i n the country declaring the public emergency. Parliament enacted the  ATCS,  however, i n response to an attack that occurred i n the United States, not i n the U K . The U K , however, believes the attack o n the United States was essentially an attack o n the U K , because o f its connections to the United States, which makes it a potential target for future international terrorists. T o support this, it is important to recall that terrorism not only damages the location where the attack occurs, but also the areas i n which the terrorists  J. Burke; "Bin Laden and Terrorism"; The Telegraph (April 2002); explaining that recruitment videos, labelled by security sources as "pornographic catalogues of violence" are sold to raise funds for the "Islamic Cause" and recruit new volunteers. 114  1 1 5  Emanuel Gross, 'Legal aspects of Tackling Terrorism: The Balance Between the Right of Democracy to Defend Itselfa  the Protection of Human Rights"; 6 UCLA Journal of International Law and Foreign Affairs (November, 2001) 89, 97, where it was discussed that terrorism is now global, operating within a network that exchanges intelligence, tactics, weapons, and training information and assists with funding. Lawless, 1 Eur.H.R.Rep, where public emergency was defined under Article 15(1) of the European Convention on Human Rights. 116  1 1 7  S. Gibb, "Lawless and Derogation under Article 15 of the European Convention on Human Rights", HRLR (April  2002); criticising claims of civil liberties groups that a public emergency does not exist in the United Kingdom, therefore the derogation is invalid and the detention of suspected international terrorists violates the Human Rights Convention. Furthermore the differences between the previous uses of anti-terrorism legislation to address terrorism direcdy attacking the United Kingdom and the current legislation that addresses the threat of global terrorism. 31  plan and organize the attacks.  118  The U K continues to find evidence that terrorist planning  and recruiting are taking place inside its borders. A s the judgement i n Lawless stated, terrorist activities within a country's borders that jeopardise relations with other countries, helps support the finding that a public emergency exists. The U K also has reason to suspect that terrorist organisational activities taking place within its borders will strain and harm relations with neighbouring countries and other allies, based o n the criticism that Britain has become a terrorist haven. E v e n though the attacks on September 11, 2001, occurred i n the United States, the realities o f international terrorism have created a public emergency i n the U K that probably meet the standards established i n Lawless, and within Article 15(1) o f the European Convention on H u m a n Rights.  A major part o f the debate i n Parliament concerning the ATCS  was that the  detention o f suspected international terrorists must remain a temporary measure. The debate resulted i n a "sunset" clause i n section 29, causing the detention powers to expire on November 10, 2006.  119  While the expiration date sets an important limitation o n the  extraordinary powers to detain suspected international terrorists, Parliament can renew the detention powers through further legislation. It is important to note that allowing the detention powers to expire when the emergency situation ends is necessary not only for the protection o f the right o f due process, but also for maintaining the validity o f the derogation under Article 15 o f the C o n v e n t i o n .  120  In addition to a long history o f using  temporary emergency powers, the U K has also continually renewed the temporary Acts, ignoring the limitations on derogations under Article 15(1). * u  Pressure from several sources will help to ensure that the U K ' s derogation from the Convention and the extraordinary powers o f detention remain temporary. Although the majority o f the public support the ATCS and condone the acts o f terrorism committed on 9 / 1 1 , the public has voiced its concern for the protection o f basic civil liberties. Members o f Parliament also expressed their concerns regarding the indefinite detention o f  Judgement in Lawless identified: "the finding of a public emergency resulted from the secret nature of the terrorist organization, the international operations of the groups, and the inability to control the groups using traditional law enforcement." Supra note 116 at 110. Anti-Terrorism, Crime & Security Act 2001, stating that sections 21 through to 23 will expire on the date specified in section 29. Supra note 115, asserts two reasons why the UK should use criminal law. Firstly, the resulting appearance of normalcy demonstrates symbolically that the Government can overcome the problem using the ordinary legal system. Secondly, the ordinary criminal procedure carries a greater legitimacy than does the use of extraordinary powers. Ibid identifies that the emergency powers enacted to resolve Northern Ireland's terrorism problems were not temporary because they were continually renewed. 118  119  120  121  32  suspected international terrorists through the establishment o f the expiration date i n section 29 o f the ATCS, discussed earlier. Additional pressure from the international community, particularly the Council o f Europe, may help decrease the U K ' s temptation to extend the temporary powers o f the ATCS beyond its expiration date.  2.6 T H E R E Q U I R E M E N T O F M A I N T A I N I N G C O N S I S T E N C Y A N D N O N DISCRIMINATION  It is important to note that i n derogating, states must realise the obligations o f consistency and non-discrimination. A s discussed previously, the United K i n g d o m has derogated from Article 5(1) o f the ECHR and also Article 9(1) o f the ICCPR. However, as the U K ' s derogation measures additionally breach Article 5(4) o f the ECHR, it can be argued that they lack the required consistency with other obligations under international law. I n addition, it can be submitted that derogation measures do not fulfil the requirement of non-discrimination. W i t h this i n mind, sections 21-23 o f the ATCS  apply only to  individuals subject to immigration control under the U K ' s Immigration Act 1971. They do not apply to British citizens, which can be argued is incompatible with the requirement o f non-discrimination underlined within Article 14 o f the ECHR  and Article 4(1) o f the  ICCPR. Furthermore, even though it is not overdy established within Article 4(1) o f the I C C P R or Article 15(1) o f the E C H R , it has long been the n o r m within international human rights law, that i n the absence o f war, disparate treatment on the grounds o f national origin may be inconsistent with international non-discrimination provisions.  122  However, it must be noted that not all disparities o f mistreatment are considered discriminatory. In the case Belgian Linguistics, the European Court o f H u m a n Rights held that only those differences i n treatment for which the state could not give a "reasonable and objective" justification are discriminatory.  123  Nevertheless, the burden o f justification is  considerably high i f certain grounds o f discrimination are relied upon. This ideology was subscribed to in Gaygusu^ v Austria, where the court held that differences i n treatment on grounds o f nationality require substantial justification.  124  I n associating these prerequisites  to the current situation within the U K , it can be argued that the government needs to establish that treating British nationals differendy from aliens is impartially and reasonably 1 2 2  Colin Warbrick, "The Principles of the European Convention on Human Rights and the Response of States t  Terrorism", 3 European Human Rights Law Review 287 at 313-314 (2002), where Warbrick observes that the list of prohibited grounds of discrimination is both a long one and an open one. Belgian Linguistics Case (No 2) (1968) 1 EHRR 252. Gaygusuz v Austria (1997) 23 EHRR 364 at 381. 123 124  33  justifiable. A distinction would be justified, therefore, i f the terrorist threat to the U K exclusively originates from the alien population o f the U K . However, at present, the threat is not so confined, as hundreds o f British nationals have attended al-Qaeda ttaining camps in Afghanistan, citizenship.  126  125  including would-be shoe bomber, Richard Reid, w h o holds British  A s a result, i n these situations, it can be argued as to h o w the United  Kingdom's derogation is other than discriminatory o n the grounds o f national origin.  In sum, it can be argued, that the United Kingdom's derogation measures lack any justifiable proportionality, subsequendy not fulfilling the prerequisites o f consistency and non-discrimination.  2.7 R E L E V A N C E O F A R T I C L E 1 O F T H E E U R O P E A N C O N V E N T I O N O N H U M A N R I G H T S ( T H E RIGHT T O PROPERTY) INRELATION T O T H E C U R R E N T T H R E A T OF TERRORISM  O n e o f the most prominent demands made o f States by the Security Council i n its reaction to 9 / 1 1 , was to require that they take effective action against terrorist sources o f finance. I n particular the freezing and confiscation o f the assets o f terrorists and their supporters. A s a result the Security Council introduced Resolution 1383 i n 2001 i n order to identify this problem. It can be argued however that subject to the judgement i n AGOSI v United Kingdom  1 2 7  there is a wide margin o f appreciation to States i n regulating the  enjoyment o f possessions i n their national law, including the power to confiscate property. In each case where a State does act to confiscate property, it can be argued that this limits the civil rights o f the property owner. T h e determination o f these rights will therefore be subject to a fair hearing under Article 6(1) o f the European Convention o n H u m a n Rights. There are, however, two principal issues, which arise. First, what is the condition for the freezing or confiscation o f the property, and secondly, how is the existence o f that condition to be demonstrated? These issues were identified i n the recent case Phillips v United Kingdom  128  , where it was held that a criminal conviction is a necessary condition for  proceeding to confiscate property.  Peter Beaumont, "Briton Held in US Camp as al-Qaeda Prisoner", The Observer (UK) (13 January 2002). Gary Younge & Duncan Campbell, "Shoe-bomber Sentenced to Life in Prison", The Guardian (UK) (31 January 2003). AGOSI v United Kingdom (A/108) (1986) para.54. Phillips v United Kingdom (5/7/2001) paras 35, 53. 125  126  127  128  34  2.8 O V E R V I E W O F T H E U N I T E D K I N G D O M ' S P O S I T I O N O N T H E G L O B A L T H R E A T O F TERRORISM  In response to the atrocities o f 9 / 1 1 , the U K enacted extraordinary legislation aimed at preventing such action from occurring again. Although the ATCS  deprives  suspected international terrorists o f civil liberties, the U K has concluded that suspected international terrorists are such a threat to the nation that extraordinary legislation is required. Responding to the report o f the review o f the ATCS, the British H o m e Secretary, D a v i d Blunkett, on 18 December 2003 explained that:  'The outrages committed on September 11 2001 meant that we faced a new and unprecedentable  threat. The threat has been further underlined by terrorist attacks since then, notably in Bali, Singapore Kenya, Saudi Arabia and, most recently, Istanbul." (This comment was made prior to the terrorist attacks i n Madrid, Spain on March 11, 2004).  "It was against this background that the Anti-Terrorism, Crime and Security Act 2001 was  brought into force in December 2001. At its heart, the Act ensures that there are effective powers in plac to protect the publicfrom international terrorism."  "Myfirstduty as Home Secretary is to protect the citizens of the United Kingdom. I continue to believe that the Act is a key element in securing that. "  m  The European Convention o n H u m a n Rights allows member states to use extraordinary measures that would otherwise violate the Convention, during times o f public emergency so member states can properly protect their citizens. Furthermore, the U K firmly believes that it faces a public emergency that threatens the life o f the nation. While the European Court o f H u m a n Rights will likely side with the U K , declaring Britain's derogation valid, the U K must ensure that it does not permanendy suspend civil liberties. The British public and the European Court o f H u m a n Rights may approve o f the restriction o f civil liberties as a short-term emergency response, but neither group wishes to allow terrorism to result i n the permanent destruction o f human rights. O n the whole however, the ATCS seems to prioritise short-term counter-terrorism. Subsequendy there is litde attempt i n the A c t to balance competing needs o f counter-terrorism and human rights, which is why the A c t has been widely criticised, and why we can answer this thesis  1 2 9  Home Office Press Release, "Response to the Report of the Anti-Terrorism, Crime and Security Act 2001 Review",  available at http://www.homeoffice.gov.uk/pageprint.asp?item_id=743. 35  title by concluding that the new ant-terrorism legislation o f the U K is not compatible with respect for fundamental human rights.  36  C H A P T E R III 3.1 L E G I S L A T I O N I N T R O D U C E D B Y T H E U N I T E D S T A T E S S I N C E 9 / 1 1 T O C O M B A T TERRORISM  After the atrocities o f 9 / 1 1 , a number o f questions were asked within the United States: why the nation was unprepared and surprised by the attack? A n d , how a large number o f people who participated i n the suicide operation managed to move freely around the country and spend years planning and training for the operation without the intelligence services finding out? These issues raised the presumption that the immigration, intelligence and security authorities were insufficiendy equipped to deal with a terrorist threat because o f constitutional restrictions. Therefore it was believed that constitutional solutions had to be found i n order to create a new balance between preserving the nations civil liberties and fortifying its (the US') security needs.  This view led to the enactment o f the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act 200 f , 30  (Patriot  Act), which was designed to provide security and law enforcement agencies with tools to fight terrorism.  Prior to September 11 2001, the three principal pieces o f anti-terrorism legislation i n the United States were themselves responses to tragic terrorist attacks. The first two statutes followed the 1985 hijacking o f the Mediterranean cruise ship, the Achille Lauro, by terrorists affiliated with the Palestine Liberation Organisation ( P L O ) , resulting i n the killing o f L e o n Klinghoffer, a disabled Jewish-American citizen.  131  Thereafter, Congress passed  the Omnibus Diplomatic Security and Anti-Terrorism Act  1P86 , extending federal court m  jurisdiction over those individuals committing terrorist acts against American citizens anywhere i n the world. The second A c t , the Anti-Terrorism Act  1987 , took harsher X33  measures, however specifically targeted the P L O . It is important to note, an significant development i n American anti-terrorism law occurred through an inconspicuous provision Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001. Summary of the Achille Lauro affair can be found at Philip B. Heymann, "Terrorism and America: A Commonsense Strategyfor a Democratic Society", Cambridge, Mass.: MIT Press (1998) at 20-23. Pub. L. No. 99-399,100 Stat. 853. Pub. L. No. 100-204, 101 Stat. 1406. This statue barred fundraising for the PLO organisation in the United States, aimed to shut down their offices, and criminalised activities taken in support of the organisation. Pursuant to this Act, the US government attempted to close the PLO permanent observer mission at the United Nations, New York, but a federal district court kept it open by finding no clear congressional intent to contravene the United Nations Headquarters Agreement. These issues were held within the case United States v Palestine Liberation Organisation, 695 F.Supp. 1456 (S.D.N.Y. 1988). 130  131  132  133  37  o f the Federal Courts Administration Act 1992 , defining international terrorism as "acts 4  intended to intimidate a civilian population or coerce a government"} Furthermore, the bombings o f 35  the W o r l d Trade Center i n 1993, by Islamic militants, together with the Oklahoma City Federal Building i n 1995, by domestic right-wing extremists, led to the enactment o f the Anti-Terrorism and Effective Death Penalty Act / # 9 o ' ( A E P D A ) . Similar to previous legislation, 136  the A c t made incremental changes as oppose to affecting a comprehensive re-synthesis o f anti-terrorism law.  Although the two Acts, The Patriot A c t and the AEPDA,  are similar, the Patriot  A c t is more far reaching i n terms o f powers granted to the enforcement, security and intelligence agencies, and the extent to which the instruments violate human rights. The Patriot A c t also empowered and equipped authorities with the legal means to better observe the conduct o f individuals through sophisticated surveillance devices. This included  monitoring,  tracking,  searching  a  suspect's  computer  databases  and  eavesdropping on communications with other computer users. The Patriot A c t also equipped authorities with special powers to search and investigate aliens seeking to enter the United States, together with special powers to arrest individuals suspected o f being terrorists. It is fair to say that the Patriot A c t does limit the principle o f judicial supervision almost to the point o f elimination, so that security agencies and law enforcement can perform expanded functions. These expanded functions are intended to be pursued as quickly as possible, without being delayed by court proceedings. This is why, immediately upon the enactment o f the legislation, the American Civil Liberties U n i o n ( A C L U ) felt it was necessary to explain to the nation the exact effect o f the Patriot A c t :  "Atfirstglance.. .the Act signed into Law by President Bush appears to only mean to give law  enforcement officials the necessary tools to find terrorists and prevent future attacks. But in reality, the USA Patriot Act continues an alarming trend known as court-stripping - removing authority from the judiciary, in times of crisis.. As it has done in times ofpast tragedy, the Government responded by passing legislation that reduces or eliminates the process of judicial review and erodes our civil liberties. "  ni  Pub. L. No. 102-572,106 Stat. 4506 at 4521. s. 1003(a)(3), codified at 18 U.S.C. 2331 (1)(A), as amended by the USA Patriot Act, Pub L. No. 107-56, 115 Stat. 272(2001). Pub. L. No. 104-132,110 Stat. 1214 (1997). American Civil Liberties Union (ACLU) press release at: htm:Avww.aclu.org/features/fl 10101b.html (November 11,2001). 134 135  136  137  38  Critics understand that creating a balance between national security, democracy and human rights is a difficult task. It can be argued that the U S Congress took action without coordinating a suitable debate o f identifying the Patriot Act's compatibility with human rights, and without providing the American public with an opportunity o f voicing its concerns, despite the impact o f the Patriot A c t o n the everyday lives o f its citizens. This was a somewhat similar stance to that adopted by the U K Government on the passing o f the ATCS,  discussed i n Chapter T w o . Here, no opportunity was given to the general  public o f the U K to voice their opinions o n the proposed introduction o f the new legislation. The Patriot A c t has also further been criticised amongst U S citizens, as it is believed that overwhelming weight has been given to security needs, subsequendy ignoring important human rights issues.  138  The U S Government responded by stating that the goals  o f the Patriot A c t had two dimensions. First, the A c t increased internal oversight procedures by creating a new balance between human rights and security needs. A n d secondly, the A c t seeks to combat terrorism abroad by armed means and other methods.  In order to further understand how the Patriot A c t is to be used to combat terrorism, it is important to identify the most relevant sections which have been amended in order to confront the threat. One can therefore begin by looking at Section 411. This section defines terrorist activity "to encompass any crime that involves the use of a weapon or dangerous device other than for mere personal monetary gain". The section also provides the Government with the necessary tools to bar entry into the U S by non-citizens w h o m the Secretary o f State believes makes "public endorsement of acts of terrorist activity" and "who use their position ofprominence within any country to endorse or espouse terrorist activity". It is also apparent that the section vasdy expands the class o f immigrants that can be removed on terrorism grounds, just as communist immigrants were removed from the U S i n the 1950's.  139  Also  amended by section 411 o f the A c t is the term "engage in terrorist activity." N o w an individual may be labelled a terrorist even i f he/she "provides material" or "supports" a terrorist organisation. It is also important to note that section 412 o f the A c t gives the Attorney General the authority to detain indefinitely an alien who has been charged with a criminal or immigration violation, when he determines that the individual is engaged i n activities that threaten national security. A n analysis o f both sections 411 and 412, leads to the  Daily Record, (November 19, 2001) states: "Our nation is rightfully in both shock and mourning from the events of September 11, 2001. But the principles of rigorous debate and thoughtful legislative process should not be forsaken i of crisis. When fundamental individual liberties are at stake, our process ofpublic discourse is all the more important this is what democracy is all about." 1 3 8  Leading case on immigrants being removed from the USA: Harisiades v Shaughnessy, 342 U.S. 580 (1952). 139  39  conclusion that strong evidence exists in supporting the U S stance o n eliminating terrorism.  The next section o f the A c t , that is important to acknowledge, is section 218. This section permits the use o f wiretaps. The original legislation covering the use o f wiretaps was found within the Foreign Intelligence Surveillance Act 1978 (FISA), but section 218 o f the Patriot A c t enables wire-traps to be used even i f the primary purpose o f the surveillance is criminal investigation. One can argue that this could lead to law enforcement domestic spying on Government enemies under the guise o f combating terrorism. However even prior to the A c t , there is evidence that police forces were using anti-terrorism to justify spying on purely lawful domestic legal and political groups.  140  It can be argued though, that  what section 218 and other provisions o f the A c t do is, "encourage a closer working relationship between criminal and intelligence investigators than has previously been the case."  1 4 1  In doing so, the  A c t muddles the line between foreign intelligence gathering and domestic law enforcement that led so pervasively to abuses during the C o l d War. N o t only does section 218 o f the A c t permit warrandess wiretaps where foreign intelligence gathering is not the primary objective o f surveillance, but it also allows for increased sharing o f information between criminal and intelligence operations. In response to criticisms on the Government's new direction o n surveillance, it is important to acknowledge the views o f Assistant Attorney General Daniel J . Bryant who stated:  "As Commander-in-Chief, the President must be able to use whatever means necessary to prev  attacks upon the United States; This power, by implication, includes the authority to collects informa  necessary to its effective exercise...The Government's interest has changed from merely conducting fo  intelligence surveillance to counter intelligence operations by other nations, to one of preventing te  attacks against American citizens andproperty within the continental United States itself. The courts ha  observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self def  or to protect others.. .Here, for Forth Amendment purposes, the right to self defence is not that of an  individual, but that of the nation and its citizens...If the Government's heightened interest in self defen justifies the use of deadlyforce, then it certainly would alsojustify warrantless searches. "  142  140  141  "Denver Police Files Raise Rights Concerns"; New York Times (March 14, 2002). James Dempsey & David Cole, 'Terrorism & The Constitution; Sacrificing Civil Liberties in the Name of National  Security", American Journal of International Law (2002). Full speech available together with President George W. Bush's Address to a Joint Session of Congress to the American people available at: http://www.whitehouse.gov/news/releases/2001/09/20010920-8.html. 142  40  Therefore, as long as the war o n terrorism continues, the Assistant Attorney General's argument would justify warrandess searches.  Finally, the A c t creates a number o f new, often vaguely defined crimes. O n e o f the most dangerous to domestic dissidents is the new crime o f "domestic terrorism". Section 802 defines domestic terrorism as "acts dangerous to human life that are a violation of criminal laws", i f they "appear to be intended...to influence the policy of a Government by intimidation or coercion" and i f they Theoretically,  under  "occur primarily within the territorial jurisdiction of the United States."  this  definition,  it  can  be  argued  that  any  Hfe-threatening  demonstration against terrorism could be subject to prosecution. This is due to the vagueness o f the definition itself and consistent with the arguments raised i n Chapter One o f this thesis regarding the ambiguity surrounding the characterization o f terrorism.  Another provision o f the A c t makes it a crime for a person to fail to notify the F B I i f he or she has "reasonable grounds to believe"  143  that someone is about to commit a terrorist  offence. This has also been widely criticised, as the definition o f terrorism is so vague that it could result i n the prosecution o f innocent Americans i f they have a connection to a person who later turns out to be a terrorist.  It is also important to note that Congress incorporated a "sunset clause" within the Patriot Act, resulting i n the expiration o f certain provisions o n December 31, 2005. A s was established i n Chapter T w o o f this thesis, this is a similar policy to that adopted by the United K i n g d o m , when the ATCS was passed with the inclusion o f a "sunset clause". It must be noted, however, that most o f the Patriot A c t , including the provisions involving immigrants, new crimes and certain areas o f surveillance powers, are not included i n the clause. It is also unclear as to how Congress will review several o f these key provisions, as some o f them are implemented by a secret court. Here there are no reporting requirements to Congress, and also i n certain cases, no reporting requirements to a judge. Further to the point, i f by December 2005 the U S is still engaged i n a war o n terrorism, the pressure o n Congress will be immense to continue these provisions to the future. One can relate to the metaphor used by Justice Jackson, where he said:  ". ..the question will be whether the sunset will devolve into a ha%y twilight %one, where executiv emergency powers are believed needed to protect against the harkeningforces of darkness."  143  USA Patriot Act, s412 (3)(b). 41  3.2 U N D E R S T A N D I N G T H E H U M A N R I G H T S S Y S T E M I N T H E U N I T E D S T A T E S  A s discussed i n Chapter T w o , the European Convention o n H u m a n Rights binds the United K i n g d o m . A t this stage therefore, it is important to understand the instruments by which the United States is bound when dealing with human rights issues. The InterAmerican system is considerably different from other regional systems, as its origins lie i n two distinct but unrelated instruments. First, there is the Organisation o f American States (hereinafter  " O . A . S . " ) Charter system o f human rights, which relies upon the O . A . S .  Charter and the American Declaration of the Rights and Duties of Man. Secondly, human rights protection is provided by the American Convention on Human Rights to those members o f the O . A . S . , which have become parties to the Convention. The two systems operate through a unified body, known as the Inter-American Commission o n H u m a n Rights. This Commission is vested with authority to receive complaints from individuals and groups alleging violations o f human rights contained within the American Declaration or the American Convention o n H u m a n Rights.  W i t h respect to this thesis, it is also important to identify the most fundamentally central Covenant governing H u m a n Rights i n the U S , that being the Universal Declaration on Human Rights 1948 ( U D H R ) . While not a treaty, the U D H R provided the basis for the two primary international human rights treaties adopted by the U S : the International Covenant on Civil and Political Rights 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights 1966 ( I C E S C R ) . A s treaties, these two documents bind party States.  144  The  documents are based on the principle that Governments must answer at the international level for the way they treat people, and that all governments must be held to the same international standards. B o t h instruments recognise the indivisibility o f human rights and are identical i n composition. Their Preambles state that the ideal o f free human beings enjoying civil and political freedom, as well as freedom from fear and want, can only be achieved i f conditions are created so that everyone may enjoy civil, political, economic, social and cultural rights.  Although the United States played an active role i n the drafting o f these two treaties, it was not until 1992 that it joined the other 127 nations i n ratifying and becoming party to the ICCPR. Although President Carter signed the treaty and sent it to the Senate for its advice and consent to ratification i n 1977, the United States has yet to endorse the 144  Vienna Convention on the Law of Treaties opened for signature May 23,1969, art. 46,1155 U.N.T.S. 331:  "Every international agreement in force is binding upon the parties to it and must be performed by them in goodfaith."  42  ICESCR. It is also important to note, with relevance to fundamental human rights aspect o f this thesis, that the ICCPR recognises the right o f every human being to life, liberty and security o f person; to privacy; to freedom from torture and cruel, inhuman or degrading treatment or punishment; to immunity from arbitrary arrest; to freedom from slavery; to a fair trial; to recognition as a person before the law; to immunity from retroactive sentences; to freedom o f thought, conscience and religion; to freedom o f expression and opinion; to liberty o f movement and peaceful assembly; and to freedom o f association.  It can be argued that the ICCPR is the most ambitious human rights treaty to emerge from the mid-century human rights revolution. It was designed to give legal force to the brief human rights commitments o f the United Nations Charter 1945 and to the more elaborate but technically non-binding UN Genera/ Assembly Declaration on Human Rights adopted and proclaimed by General Assembly Resolution 217 A (III) o f 10 December 1948.  145  The large majority o f the ICCPR's rights are similar to those guaranteed by U S domestic constitutional and statutory law, but there are certain rights that clearly go further than U S Law. F o r example, the ICCPR's prohibitions on "any propaganda for war" and on "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence", Article 20, are arguably inconsistent with First Amendment free speech rights. It is also important to note, that i n addition to guaranteeing these substantive rights, the ICCPR sets up a H u m a n Rights Committee. Parties to the ICCPR are required to submit reports to the H R C o n measures taken to implement the ICCPR and on progress made i n the enjoyment o f those rights. The H R C also provides a forum for international scrutiny o f nations' human rights practices. It is important to note however, the H R C does not have official judicial or enforcement authority i n connection with State Party reports.  Furthermore i n 1994, the United States completed the ratification process for two other United Nations H u m a n Rights Treaties, these being the International Convention on the Elimination of All Forms of Racial Discrimination 1966, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987.  Available at http://www.hrweb.org/legal/udhr.htrnl. 43  3.3  Is T H E U S A P A T R I O T A C T C O M P A T I B L E W I T H R E S P E C T F O R F U N D A M E N T A L H U M A N RIGHTS?  In discussing whether U S legislation o n terrorism is compatible with respect for human rights, it is important to establish that human rights are not absolute, and it is possible to infringe them i n order to preserve national security and the safety o f the public. Furthermore, the security o f the State, the nation and its citizens is an important public interest, which stands at the heart o f basic values o f a democratic state. Without guaranteeing the personal safety o f each citizen i n relation to ensuring national security, it is difficult to uphold fundamental human rights, which was initially discussed i n Chapter One. There are circumstances however, i n which a balance must be drawn between human rights and the public interest. In this balance the superior value o f national security may surpass inferior values such as the liberty o f the individual, his right to privacy or the right to a fair trial.  The phenomenon o f terrorism is not new to the United States. However, its appearance on September 11, 2001 exposed the extent o f the dangers inherent i n it requiring a response from the United States i n a variety o f ways. A s a result the U S turned to legislation, which o n one hand, distorted the previous balance between human rights and national security, and on the other hand, failed to establish any new balancing test between these conflicting interests. The question arises, therefore, as to whether this response is proper, i n respect o f human rights? One can argue that it is not, due to the fact that the U S Constitution does not establish any guidelines for an examination o f the violations o f human rights. A s discussed earlier, the U S Congress responded to the terror attacks by enacting legislation i n the form o f the Patriot A c t , which, as has been studied, infringed certain fundamental human rights. The contravention is apparent due to the fact that the Patriot A c t denies almost all judicial review, neutralises the courts' function o f enforcing the U S Constitution and prevents citizens from properly defending their rights. This important point is asserted by the American C i v i l Liberties U n i o n , stating:  "The Anti-Terrorism legislation recently signed into law by President Bush appears to only be a  means to give law enforcement officials the necessary tools tofindterrorists and preventfuture attacks. Bu in reality, the USA Patriot Act continues an alarming trend known as court-stripping, removing authority from thejudiciary at times of crisis.. As it has done intimesofpast tragedy, the Government responded by  passing legislation that reduces or eliminates the process of judicial review and erodes our civil liberties an humanrights.In treating the judiciary as an inconvenient obstacle to executive action rather than an  44  essential instrument of accountability, the recently passed USA Patriot Act builds on the dubious precedent  Congress setfiveyears ago when it enacted a trilogy of laws that, in various ways, deprive federal courts o their traditional authority to enforce the Constitution of the United States. "  m  Therefore the answer to the question as to whether laws introduced by the U S since 9/11 to combat terrorism are compatible with respect for human rights would be negative.  The requirement that the U S Government take action against terrorism is a legitimate and proper demand. It is the duty o f the Government to defend the citizens o f the State, but this must be done i n accordance with democratic values and not i n opposition to them. There are some who believe that i f action by the Government will mfringe democratic values, it would be better to refrain from acting altogether. This view is taken by Steven Kimelmen, who stated i n the US National Law Journal that, "there is a real  legitimate need [sic] for protection (offreedoms). .. Anti-terrorist actions could do more harm to our society than not taking action." Further to this point, it can be argued that actions should be taken 147  by the Government, which minimise the violation o f human rights, yet achieve the purpose o f the legislation. There are individuals who argue that the anti-terrorist legislation, in the form o f the Patriot Act, seeks to protect national security and the lives o f American citizens whatever the price to democracy. Therefore the criticism continues that the Patriot A c t is not compatible with respect for fundamental human rights.  W h e n dealing with the dangers o f terrorism, it is not known when the danger will pass. It cannot enable the U S to imprison thousands o f individuals, without there being a more than low-level certainty that these people threaten the security o f the State. Nevertheless, how can the danger posed by terrorism influence the balance between national security and human rights from a constitutional point o f view? W i t h regard to this point, it is possible to adopt the constitutional test applied by the state o f Israel, known as the limitation clause. The central element o f this test is the principle o f proportionality,  148  which U S courts have used to defend constitutional rights. Further to the "limitation clause" test, it can be said that every measure supplied by U S law to security authorities American Civil Liberties Union: "Terrorism and Civil Liberties: New Anti-Terrorism Law Continues Dangerous Trend of Stripping Federal Judiciary of Authority". (November 1, 2001); available at:  1 4 6  http://www.aclu.org/news/2001/nl 10101 a.html. Steven Kimelmen, "Protecting Privilege"; National Law Journal (US) (December 3, 2001). It can be noted that the principle of proportionality is the central principle in the balancing tests the US courts created in order to defend constitutional rights. For example in the case Matthews v Eldridge 424 U.S.319 (1976) the court created a balancing test which is relevant to the right to due process. In Israel however, the balancing test is relevant to all constitutionalrights,but is created by the legislature. Moreover, the principle of proportionality is not exclusive. An important principle is whether a proper purpose exists. 147  148  45  that violate human rights must meet two conditions. First, the test must be i n accordance with the democratic values o f the United States. A n d secondly, it must be for a proper purpose. Satisfying these two categories will prevent an unnecessary violation o f human rights.  A t this stage it is important to look more closely at particular parts o f the legislation that may conflict with international human rights. First it is important to discuss arbitrary detention and whether the legislation governing it is consistent with international human rights norms. The detention provisions o f the Patriot A c t authorize deprivations o f personal liberty without sufficient procedural guarantees. Under Article 9(1) o f the ICCPR no one shall be "subjected to arbitrary arrest or detention" or "deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." Therefore the "principle o f legality" recognised i n this provision claims to regulate both the substantive grounds upon which the detention or arrest is based and the procedure used to confirm the arrest or detention. Although the ICCPR does not establish a list o f the grounds upon which detentions may be ordered, the exclusion o f uncertainty does ensure that the law itself is not arbitrary. This issue was raised i n the case Womah Mukong v Cameroon, where it was held that "deprivation of liberty should not be manifestly unproportional, unjust or unpredictable, and the specific manner in which an arrest is made must not be discriminatory and must be able to be deemed appropriate andproportional in view of the circumstances of the case. "  m  It must also be noted, as has been discussed earlier, that definitions o f terrorism for which non-nationals can be detained or deported under the Patriot A c t are broad and inconclusive. In particular those relating to "membership" or "material support" for any organisation designated as "terrorist organisations" by the Secretary o f State. In these situations, the burden is placed on the detainee to prove that his or her assistance was not intended to further terrorism. One can argue that this is contrary to Article 9(2) o f the ICCPR, stating "anyone who is arrested shall be informed, at the time of arrest of the reasons for his arrest and shall be promptly informed of any charges against him." These provisions indicate that anyone who is arrested must be informed o f the general reasons for the arrest "at thetimeof the arrest", while formal legal charges must be furnished "promptly". There must also be sufficient information i n the disclosures to permit the detainees to challenge the legality o f his or her detention. This point was observed by the H u m a n Rights Committee i n the case  Womah Mukong v Cameroon, Comm. No. 458/1991, UN Human Rts. Comm., 51 ' Sess., UN Doc CCPR/C/51/D/458/1991 (1994), para. 14. 149  s  46  o f Caldas v Uruguay} It is evident from discussing the issues surrounding detention under 50  Article 9(2) o f the ICCPR that there seems to be evidence o f inconsistency between the Patriot A c t and a real respect for fundamental human rights  The next provision o f the ICCPR to look at i n relation to the Patriot Act's inconsistency with it, is under Article 9(3). This Article states that all persons arrested or detained o n a criminal charge "shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release."  151  Although no test for "promptness" has emerged, the H u m a n Rights Commission held that an individual must be brought before a judge or officer within "a few days". The ICCPR also permits the use the Habeas Corpus doctrine under Article 9(4). Under this provision, anyone deprived o f liberty by arrest or detention has the right to "take proceedings before a court in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." Moreover, it can be noted that this provision implies that the detainee has the right to continuing review o f the lawfulness o f his or her detention. Clearly the seven-day detention period authorised by the Patriot A c t departs from existing international standards, and therefore provides us with more evidence o f the Patriot A c t being inconsistent with respect for human rights.  Further to discussing the United States anti-terrorism legislation i n relation to international human rights, it can be said that there are certain international treaties that allow for the suspension o f some rights i n public emergencies. Article 4 o f the ICCPR is similar i n composition to that o f Article 15 o f the European Convention on H u m a n Rights, in relation to derogation i n times o f public emergency, which was discussed i n Chapter T w o o f this thesis. Article 4 o f the 7 C C P R provides that, i n situations threatening the life o f the nation, a Government may issue a formal declaration suspending certain human rights guarantees.  152  The suspension o f these rights are held o n five conditions: First, a state o f  emergency that threatens the life o f the nation must exist. Second, the exigencies o f the situation "stricdy require" such a suspension. Third, the suspension does not conflict with  Caldas v Uruguay, Comm No. 43/1979 U.N. Human Rts. Comm., 192 (1983). It must be noted that Article 9(3) of the ICCPR applies only to individuals arrested or detained on a criminal charge, while the other rights recognised in the Article apply to all persons deprived of their liberty. People awaiting trial on criminal charges should not, as a general rule, be held in custody. In accordance with the right to liberty and the presumption of innocence, persons charged with a criminal offence, in general, should not be detained before trial, which is indicated within Article 14(3). 150 151  Article 4(1) of the ICCPR states that:'7» time ofpublic emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parlies to the present Covenant may take measures derogatin obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provide measures are not inconsistent with their other obligations under international law." 1 5 2  47  the nations other international obligations. Fourth, the emergency measures are applied i n a non-discriminatory fashion. A n d finally, the Government must notify the United Nations Secretary General immediately. T h e only rights that are not subject to suspension i n this 153  situation are those specified within  Article 4 as protected from derogation. It is fair to say 154  that these exceptions significandy differ from those exceptions to derogation stated within  Article 15(2) o f the European Convention o n H u m a n Rights. trial and personal liberty are derogable provisions under the  155  Although the rights to fair  ICCPR, the H u m a n Rights  Committee has suggested that restrictions o f these rights are inappropriate even i n times o f emergency.  156  Furthermore the Committee, following the lead o f the Inter-American Court  o f H u m a n Rights, strongly suggested that the right to habeas  corpus is non-derogable.  157  It can be said that international human rights treaties authorise states to restrict or suspend some rights for an unidentified set o f important public policy objectives. Therefore it can be argued that these "states o f exception" strike a balance between universal human rights norms and national interests by specifying the circumstances i n which derogations may be enacted lawfully. The question therefore arises as to how much should the concern for individual human rights about the Patriot A c t affect the participation  o f the United  States  i n international human  rights  regimes? Under  international human rights law, the U S may suspend various rights provided that such derogations are stricdy required to meet the challenges posed by an emergency threatening the nation. International H u m a n Rights Treaties must therefore effectively limit the ambitions o f national Governments. A t the same time, fundamental threats to democracy,  The Human Rights Committee has emphasised the importance of notification of derogations in states of emergency. This was acknowledged in the Annual Report of the Committee to the General Assembly, UN GAOR, 36* Session, Supp. No. 40, Annex VII, UN Doc A/36/40 (1981). The exceptions are as follows: Prohibiting derogation from: Article 6 (Right to Life), Article 7 (Prohibition on Torture), Article 8 (Prohibition on Slavery and Servitude), Article 11 (Imprisonment for Failure to Fulfil Contractual Obligation), Article 15 (Prohibition on Retrospective Criminal Offence), Article 16 (Protection and Guarantee of Legal Personality), and Article 18 (Freedom of Thought, Conscience and Religion). Exceptions to derogation within the ECHR are: Article 2 (Right to Life), Article 3 (Freedom from Torture), Article 4 (Freedom from Slavery) and Article 7 (Retrospective Effect of Penal Legislation). Human Rights Committee Annual Report to the UN General Assembly; UN Doc A/49/40 (1994): 153  154  155  156  'The Committee notes that the purpose of the possible draft optional protocol is to add Article 9, paragraphs 4, and Article 14 to the list of non-derogable provisions in Article 4, paragraph 2, of the Covenant. Based on its e derived from the consideration of States Parties' reports submitted under Article 40 of the Covenant, the Committee point out that, with respect to Article 9, paragraphs 3 and 4, the issue of remedies available to individuals during emergency has often been discussed. The committee is satisfied that States Parties generally understand that ther corpus and amparo should not be limited in situations of emergency. Furthermore, the Committee is of the view tha provided under Article 9, paragraphs 3 and 4, read in conjunction with Article 2 are inherent to the Covenant as a Having this in mind, the Committee believes that there is a considerableriskthat the proposed draft third optiona might implicitly invite States Parties to feelfree to derogate from the provisions ofArticle 9 of the Covenant during emergency if they do not ratify the proposed optionalprotocol. Thus, the protocol might have the undesirable effect the protection of detainedpersons during states of emergency." Ibid. 157  48  such as terrorism, might require a temporary suspension o f certain rights to protect liberty in the long run.  In 1987, Justice William Brennan o f the U S Supreme Court gave a lecture in Jerusalem on human rights i n times o f security crises i n the United States.  158  I n his view,  the history o f the United States has shown that fundamental human rights have been repeatedly infringed upon i n times o f emergency, not by reason o f calculated actions, but as a result o f panic. Each time, after the crisis had passed, it became clear that there had been no justification for violating human rights. I n his view, the history o f the United States i n this connection "teaches that the predicted threat to national security, which leads to victimisation of humanrightsintimesof crises, is exaggerated." W i t h the examples raised i n this chapter, there is substantial evidence to argue that the Patriot A c t will lead to further infringements o f human rights as a result o f a paranoid fear o f terrorism. I n contrast, it has been demonstrated that Israel, which is subject to persistent terrorist threats to its security, has not let paranoia result i n security interests being given preference over human rights. It could have been argued i n the past that a comparison between the United States and the United K i n g d o m on one hand and Israel o n the other was unfair, "because the security threat to Israel is a permanent threat, meaning that Israel must be cautious in relation to humanrightsmore than other nations. "  159  Today, however, international terrorism has placed the world under a permanent threat. The powers within the Patriot A c t are not limited to times o f emergency. The A c t is active and developing, i n the sense that it has immediate and future effect i n the light o f the reaction to terrorism as a permanent threat. This is i n contrast to terrorism being thought o f as a temporary or passing threat, which requires the use o f powers that are limited i n time and confined to emergencies.  It can be argued, i n conclusion, that the terrorist attacks o n the U S on September 11 could have been avoided had law enforcement, security and investigative agencies possessed the necessary tools to fight terrorist attacks. However, the outcome o f the legislation gives the impression that at the time o f enacting the Patriot A c t , the U S Government did not ask itself the following questions: Firsdy, H o w did the preparation for  1 5 8  William Brennan, 'The Quest to Develop a jurisprudence of Civil Liberties in Times of Security Crises", National  Security and Free Speech, Kluwer Press (1989). I.Zamir, "Human Rights and National Security", 19 The United Synagogue of Conservative Judaism, Parashat 70 17,23 (1989). 159  49  the attacks o n September 11 evade our intelligence services? Secondly, what powers do law enforcement agencies now have? A n d thirdly, how can these existing powers be used more effectively to combat terrorism? H a d Congress asked itself these questions, it can be argued that it would have reached a different conclusion to that attained i n the Patriot Act.  50  CHAPTER I V 4.1 " O P E R A T I O N E N D U R I N G F R E E D O M " : T H E L E G A L I T Y O F T H E U K A N D U S MILITARY RESPONSE AGAINST A L - Q A E D A I N AFGHANISTAN U N D E R INTERNATIONAL LAW  O n October 7, 2001, the U K and U S initiated "Operation Enduring Freedom", an immense military operation o n Afghanistan i n response to the attacks o n September 11 2001. B o t h the U K and U S governments defended the military action as an exercise o f lawful self-defence. The military operation was instigated as a result o f the Taliban's refusal to surrender Osama bin Laden, in addition to other senior members o f al-Qaeda. President George W . Bush explained the reasoning behind the military operation i n an address on October 7.  'This military action is a part of our campaign against terrorism, anotherfront in a war that has  already been joined through diplomacy, intelligence, legislation, freeing...assets, and the arrest an  detention of suspected terrorists by law enforcement.. .in 38 countries We are supported by the colle  will of the world. ..[but] given the nature and reach of our enemies, we will win this conflict by the pa accumulation of success.. .[rather than by quick military victory]. "  160  W h e n not responding to existing terrorism, however, but with the purpose o f averting future acts, the fundamental concern as to whether international law permits the use o f force has raised enormous criticism i n the aftermath o f September 11, 2001. W e can refer to an earlier statement, in September, 2002, when President George W . Bush issued the National Security Strategy document, stating:  'The United States has long maintained the options ofpre-emptive actions to counter a sufficie  threat to our national security. The greater the threat, the greater is theriskof inaction — and the m compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as  time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the U States will, if necessary, actpre-emptively...."  "... The United States will not use force in all cases to pre-empt emerging threats, nor should  nations use pre-emption as a pretextfor aggression. Yet in an age where the enemies of civilisation op  160 "Address to the Nation Announcing Strikes Against al-Qaeda Training Camps and Taliban Military Installations i  Afghanistan", 37 Weekly Comp. Pres. Doc. 1432 (October 7, 2001).  51  and actively seek the world's most destructive technologies, the United States cannot remain idle wh dangers gather..."  "... The purpose of our actions will always be to eliminate a specific threat to the United States or our allies andfriends. The reason for our actions will be clear, theforce measured and the causejust. "  161  Critics have argued such statements are indicative o f an alarming eagerness by governments, i n light o f the September 11, 2001 attacks, to disrespect and ignore fundamental international law norms.  162  Meanwhile, other schools o f thought perceive  them as signals for a fundamental reform o f the law, including a possible amendment o f the U N Charter.  163  Before attempting to side with either ideology, we must identify the  appropriate areas o f international law that permit the use o f force to prevent an attack yet to materialise. W e can associate this to the established protocol that the use o f force i n international relations is only lawful i f it satisfies both the recourse to force, together with the lawfulness, under the U N Charter, o f this force, known as the jus ad bellum. Moreover, the conduct o f hostilities must also meet the requirements o f international humanitarian law, orjus in bello.  4.2 S E L F - D E F E N C E U N D E R C U S T O M A R Y I N T E R N A T I O N A L L A W  W h e n faced with an armed attack, customary international law provides States with an inherent right to defend themselves. Francis Boyle identifies, that under Article 51 o f the U N Charter, "self-defence could only be exercised in the event of an actual or imminent armed attack against the state itself.'  A(A  It is interesting to note, to a somewhat differing perspective, Professor  Coil's perception o f self-defence constituting, "measures necessary to protect the state and its people from outside armed attacks in all their conventional and unconventionalforms - including terrorism. " acknowledging these views, it becomes evident that the events o f September 11, 2001 permitted the International Coalition Against Terrorism (ICAT) to respond, i n selfdefence, under any interpretation o f a high, moderate or l o w self-defence threshold. This is  1 6 1  President George W. Bush, 'The National Security Strategy of the United States of America", 15-16 (September  17, 2002) available at http://www.whitehouse.gov/nsc/nss.pdf. D.W. Bowett, "Self Defence in International Law", Manchester University Press (1958). Oscar Schachter, 'International Law in Theory and Practice", Kluwer Law International (1991); Yoram Dinstein, 'War, Aggression and SefDefence", Cambridge University Press (2001). Annual Meeting of the American Society of International Law (ASIL) (1987). A.R. Coll, cited in Y. Dinstein, "War, Aggression and Self-Defence", 2 Edition, Cambridge University Press (1994). 162  163  164 165  nd  52  165  In  further confirmed by Boyle and Coll, w h o identify, "close in time" or immediate responses to acts o f terrorism in self-defence, as being permissible under international law.  166  It is also important to acknowledge the Preamble to the U N Charter, which asserts  that, the "Peoples of the United Nations" are "determined to save succeeding generationsfrom the scou of war, which twice in our lifetime has brought untold sorrow to mankind". I n addition, Article 1(1) o f the U N Charter provides that the primary objective o f the United Nations is to,  "...fmjaintain international peace and security, and to that end: to take effective collection  measuresfor the prevention and removal of threats to the peace, andfor the suppression of acts of aggre  or other breaches of the peace, and to bring about by peaceful means, and in conformity with the princi  justice and international law, adjustment or settlement of international disputes or situations which mi lead to a breach of the peace."  These provisions highlight the importance o f maintaining international peace, together with the willingness, by states, to use force for combating aggression, and to prevent threats to peace from materialising into acts o f aggression. Article 2(4) o f the U N Charter, which arguably, is the most far-reaching restriction yet implemented by the U N on the use o f force by states on one another, states that:  "All Members shall refrain in their international relations from the threat or use offorce against  the territorial integrity or political independence of any state, or in any other manner inconsistent with Purposes of the United Nations. "  167  This provision has provided a paradigm principle that has evolved into customary international law, binding all states under the doctrine o f jus cogens.  168  It has, however, been  argued that Article 2(4) implies, only partial prohibition, and that certain examples o f recourse to force between states fall outside o f its scope.  169  This view, however, is regularly  dismissed, as academics argue Article 2(4) proscribes all use o f force by States against another, unless justified within certain exceptions under international law.  170  Moreover,  whilst Article 2(4) does not overdy relate to actions o f non-state actors, such as  Supra notes 162,163. UN Charter Article 2, para. 4 available at http://www.un.org. 168 "Military and Parliamentary Activities"'in Nicaragua v United States of America ICJ 14, 99-100 (1986). 166  167  1 6 9  Anthony D'Amato, "Israel's Air Strike Upon the Iraqi Nuclear Reactor", 11 Am. J. Int'l Law 584 (1983).  Ian Brownlie, "International Law and the Use of Force by States", Oxford University Press (1963); Christine Gray, 'International Law and the Use ofForce", Oxford University Press (2001). 170  53  international terrorist groups, it is evident that under the general rules o f international law, acts o f terrorism are illegal, and therefore fall within the scope o f international criminal law. It must be noted that Article 2(4) also includes prohibition o f state sponsorship o f terrorism , which can be argued may result i n serious repercussions for states who are 171  suspected o f assisting the al-Qaeda network's attacks o f September 11, 2001.  172  F o r the purposes o f this chapter, we must identify the principal provision under international law, governing the use o f military force i n self-defence, that o f Article 51 o f the U N Charter. It must be established that the fundamental prerequisites o f any selfdefence response are necessity and proportionality. I n other words, armed force used i n self-defence must be necessary for the objective o f the defence, and must be proportional to the.injury threatened.  173  These principles form the core customary law codes o f  international humanitarian law.  174  Necessity can be described as, "involving only that degree and  kind offorce, not otherwise prohibited by the law of armed conflict (LOAC), required for the partial or  complete submission of the enemy with a minimum expenditure of time, life and physical resources may b applied. " Furthermore, the proportionality principle prohibits "employment of any kind or 175  degree of force not requiredfor. ..the partial or complete submission of the enemy within a minimum of tim life, and physical resources. "  176  A subsequent third condition arises, i n anticipatory self-defence,  when a situation immediately arises, and allows no other alternative. This provision shall be discussed later i n the chapter, arguing as to whether "Operation Enduring Freedom" is, i n fact, deemed to be such a response.  W e also have to ask the question: did the attacks o n September 11 2001, prompt an unexpected change i n the perception o f the acceptability o f the use o f force i n response to  See for example the Libyan sponsorship of the bombing over Lockerbie, Scotland of Pan Am Flight 103, where it is evident that it is the only time when the UN Security Council have addressed the issue of Article 2(4)'s applicability to state involvement. R. Beeston, "Iraqi Met Hijacker Before Attacks on US", The Times (UK) (October 8, 2001), where it is noted that Khahil Ibrahim Samiral-Ani, an Iraqi intelligence officer, was seen meeting Mohammed Atta, one of the al-Qaeda suicide pilots of September 11, 2001, in Prague, prior to the atrocities. Judith Gardam, 'Proportionality and Force in International Law", 87 Am. J. Int'l Law 391 (1993) stating that in the law of armed conflict, the notion of proportionality is based on the fundamental principle that belligerents do not enjoy an unlimited choice of means to inflict damage on the enemy. 171  172  173  1 7 4  Christopher Greenwood, 'Historical Development and Legal Bases, in the Handbook of Humanitarian Law in  Armed Conflicts", D. Fleck ed,. (1995). 1 7 5  International Institute of Humanitarian Law, "San Remo Manual on International Law Applicable to Armed  Conflicts at Sea" (hereinafter San Remo Manual) Louise Doswald-Beck ed. (1995) para. 4. Supra note 171, para. 5. 176  54  an act o f terrorism by a private actor? Further: is international law faced with a "new constitutional moment" , or a process o f creating instant customary law? 177  4.3 A P P L Y I N G A R T I C L E 51 O F T H E U N C H A R T E R T O " O P E R A T I O N E N D U R I N G FREEDOM"  T h e inherent right o f self-defence presupposes the absence o f any other means o f defence for the fundamental rights o f the states that are threatened, who must be i n serious and imminent danger. The U N Charter does not, however, create the right o f self-defence. It is a customary law right o f considerable antiquity said to be innate within the concept o f Statehood. Article 51 o f the UN Charter provides that:  'Nothing in the ... Charter shall impair the inherentrightof individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the  measures necessary to maintain international peace and security. Measures taken by Members in the exercise of thisrightof self-defence shall be immediately reported to... Council and shall not in any way  affect the authority and responsibility of the ... Council under the... Charter to take anytimesuch action as it deems necessary.. .to maintain internationalpeace and security. "  178  This definition has led to several differing interpretations o f its meaning and scope. F o r example, Goodhart proposes that when members o f the U N exercise the right o f selfdefence, they do so not by grant, but by an already existing right.  179  Moreover, he considers  that the Charter limits the sovereign rights o f the states, and is not a source o f those rights. Kelsen adds to this by arguing that Article 51 is only applicable i n the event o f an actual armed attack.  180  This can be supported by the International Court o f Justice's (ICJ)  decision i n the case Nicaragua v United States (Nicaragua), which shall be discussed i n m  greater depth later i n the chapter, where it was held that self-defence was a pre-existing right o f customary nature, which they desired to preserve.  William Burke-White, "An International Constitutional Moment", Harvard International Law Journal 43 (2002). • • Article 51, United Nations Charter available at http://www.un.org. 177  178  1 7 9  1 8 0  A. Goodhart, "The North Atlantic Treaty of 1949", R.C. (1951) (II). H. Kelsen, "Collective Security and Setf-Defence Under the Charter", Law of the United Nations, Vol. 42 (1948)  792. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), ICJ Rep. (1986) 14, 94. 181  55  It can be noted, Article 51 was inserted into the Charter by U N members, not for the purpose o f defining the individual right o f self-defence, but with the objective o f clarifying the position i n regard to collective understandings for mutual self-defence.  182  There was fear amongst the delegates to the San Francisco Conference that the U N Charter may affect the Pan-American Treaty, known as the Act of Chapultepec, which was signed by the majority o f the American republics o n March 8, 1945, one month prior to the San Francisco Conference, declaring that aggression against one American State would be considered an act o f aggression against all. It is important to note that Article 51 was originally drafted to be included i n Chapter V I I I o f the U N Charter, which would have limited the right o f collective self-defence to regional organisations, requiring prior endorsement by the U N Security Council to exercise the right o f self-defence.  183  I n the  resulting debate, the delegates intended the customary, right o f self-defence to remain unchanged and sought to prevent a single member o f the U N Security Council from being able to prevent a regional organisation from taking action by using its veto power.  184  Consequendy, the delegates collectively agreed to place Article 51 within Chapter V I I .  Further history that encompasses the drafting o f Article 51 suggests that U N legislators left the idea o f "armed attack" deliberately open for interpretation amongst its Member States.  185  Importandy, however, the wording o f Article 51 is sufficiendy broad to  permit the use o f self-defence against terrorist acts originating from non-state actors. T h e broadness o f the text, however, seems to imply an element o f caution. It appears as though the evidence o f the facts, rather than an uncompromising rejection o f the applicability o f the right to self-defence, largely relate to criticisms o f the self-defence doctrine against acts o f terrorism.  186  F o r example, the 1986 U S bombings o n Libya i n response to the La Belle  nightclub attack, concentrated o n two issues: First, whether the murder o f a U S serviceman overseas gave rise to an armed attack under Article 51; and, second, the issue o f the necessity and proportionality o f the attacks.  1 8 2  187  See "Verbatim Minutes of the Fourth Plenary Session", April 28, UN Doc. 24 (1945) at 313, acknowledging the  need for organised coercive action. 1 8 3  Richard J. Erikson, "Legitimate Use of Military Force Against State-Sponsored International Terrorism",  Government Printing Office (1989) discussing the origins and significance of Article 51. D.W. Bowett, "SelfDefence Under International Law", Manchester University Press (1958), arguing that the fear that single Member's veto could prevent action by the regional organisation. 184  1 8 5  Stanimir A. Alexandrov, "Self Defence Against the Use of Force in International Law", Kluwer International  (1996). 1 8 6  Thomas M. Franck, "Recourse to Force: State Action Against Threats and Armed Attacks", Cambridge University  Press (2002). 1 8 7  William O'Brien, "Reprisals, Deterrence and Self-Defence in Counter-Terror Operations", Virginia Journal of  International Law 30 (1990). 56  The shift i n the stance to the aforementioned i n response to the September 11 2001 attacks, can be argued is a result o f a change i n fact, rather than a change i n law. T h e implementation o f the self-defence right i n response to these atrocities is far less controversial, however, as the claim to self-defence within the context o f the raid i n Libya. This is due to the fact that the September 11 attacks resulted from a terrorist attack aimed at targets i n the U S , rather than overseas. Furthermore, the severity o f the September 11 attacks were significandy greater i n magnitude, leading to the declaration by N A T O o f "clear and compelling" justification for the use o f self-defence.  188  This all supports the  argument that it is the circumstances rather than the law that has changed.  The U K  1 8 9  and U S  1 9 0  have, i n addition, consistendy upheld the stance that the right  o f self-defence also applies when an armed attack is imminent, but yet to take place. This dates back to the Caroline incident o f 1837, which involved U K forces i n Canada taking action against a merchant vessel (the Caroline) that was being used by Canadian rebels and their American supporters i n attacks against Canada. British forces attacked the vessel while she was o n U S territory o f the Great Lakes, destroying her and killing members o f the crew. A s a result, U S forces arrested Lieutenant M c L e o d , a British officer involved i n the incident, o n charges o f murder. Following his arrest, the U K government argued that its forces had exercised the right o f self-defence, subsequendy requesting the release o f M c L e o d . T h e resulting statement by U S Secretary o f State, Daniel Webster, to the British government is regarded as being o f fundamental importance within the right o f selfdefence under international law today.  191  Here, Webster identified that the right o f self-  defence did not depend upon the U K having already been subject o f an attack, but acknowledged that there was a right o f anticipatory self-defence provided that there was  "necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment f deliberation. "  1 9 2  Further, it is important to establish that the Caroline precedent has since been  Supra note 7. Statements by the UK government regarding the 1986 attack by the US on Libya, 57 Brit. Y.B. Int'l Law 494,639-641 (1986). Statements by the US government at the time of its attack on Libya, "Legal Regulation of Use ofForce", 19801988 Digest 1 at 3405-06. 188 189  190  191  Michael Lacey, "Self-Defence or S elf-Denial: The Proliferation of Weapons of Mass Destruction", 10 Ind. Int'l &  Comp Law Review 293, 294 (2000) discussing how the Caroline standard still applies to issues of self-defence in recent US military action against Libya, Afghanistan and Sudan. Letter from Daniel Webster to Henry S. Fox (April 24,1842) available at 29 Brit, and Foreign State Papers 1129, 1138 (1857). The British government accepted the definition of Mr. Webster in a letter sent by Lord Ashburton to Mr. Webster on July 28,1842, but disagreed on the facts: 192  "[AJgreeing therefore, on the general principle and on the possible exceptions to which it is liable, the only between us, is whether this occurrence came within the limitsfairly to be assigned to such exceptions: whether, to  57  applied by numerous International Tribunals, including N u r e m b e r g  193  and T o k y o  194  ,  suggesting that the right o f anticipatory self-defence against imminent threats o f armed attack is part o f the customary law right preserved by Article 51. According to the Caroline principle, therefore,  the preconditions  "proportionality", and "immediacy".  for acting i n self-defence  are: "necessity",  195  W e can also identify an apparent contradiction that appears to exist within Article 51. First, the Article indicates that, "[NJothing in the present Charter shall impair the inherent right of individual or collective self-defence," however, this "inherent right" is immediately incorporated i n the same sentence by the words, "if an armed attack occurs...." This appears to suggest that 196  the U N Contracting Parties agreed to surrender whatever inherent right o f self-defence existed under customary international law. Several political analysts have, however, argued that the right o f self-defence under customary international law contains no "armed attack" provision.  197  This contradiction advocates that U N Member States may have less o f a right  over non-members to defend themselves, and also proposes that customary international law, within the scope o f self-defence, continues to exist alongside treaty law.  198  However, it  must be pointed out that Article 51 does not replace or undermine the doctrine o f selfdefence identified within customary international law. D. W. Bowett confirms this, stating:  there was "that necessity of self-defence, instant, overwhelming, leaving no choice of means which preceded the d Caroline", which moored to the shore of the United States?"  Letter of Mr. Webster to .Lord Ashburton, August 8,1842, in 30 Brit and Foreign State Papers 1841-1842 at 196 (1857), arguing that the act of destruction of the Caroline was wrong:  T would appeal tojou, Sir, to say whether the facts whichyou say would onlyjustify the act, vi%., "a neces defence, instant, overwhelming leaving no choice of means and no moment of deliberation", were not applicable to high a degree as they ever were to any case of a similar description in the history of nations".  Mr. Webster repeated his definition in his letter of August 6,1842 to Lord Ashburton:  "[UJndoubtedlj it isjust, that while it is admitted that exceptions growing out of the great law of self-defence those exceptions should be confined to cases in which "the necessity of that self-defence is instant, overwhelming choice of means and no momentfor deliberation."  13 Ann. Dig. & Rep. Pub. Int'l Law cases 203, 210; International Military Tribunal (Nuremberg), 41 American Journal Int'l Law 172, 205 (1947). International Military Tribunal at Tokyo (1948). Robert Ago, "Addendum to the 8' Report on State Responsibility", (1980) 2 Y.B. Int'l Law Comm'n 52, para. 83, UN Doc. A/CN.4/318/ADD.52. Supra note 176. Abraham D. Sofaer, "US Acted Legally in Foreign Raids", Newsday (New York) (October 19, 1998). Sofaer, who is a former State Department Legal Advisor, argues that, "Self-defence allows a proportionate response to every 193  194 195  h  196 197  use of force, notjust armed attacks." 198  Myers S. McDougal, "The Soviet-Cuban Quarantine and Self-Defence", 57 Am. J. Int'l Law 597, 599-600 (1996). 58  "fj]t is.. .fallacious to assume that members have only those rights which the Charte  accords to them; on the contrary they have those rights which general international law accords to  except in so far as they have surrendered them under the Charter.... As we have seen, the view  Committee I at San Francisco was that this prohibition left the right of self-defence unimpaired; in t words of the rapporteur  "the use of arms in legitimate self-defence remains admitted and  unimpaired.".. .The history of Article 51 suggests nothing of an additional obligation; the travaux  preparatories, to which we may legitimately resort in the case of ambiguity, suggest only that the Ar should safeguard the right of self-defence, not restrict it. "  m  A s a result, we can conclude that Article 51 is only significant on the basis that there is a "customary" or "inherent" right to self-defence.  200  It also identifies certain prerequisites  to the rules contained within customary international law o f responding independendy with lawful force to unlawful force.  A s was established in Chapter One, both the U K and U S have consistendy justified the use o f military action against al-Qaeda in Afghanistan o n the right o f self-defence under Article 51, and not on any U N Security Council mandate. This reliance is evident in documents sent by the U K and U S to the Security Council, identifying the action they were going to take against Afghanistan.  201  In addition, the U K Charge dAffairs stipulated that:  ".. forces have now been employed, and exercised the inherent right of individual and collecti  self-defence, recognised in Article 51, following the terrorist outrage of 11 September, to avert the cont  threat of attacks from the same source. My government presented information to the United Kingdom  parliament on 4 October which showed that Osama bin Laden and his al-Qaeda terrorist organisation  have the capability to execute major terrorist attacks, claimed credit for past attacks on United Sta targets, and have been engaged in a concerted campaign against the United States and its allies. One stated aims is the murder of United States citizens and attacks on the allies of the United States. '  £ 0 2  W e have to ask the question, however: did the right o f self-defence form an acceptable legal basis for "Operation Enduring Freedom"? First, we have to argue as to whether the U K and U S should have first obtained Security Council authorisation before 199 D.W. Bowett, "Self-Defence Under International Law", Manchester University Press (1958). 200 Michael F. Lohr, "Legal Analysis of US Military Responses to State-Sponsored International Terrorism", 34 Naval  Law Review, 1,16 (1985). Supra note 10. UN Security Council letter dated 7 October 2001 from the Charge d'Affairs a.i. of the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council, UN Doc. S/2001/947 (2001). 201  2 0 2  59  resorting to force? In answering this, it has to be established that there is no legal prerequisite requiring them to do so. The self-defence right under Article 51 is vested i n states, and exercising it does not require prior consent from the Security Council. The only instance when this is not applicable is when the Security Council "has taken measures necessary to maintain international peace and security". This condition has, however, been the focus o f '  •  •  restncuve interpretation.  203  Second, was the action by the U S and U K a response to an armed attack within the scope o f Article 51? A s has been discussed earlier i n the Chapter, the theory o f an armed attack is not restricted to state intervention. Nonetheless, the attacks o n September 11, 2001, took place several weeks prior to the initiation o f "Operation Enduring Freedom". Furthermore, we have to cautiously distinguish between the doctrine o f self-defence, which is lawful at international law, and reprisals, which, i f involve the use o f armed force, become unlawful under the U N Charter. The requirement o f necessity i n self-defence confirms that it is not sufficient that force is used after an armed attack, but it must be necessary to deter that attack. A s a result, it can be argued that the use o f force i n response to an armed attack that has already taken place does not satisfy this requirement, and can subsequendy  be labelled a reprisal. Some have argued  "Operation Enduring Freedom"  constituted more o f an act o f reprisal, rather than an act i n self-defence. This ideology is, however, unpersuasive, as the events o f September 11, 2001, cannot be considered o n there o w n merit. The attacks o n the U S embassies i n Tanzania and Kenya i n 1998, and the USS Cole, signalled that al-Qaeda was targeting the U S and that future attacks were inevitable. Furthermore, the U S and several European states also apprehended a number o f individuals who indicated that more attacks were planned, evidence i n Afghanistan confirming supporting this.  205  204  and found documentary  Under these conditions, there seems  litde difficulty i n categorising the threat o f future attacks from al-Qaeda as imminent. Providing that military action i n Afghanistan is perceived as being preventative, rather than an act o f retaliation, it seems impossible to identify the operation as being anything other than i n self-defence.  Another issue that needs to be addressed is whether the U K and U S ' refusal to recognise the Taliban regime as forming part o f the Afghanistan government affects the 2 0 3  Christopher Greenwood, "New World Order or Old?: The Invasion of Kuwait and the Rule of Law", 55 Modern  Law Review 153,164-165 (1992). 204 p  e t e r  Finn, "Germans Identify More Terror Suspects; Police Watch Five People Who May Have Provided Suppor  September 11 Hijackers", Washington Post (November 17, 2001) 205  "Recovered al-Qaeda Documents Reveal Plansfor Other Terror Acts: Official"Agence Fr.-Presse (February 1,2002).  60  legality o f "Operation Enduring Freedom"? O n closer inspection this becomes void, due to the fact that, although the Taliban were the de facto ruling government, they were i n breach o f international law by perrnitting al-Qaeda to operate from within its territory, and developing close links with a known international terrorist organisation. The  U K government  confirmed al-Qaeda's association with the Taliban by stating:  "...fljn 1996  Osama bin Laden moved back to Afghanistan. He established a close  relationship with Mullah Omar, and threw his support behind the Taliban. Osama bin Laden and the  Taliban regime have a close alliance on which both dependfor their continued existence. They also shar same religious values and vision."  "...[OJsama bin Laden has provided the Taliban regime with troops, arms and money to fight the Northern Alliance. He is closely involved with Taliban military training, planning and operations. He  has representatives in the Taliban military command structure. He has also given infrastructure assistance and humanitarian aid. Forces under the control of Osama bin Laden havefought alongside the Taliban in the civil war in Afghanistan."  ". ..[OJmar has provided bin Laden with a safe haven in which to operate, and has allowed him to establish terrorist training camps in Afghanistan. Theyjointly exploit the Afghan drugs trade. In return for active al-Qaeda support, the Taliban allow al-Qaeda to operate freely, including planning, training and preparingfor terrorist activity. In addition the Taliban provide securityfor the stockpiles of drugs.  ,£06  Under international law, a state must not permit its territory from being used as a base  for  attacks  on  other  states,  whether  by  regular  armed  forces  or  terrorists. Additionally, Afghanistan violated several specific obligations imposed by the 207  Security Council flowing the 1998 embassy bombings.  208  The Caroline principles on self-  defence, discussed earlier, clearly permitted such action, and the undoubted changes i n international law since then have not abolished this aspect o f the right o f self-defence. However, because the Taliban clearly indicated that it would strongly oppose any foreign forces entering its territory to remove al-Qaeda, it can be argued it exposed its own forces to a lawful attack in exercise o f the right o f self-defence.  206  "British  Release  Evidence  Against  209  bin  Laden",  available  at  http://www.salon.com/news/2001 / l 0/04/british_evidence.htm. UN General Assembly definition on Aggression under Resolution 3314, available at http://www.un.org UN Security Council Resolution 1333, UN SCOR 55 Sess., 4251 mtg., UN Doc. S/RES/1333 (2000).  207 208 2 0 9  th  st  Christine E. Philipp, 'The Status of the Taliban: Their Obligations and Rights Under International Law", 6 Max  Planck Y.B. of UN L. 559 (2002). 61  It is also important to note that the action taken i n self-defence, i n the form o f "Operation Enduring Freedom", needed to be necessary and proportionate.  It can be  submitted that, as the U S and U K were faced with the possibility o f further attacks o f similar magnitude and repercussion to those o f September 11, 2001, both criteria were satisfied. Furthermore, although the effect o f the U S and U K involvement i n Afghanistan altered the balance o f the civil war there, it is difficult to see how the intervention could have succeeded i n removing the Taliban regime and al-Qaeda bases without going that far.  It is important to also identify that the issue o f the gravity o f the terrorist act has to be considered, when applying Article 51 to acts o f terrorism. The ICJ i n the Nicaragua case originally implemented the gravity condition, within the definition o f armed attack, with the scale and effect test. The Court held that:  ".. .[T]he prohibition of armed attacks may apply to the sending by a state of armed bands to the territory of another state, if such operation, because of its scale and effects, would have been classified armed attack rather than a merefrontier accident had it been carried out by regular armedforces.  ,e>0  Although the Court did not identify which threshold must be satisfied i n order for the use o f force to qualify as an armed attack, it nonetheless stated that this would only be the case i f the acts o f armed bands "occur on a significant scale.' This has been criticised by some m  analysts, describing it as a motivation for low-intensity acts o f violence.  212  Furthermore, it  has also been criticised that the quantitative distinction between armed attacks and frontier confrontations  is defective  due to the  fact that the prerequisites o f necessity  proportionality would provide sufficient safety against the excessive use o f force.  and  213  In adopting the ICJ's formula i n Nicaragua to "Operation Enduring Freedom", we have to argue as to whether the ruling is superfluous and inconsistent with the situation i n Afghanistan? In response, according to Philipp, the military action by the U S and U K implies that the ruling i n Nicaragua is not redundant. O n the contrary, "Nicaragua is dead, long live Nicaragua."  214  Moreover, the application o f Article 51 does not solely rely upon the  question o f whether acts o f terrorism can be associated with state-related acts o f violence,  2 1 0  Nicaragua v US, 1986 ICJ at 195.  Ibid at 198. Michael Reisman, "Allocating Competences to Use Coercion in the Post Cold-War World: Practices, Coalitions and Prospects", in Damrosch and Scheffer, "Law and Force in the New International Order" (1991). Ibid. 211  2 1 2  213  214  Supra note 207. 62  but the foremost issue is that gravity does, and should, still be relevant i n the context o f terrorist acts.  4.4 A P P L Y I N G T H E "NICARAGUA"JUDGEMENT  TO"OPERATION ENDURING  FREEDOM" AND T H E RIGHT OF SELF-DEFENCE  O n e certainty that has evolved post-September 11, 2001, is that the "effective control test", identified by the International Court o f Justice (ICJ) i n the Nicaragua case, has been overturned. I n response, a practical alternative has since evolved, k n o w n as the "overall control test", implemented by the Appeals Chamber o f the International Criminal Tribunal for the Former Yugoslavia ( I C T Y ) , i n the case Prosecutor v Tadic. This test relieves the 2iS  defending state from the idealistic obligation that it is required to provide evidence o f specific instructions o f the host state relating to the terrorist act, prompting the right to self-defence. In applying this test to the military campaign led by U S and U K forces i n Afghanistan, it can be submitted that this would suffice i n justifying the action against the Taliban and al-Qaeda. Referring back to the Nicaragua "effective control test", the issue here was whether the U S could be held accountable for breaches o f international humanitarian law committed by military and paramilitary groups o f Nicaraguan rebels. T h e I C J held that the acts committed by the Nicaraguans could not be ascribed to the U S due to the fact that they had not "directed or enforced" the perpetrator o f the acts:  216  I n linking this judgement to  the use o f force against al-Qaeda and the Taliban, we can argue against the earlier views expressed by Phillip, by submitting that the action cannot be justified merely o n the Nicaragua requirements. This is because no state has been i n a position to prove the Taliban's association to al-Qaeda and their knowledge, and involvement i n , the September 11, 2001 attacks.  217  Furthermore, even i f the Afghanistan government had direcdy provided  the September 11 terrorists with the aeroplane, tickets, and other requirements necessary to carry out the hijacking, such support would still not constitute an armed attack carried out by the U S and U K .  A n alternative implication o n the overturning i n Nicaragua lies i n the growing use o f force i n response to acts o f hostility o n Article 51. T h e reduced threshold for linking terrorist acts to non-state actors will force states to rely o n Article 51 to justify military  215 216  2 1 7  Prosecutor v Tadic, ICTY, Appeals Chamber, July 15 1999, para. 137. Supra note 208, para 115. Mark A. Drumbl, "Victimhood, in Our Neighbourhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the  International Legal Order", North Carolina Law Review 81 (2002).  63  action, rather than exercise a right to self-defence under customary international law or the state o f necessity.  It also has to be noted that Nicaragua did not explicidy address the issue o f anticipatory self-defence, as the Court stated: ". ..[since] the issue of the lawfulness of a response to  the imminent threat of armed attack has nor been raised.. .the Court expresses no view on that issue." The Court also addressed that i n interpreting "armed attack", whether states might establish an exception to the general principle o f non-intervention, will depend on whether  they "justified their conduct by reference to a new right of intervention or a new exception to the principle its prohibition."  219  Meanwhile, "[Rjeliance by a State on a novel right or an unprecedented exception to  the principle might, if shared in principle by other States, tend towards a modification of customary international law.'*  20  In contrast to this, we can note the dissenting opinion o f Judge  Schwebel, who, it can be argued sides with the views o f Phillip, by subscribing to the view that, under Article 51, self-defence was not limited to a situation "if, and only if, an armed attack occurs"™  In deciding whether the "effective control test",, established i n Nicaragua, or the "overall control test", adopted by the I C T Y i n Tadic, is more appropriate to "Operation Enduring Freedom", it must be said, the principle still remains the same: the defending state is under a duty to resort initially to diplomatic means i n requesting the government i n whose territory the terrorist acts have been planned, to take suppressive measures. Furthermore, i f it becomes apparent that the host state is unable or unwilling to act, the injured may, as an ultima ratio measure, initiate military action i n order to prevent the threat. This is based o n two foundations: First, a formation o f sovereignty as responsibility, requiring protective duties i n relation to third states. A n d , second, the relative quality o f territorial integrity, providing states with the obligation to comply i n defensive action o f other states, i f no other alternative is accessible, i n order to put an end to an imminent threat.  222  The difficulties i n these criteria, however, lie i n the permissible scope o f self-  defence. It can be argued that it may seem rational to permit military action against states i n which training centre's or global terrorist camps are located, however, the argument that subsists, is i n relation to the states that only train minimal numbers o f terrorists, or states that have supported terrorists, or complied i n acts o f terrorism. 2 1 8 2,9  220  221  2 2 2  Nicaragua v US, 1986 ICJ at 103. Ibid at \09. Ibid. Ibid at 358.  Barry A. Finstein, "Operation'EnduringFreedom", Journal of Transnational Law & Policy 11, 284 (2002). 64  The right to self-defence is evidendy i n a shifting process. A s identified, several o f the armed attack prerequisites under Nicaragua have either been reversed or disputed, namely i n the "effective control test". A s a result, an altered scope o f Article 51 emerges i n the evaluation o f necessity and proportionality. Moreover, the threats to a widened scope o f self-defence  exist, namely i n the uncertainty and indeterminacy o f self-defence.  However, i n referring to the aphorism o f 'Nicaragua is dead, long live Nicaragua' \ it 221  becomes evident that the potential for mistreatment is considerably reduced i f states adopt the evidentiary threshold established by the ICJ i n Nicaragua, requiring that: (1) states carefully evaluate the evidence as to who is responsible for the attack; (2) that the facts relied upon made public; and (3) the facts are subject to international examination and invesugauon.  224  4.5 A L T E R N A T I V E S T O S E L F - D E F E N C E  W h e n the conditions for self-defence are not satisfied, a state may resort to three alternatives: First, it may seek Security Council authorisation for the use o f force. Second, it can employ coercive countermeasures. policing.  A n d , third, it can engage i n cooperative  225  The Security Council may authorise the use o f armed force and lesser measures by a state, under Article 39 o f the U N Charter, when they believe that a threat to the peace, breach o f the peace or acts o f aggression subsist, or are imminent.  226  The use o f force  authorised must, however, comply with the necessity, proportionality and discriminatory o f the circumstances.  227  It must be noted that i n two cases that exist, where the Security  Council sought the extradition o f known, wanted terrorists, economic sanctions were imposed, rather than adopting the use o f force or forceful apprehension o f persons.  223  228  Ibid.  The ICJ held that the claim to use force in self-defence must be supported by credible evidence of an armed attack and of the attacker's identity. Nicaragua at 110, para 232-234. For analysis of international police action see, Jost Delbrck, "The Fight Against Global Terrorism: Self-Defence or Collective Security as International'Police Action?", 44 Ger. Yearbook of International Law 9,19-24 (2001). Article 39 United Nations Charter available at http://www.un.org. Mary Ellen O'Connell, 'Debating the Law ofSanctions", 13 Eur. J. Int'l Law 63, 71-72 (2002). The Security Council demanded that the Taliban hand over Osama bin Laden to a country where he was under indictment in Resolution 1267, which was fortified by Resolution 1333. The Security Council also implemented sanctions on Libya until it extradited two individuals suspected of the bombing of the Pan Am flight over Lockerbie, Scodand (1992 S.C. Rules 748 UN SCOR, 3063 Meeting). See also Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from Aerial Incident at Lockerbie (Libya v US) 1992 ICJ 114 (April 14) (Request for the Indication of Provisional Measures). 224  225  226 227  228  rd  65  W h e n the right o f self-defence against a state is not prompted, and when the Security Council does not act, an alternative for the victim o f a terrorist act lies i n the domestic criminal justice system o f the states involved. Terrorists and groups carrying out attacks without the sponsorship and support o f the state can, consequendy, be labelled as c o m m o n criminals, and therefore fall under the jurisdiction o f the state o n whose territory they were captured. Moreover, it is evident that territorial states also have an obligation to extradite, or try individuals' accused o f terrorist acts.  229  It must also be noted that failure to realise certain obligations under international law, mcluding the extradition and trial o f accused terrorists, may result i n the right to implement countermeasures, which are acts that violate the law, but are i n response to prior infringements.  230  These  countermeasures  must be proportional to the injury  sustained, and are only available i f the involved parties have no unequivocal obligations to use alternative means o f dispute settlement.  231  Countermeasures may also be taken by the  injured states, however, i n dealing with cases involving universal jurisdiction crimes, it may be lawful for any state to adopt the necessary measures.  232  I n referring to the attacks o n  September 11, 2001, it can be argued that as the atrocities resulted i n the international murder o f thousands o f innocent individuals, the attacks subsequendy qualify as acts against humanity, and therefore universal jurisdiction crimes.  233  A s a result, it can be argued  that any state's national court should be given the power to exercise judicial jurisdiction over individuals accused o f universal jurisdiction crimes.  4.6  234  OVERVIEW  This chapter has assessed the legality o f the military deployment i n Afghanistan by the International Coalition Against Terrorism (ICAT) i n "Operation Enduring Freedom". Throughout, it has been submitted that that the gravity o f the offences committed by the al-Qaeda terrorists o n September, 11, 2001, justifies, i n principle, the actions by the U K and See Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), (September 23, 1971, 24 U.S.T. 565); Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking), (December 16,1970, 22 U.S.T. 1641). See Case Concerning the Gabcikovo-Nagymaros Project, Hungary v Slovakia, ICJ 1 (1998); Case Concerning the Air Services Agreement, US v France, 18 R.I.A.A. 416 (1978). See Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, UN GAOR, 56 Sess., UN Doc. A/RES/56/83 (2002). Id articles 40,41. Frederic L. Kirgis, 'Terrorist Attacks on the World Trade Centre and the Pentagon", ASIL (2002); also Rome Statute of the International Criminal Court, UN Doc. No. A/Conf. 183/9 (1998). Kenneth Randall, "Universaljurisdiction Under International haw", 66 Texas Law Review 785 (1988). 2 2 9  2 3 0  231  th  2 3 2  2 3 3  2 3 4  66  U S , under the right o f individual and collective self-defence; a right that is contained both at customary international law and within the U N Charter. I n spite o f the establishment o f the right to self-defence, particular areas have been identified as to the manner i n which the U K and U S conducted the military operation.  The foremost criticism surrounding the legality o f "Operation Enduring Freedom" lies i n determining whether the Operation remained necessary and proportional to the U S ' self-defence after the fall o f the Taliban government. Where states are confronted with attacks that do not permit armed force i n self-defence, they must use criminal law enforcement methods, backed by countermeasures. These alternatives to self-defence have much to acclaim them i n a world where terrorism appears to be escalating, and where the means o f armed force is frequendy disproportionate to any injury suffered or threatened.  Amidst the determination o f extinguishing the global threat posed by international terrorism, and o f eliminating those responsible for the September, 11, 2001 attacks, there have, however, been huge civilian casualties during "Operation Enduring Freedom". This has been, and continues to be, an unfortunate aspect o f the U K and U S ' response. It is significant to conclude by acknowledging the comments o f U N Secretary General, K o f i A n n a n , while addressing the U N General Assembly i n November 1999:  "[W]e are all determined tofightterrorism and to do our utmost to banish itfrom the face of the earth. But the force me use tofightit should always be proportional andfocused on the actual terrorists. We cannot, and must not,fightthem by using their own methods — by inflicting indiscriminate violence and terror on innocent civilians, including children.  ,£35  Kofi Annan, UN Secretary-General addressing the UN General Assembly, 18 November 1999, available at http://www.un.org/NewLinks/index99/oct-nov-dec99.htm. 235  67  CHAPTER V 5.1 Is T H E R E J U S T I F I C A T I O N T H A T D E T A I N I N G " U N L A W F U L C O M B A T A N T S " A N D I N D I V I D U A L S S U S P E C T E D O F T E R R O R I S T A C T I V I T Y I N G U A N T A N A M O B A Y IS A N ADEQUATE RESPONSE T OT H E GLOBAL T H R E A T OFTERRORISM A N D CONSISTENT WITH RESPECT FOR INTERNATIONAL H U M A N RIGHTS NORMS?  T h e U S response to the events o f September 11, 2001, represents the largest deployment o f military force by any State since the Persian G u l f W a r ended a decade earlier. I n the course o f one year, the United States conducted major air and ground operations against a foreign State, toppled its government, pursued suspected terrorists across at least one international border, detained thousands o f Afghan and other nationals, and initiated plans for possible military tribunals for some o f those captured. In pursuance o f these policies, the U S Government has pledged to continue this operation for an indefinite period.  Although most o f these actions address the effectiveness, political wisdom, or morality o f U S measures, a significant number o f influential entities have offered their opinions as to the legality o f the U S policy on combating the increased threat o f both global terrorism and hunting down individual suspected terrorists.  The claims o f the United States about the lawfulness o f its actions and the responses to them have addressed both divisions o f international law concerning force the law on the recourse to fotce,jus ad bellum, and the law o n the conduct o f hostilities,ykr in hello. Although these divisions are not entirely distinct, they have different historical backgrounds and modern contours. F o r example, certain basic norms o f jus in hello, such as those protecting civilians and prisoners o f war, long predate the principles o f jus ad bellum, i n that States' initiation o f force against other States are generally limited to self-defence or cases o f United Nations authorisation.  236  W e must at this stage acknowledge the criticism that surrounded President Bush's classification o f the attacks on September 11, 2001 as "acts o f war" and his commitments to wage a war, which can be argued constituted an unequivocal animus belligerendi. The ambiguity emerged as to whether there was a basis under international law for any  UN Charter Arts. 2(4), 42, 51; Lawrence Weschler, "International Humanitarian haw. An Overview in the Crimes of War. What the Public Should Know.", Gutman & Rieff (1999).  236  68  justification and grounds  for engaging i n such a conflict, that many consider an  "aggression" within the meaning o f the General Assembly's definition o f aggression within U N Resolution 3314, identified earlier i n Chapter Four. I n order to answer this, we need to refer back to Chapter O n e o f this thesis i n recognising the uncertainty surrounding what actually constitutes a terrorist under international law. Terrorists may be perceived merely as "domestic criminals", whose capture, trial and punishment are subject to the rules relating to international jurisdiction and treaties governing extradition. O n the other hand, a terrorist may also be perceived as "an international criminal", whose status may express broader jurisdictional rights. Hence we may once again refer to the accepted cliche o f "one man's terrorist is another man'sfreedomfighter."  ?i7  In light o f the atrocities o f September 11, 2001 a variety o f proposals emerged for bringing the perpetrators to justice. A m o n g the propositions were included the use o f courts-martial, the creation o f a special tribunal (whether with the backing o f the United Nations or otherwise) and prosecution i n U S Federal Courts.  238  O n November 13, 2001,  President Bush issued a military order entided "Detention, Treatment and Trial of Certain NonCitizens in the War Against Terrorism" (Military Order).  239  I n addition to the Military Order,  the U S also decided to implement military commissions to prosecute terrorists for violations o f the laws o f war and "other applicable laws".  240  The most prodigious step implemented by the U S however, emerged as captured Taliban and al-Qaeda detainees, designated as "unlawful combatants" by the Pentagon, were flown to the U S Naval Station at Guantanamo Bay, Cuba, o n January 10, 2002. Whilst President Bush was quick to label the September 11 attacks as "acts o f war", prisoner o f war status for those captured has been less accommodating. Consequendy, the U S Government agreed to treat the captured members o f the Taliban and al-Qaeda within the standards established i n the Geneva Conventions, but maintained its position that they be categorised as "detainees" rather than prisoners o f war. This categorisation is where vast criticism has emerged, resulting i n various non-governmental organisations, such as  See "Liberation Movements"; Encyclopaedia of Public International Law, Rudolph Bernhardt, vols. 1-4, North-Holland Publishing Company. 237  238 "Military Order, Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism" 66 Fed.Reg.  57, 833 (November 16, 2001). US Dep't of Defence, Military Commissions Order No.l, "Procedures for Trials by Military Commissions of  239  Certain Non-united States Citizens in  the War Against  Terrorism" (March  21,  2002)  http:/www.defenselink.mil/news/Mar2002/d20020321ord. Harold Hongju Koh, "We Have the Right Courtsfor Bin Laden", New York Times (November 23, 2001).  240  69  Amnesty International  , H u m a n Rights Watch and inter-governmental bodies such as the  Organisation o f American States  242  expressing concern about the legal status and treatment  o f the detainees. I n a memorandum to the B u s h Aciministration, Amnesty International raised several concerns relating to the conditions under w h i c h detainees being held at Camp X - R a y  (now Camp Delta) were being subjected  to.  A m o n g s t their  specific  concerns included the denial o f legal counsel or court access to detainees,  holding  243  prisoners under conditions that amount to cruel, inhumane, or degrading treatment, including torture  244  and mental and physical interrogation and the threat o f trial by military  tribunal and indefinite detention, even after potential acquittal. There is also evidence o f the detention o f three minors.  245  their concerns  treatment o f the  towards  the  It is evident that the European Parliament also expressed detainees,  subsequendy  calling for an  Amnesty International Press Release, "Al Calls on the USA to end Legal Limbo of Guantanamo Prisoners. "AMR 51/009/2002 flan 18, 2002); http:/web.amnesty.org/802568F7005C4453/0/926FDF718913300080256B430056163A?Ope John Mintz, "US Told to Rule on Detainees Status"; Washington Post (March 14, 2002). Memorandum to the US Government on the Rights of People in US Custody in Afghanistan and Guantanamo Bay, Amnesty International, AMR 51/053/2002 (December 12, 2002); http:/web.amnesty.org/802568F7005C4453/0/807F25047CCE168F0256B97004FD0C0? BBC "Inside Guantanamo", broadcast on BBC One (UK) on Sunday 5 October 2003, interviews of former Guantanamo detainees who have been released, pp. 1-21, testimonies of, among others, Sayed Abassin, Azmat Begg and Alif Khan: 'They put cuffs and tapes on my hands, taped my eyes and taped my ears. They gagged me. They put chai legs and chains around my belly. They infected me. I was unconscious. I do not know how they transported me. W in Cuba and they took me off the plane, they gave another injection and I came back to conscious. ..they tied me up a big prison and there were cages. They built it like a %po.... Each container housed 48 cages. Everyone was in individually. Every cage had a tap, a toilet and waterfor washing. There was room to sit but not enough to pray.. .t very light there as well. They were switched on all the time. Because of that our eyes were damaged andfrom const look through the netting. There were other blocks and we were not allowed to speak to the other people in the oth talked to them, they would draw the curtains and they would tale our bedding and blankets and they wouldn't give t three days.... They weren't letting us sleep, night or day. They were banging the walls with sticks, making lots of no Monica Whidock, BBC News (UK), "Legal Limbo of Guantanamo Prisoners", in which she reported: 'Two weeks ago, US defence department officials announced that they had three children between the ages 15 at Guantanamo.. .Last month, the US Secretary of State Colin Powell, wrote a strongly worded letter to Donald R deploring the imprisonment of children and old people, and saying that eight governments friendly to the US had c about the holding of their citizens." On 29 April, 2003 Irene Kahn, Secretary-General of Amnesty International, wrote to President Bush to express: "Deep concern at reports that several children are among the more than 600 detainees being held at the Base in Guantanamo Bay. We have written to your government on several occasions since the detainee transfers t Base began more than a year ago, and deeply regret that our concerns have gone unanswered and unremedied. Whi to seek such remedies, under International Law and standards, for the adult prisoners, we are now urgently requ assurances that the USA will abide by its international obligations in relation to theseyoung detainees.... The repor that a "handful" of children, described as being between the ages of 13 and 15years old, have been discovered by t in Guantanamo. It is reported that the children were transferred, possibly from the air base in Bagram, earlier this further note that a 16-year-old Canadian national, Omar Khadr, was transferred in late 2002 from Afghanistan Guantanamo Naval Base. We are concerned by reports indicating that it took six monthsfor even the Canadian Gover have access to him. Along with all the other detainees, he remains without access to legal counsel or his family. W concerned at reports indicating that the child detainees may be subjected to interrogation without access to any lega Article 40 on the Convention on the Rights of the Child states that, "every child deprived of his or her liberty shall ha to prompt access to legal and other appropriate assistance as well as therightto challenge the legality of the depriva her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any s 2 4 1  2 4 2  2 4 3  2 4 4  2 4 5  70  independent  tribunal.  In accordance with these views, the United K i n g d o m also  requested that its citizens detained i n Cuba be returned for trial, as shall be discussed later in the chapter.  247  W e must also acknowledge that the conditions, to which the detainees held within Guantanamo are being subjected to, have proven to be the foremost reason behind condemnation o f detention i n Guantanamo Naval Base. Prisoners are housed i n individual cells, measuring 1.8 by 2.4 meters. The cells are constructed o f chain-link fence, have metal roofs, concrete floors and are partially exposed to the outdoors. The majority o f the detainees, w h o are M u s l i m , are allowed to pray, but have been forced to shave their beards. This has consequendy drawn harsh criticism from a number o f human rights groups, as mentioned earlier, including Amnesty International w h o stated that the, "cages...fall below minimum standards for humane treatment. '  £ 4 8  The International Committee o f the R e d Cross  also complained that the release o f photographs depicting the detainees shackled and confined was exposing them to public curiosity, which is prohibited under the T h i r d Geneva Convention, together with deploring the prisoners' treatment. This was an unprecedented move, released to the public o n 10 October, 2003.  249  Furthermore such  adverse treatment suggests deviation from the Geneva Convention's requirement that Prisoners o f War be treated similarly to the armed forces o f the Detaining Power. However the U S Aclrninistration was quick to dismiss this criticism, with Vice President D i c k Cheney publicly stating that the detainees were, "probably being treated better than they deserve.  , £ 5  ° Such statements are consistent with the Administration's overall position that its  treatment o f the detainees is not only well within the bounds o f its legal obligations, but the bounds o f propriety as well.  A s a result, the objective o f this chapter is to discuss the legality o f Guantanamo Bay, and ask the following question: does the Naval Base deprive its inmates o f 246  2 4 7  "Euro MP's Seek Tribunal to Determine Cuban Prisoners' Status", Agence Presse-France (February 7, 2002). Sue Leeman, "Britain Wants Captives Tried at Home", The Telegraph (UK) (January 24,2002).  Exert taken from BBC News Online, April 27, 2002 at http:/www.bbc.co.uk/1 /hi/world/ Americas/1784700.S. ICRC President Jakob Kellenberger voiced objections over the prisoners' uncertain fate during meeting with US National Security Advisor Condoleezza Rice and Secretary of State Colin Powell in May 2003. Since then, prisoner camp commanders have confirmed 32 suicide attempts. Amanda Williamson of the ICRC's office in Washingron said: 2 4 8  2 4 9  "The main concerns today after more than 18 months of captivity is essentially that the internees in Gua have been placed beyond the law... they have no idea about theirfate... and they have no recourse We have witn anxiety and a rather serious deterioration in the psychological health of the detainees, linked very much, we beli ongoing uncertainty."  "No POW Rights for Cuba Prisoners", www.cnn.com/2002WORLD/americas. 250  CNN.com  (fan  15,  2002)  available at: http://  71  fundamental human rights? I n relation to this, it is important distinguish between the protection  o f "combatants"  251  and prisoners  o f war, analyse  the terminology o f  "combatant" versus "unlawful combatant" and discuss the legal protection o f individuals appointed with "combatant" status, all i n respect o f International H u m a n Rights norms within the Geneva Conventions. W e must also analyse the importance o f habeas corpus and the detainees' right to due process under the U S Constitution, and also address the issue as to which state jurisdiction the captives held at Guantanamo Bay fall under. Finally it is important to examine the U K ' s position regarding Guantanamo, and to conclude by identifying relevant legal challenges to the detention o f the individuals at Guantanamo Bay, from both within the United States and the United K i n g d o m .  5.2 D E T A I N E E S R I G H T S A N D R E M E D I E S U N D E R I N T E R N A T I O N A L L A W  5.2.1 G E N E V A C O N V E N T I O N S  Although the Detainees held i n Guantanamo have been denied the protection o f the United States Constitution, we must note that many o f them have substantial rights under International Law. While additional bodies o f law may apply to these prisoners, at a minimum the Geneva Convention Relative to the Treatment of Prisoners of War  252  o f August 12,  1949 (Geneva Convention III) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War  253  o f August 12, 1949 (Geneva Convention IV) may afford them a  generous body o f rights particularly relevant to their incarceration and potential trials before military commissions. A m o n g the rights that may be utilised by the detainees, are the right to representation by counsel, to confront witnesses, and to present witnesses and evidence favourable to the individual detainee.  The 1949 Geneva Conventions and the 1977 Additional Protocol I predominandy govern the protection o f prisoners o f war held during international conflicts. These are four separate Conventions, each governing a distinct aspect o f humanitarian law, and two additional Protocols adopted 28 years later after the Conventions. T h e four segments  See A. De Zayas; "Combatants", Encyclopaedia of Public International Law, vol. 1, Rudolph Bernhardt. Geneva Convention Relative to the Protection of Prisoners of War, done August 12,1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (hereinafter Geneva Convention III). Geneva Convention Relative to the Protection of Civilian Persons in Time of War, done August 12,1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (hereinafter Geneva Convention IV).  251  252  253  72  govern the amelioration o f the sick and wounded o f the armed forces i n the field; the amelioration o f the wounded, sick and shipwrecked members o f the armed forces at sea; the treatment o f prisoners o f war; and the treatment o f civilian persons i n time o f war. The T h i r d and Fourth Geneva Conventions regarding the treatment o f P O W ' s and civilians are the most relevant i n the context o f this chapter.  F o r the purposes o f examining the T h i r d and Fourth Geneva Conventions with respect to the detainees i n Guantanamo, we must establish its historical background within the U S legislative framework. The T h i r d and Fourth Geneva Conventions were ratified by the U S Senate on July 6,1955, and by Afghanistan o n September 26, 1956.  254  I n addition to  their application during declared wars, the T h i r d and Fourth Geneva Conventions also apply during any armed conflict between parties to the Treaties (High Contracting Parties). Thus, regardless o f whether the U S military incursion into Afghanistan amounts to a declared war, the provisions o f these Treaties apply.  It must be noted that  Article 2 o f the Convention applies i n all cases o f declared  war, i n any armed conflict and i n cases o f partial or total occupation, even i f that occupation is unopposed. The use o f the w o r d "armed conflict" demonstrates the intent for the Convention to apply broadly and a desire to prevent States from evading their obligations by refusing to designate a conflict as a "war". Furthermore, it states that even i f one o f the Powers is not a party to the Convention, countries that are parties are  "bound by  it in their mutual relations".  255  N o t all individuals captured during armed conflict, however, are entided to prisoner o f war status and the legal protections that stem from it. T h e basic principle identifies that individuals recognised as "combatants" under the 1949 Conventions and the Additional Protocol I are entided to be treated as prisoners o f war upon capture by an adverse party during armed conflict. Furthermore  Article 4 o f Geneva Convention III defines  the categories o f individuals that are entided to prisoner o f war status, and describes the treatment that they must accordingly receive. The text indicates that:  "Prisoners of War, in the sense of the present Convention, are persons belonging to one following categories, who havefallen into the power of the enemy: International Committee of the Red Cross; "Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977: Ratifications, accessions and successions" available at http:/www.icrc.org/eng. 2 5 4  2 5 5  Third Geneva Convention, Art.2, 6 U.S.T. at 3318. 73  (1)  Members of armedforces of a Party to the conflict as well as members of militias or volunteer corpsforming part of such armed forces.  (2)  Members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a Party to the conflict and operating in or outside their own  territory, even if this territory is occupied, provided that such militias or volunteer corps including such organised resistance movements, fulfil thefollowing conditions: (a)  that of being commanded by a person responsiblefor his subordinates;  (b)  that of having afixeddistinctive sign recognisable at a distance;  (c)  that of carrying arms openly;  (d)  that of conducting their operation in accordance with the laws and customs of war.  256  Additionally, under Article 5 o f Convention III, even where an element o f doubt exists as to whether the individual has committed an aggressive act, and having fallen into the hands o f the enemy come within any o f the categories stipulated within Article 4, such individuals are treated as prima facie entided to the status o f prisoner o f war until such time as the question o f status has been determined by a competent tribunal.  257  W e must also acknowledge the importance o f the Additional Protocol I 1977 , 25i  which broadens the category o f "lawful belligerents", or those combatants who are entided to the protection afforded by the laws o f war. I n this respect, we must consider Geneva Convention III, which initially established the criteria that combatants must meet i n order to be considered "lawful belligerents". However, one can argue that guerrilla movements on their o w n would fail to satisfy these prerequisites. Accordingly, Article 44 o f Protocol I, sought to extend legal recognition to certain types o f guerrilla activity by modifying the requirements o f distinctive emblems and carrying arms openly. Furthermore, it is also significant that Article 44(3) o f Protocol I, provides that, while combatants undoubtedly differentiate  should  themselves from civilians, it may be that "the nature o f  hostilities" will prevent such distinction. A s a result, when such circumstances arise, it can be argued that members o f a fighting force will retain "combatant" status and be entided to "prisoner o f war" status upon capture, provided that they "carry arms openly" during actual military engagements and are visible to the enemy during deployment i n preparation for such engagements. It is also important to note that captured combatants who fail to Geneva Convention III, Art.4, 75 U.N.T.S. at 138-139. Geneva Convention III, Art.5, 75 U.N.T.S. at 140. Protocol Additional to the Geneva Convention of 12 August, 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature December 12, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I]. 256 257  258  74  satisfy the minimurn criteria outlined i n Protocol I will not be entided to Prisoner o f War status, however such an individual will benefit from "equivalent" protections, with particular reference to the essential guarantees o f treatment and due process i n the context o f offences committed prior to capture.  259  Protocol I, however, has not been ratified by the  US.  It is o f importance also to recognise that under Article 44 o f Geneva Convention III, "combatants" entided to Prisoner o f War status upon capture will, o n the whole, fall into three categories: those w h o are members o f regular armed forces and duly authorised supporting personnel; O r combatants w h o , although otherwise satisfying the qualifying criteria, are not i n "uniform", but carry arms openly and distinguish themselves with some distinctive sign that is visible at a distance; O r combatants w h o otherwise satisfy the qualifying criteria, but w h o are prohibited from wearing any distinctive sign or clothing, even though they carry arms openly. It can be argued, with support from international publicists, most notably Hilaire McCoubrey  2 6 0  , that this third category has proved to be  contentious, associating itself as a "terrorists' charter". However these criticisms may be somewhat overstated, as terrorist organisations would fail to meet even the relaxed qualifications for "combatant" status due to their unwillingness to apply and abide by a "Geneva" regime i n their o w n activities. Moreover, few, i f any, organisations, which might be classified as terrorist i n nature, would meet the other prerequisites for combatant and prisoner o f war status, namely, responsible command and internal discipline incorporating observance o f the laws o f armed conflict. Finally, Protocol I's relaxation o f the general requirement for combatants to wear uniform or some other (distinguishing mark applies only where such a distinction is "not possible".  We must at this stage also address the ambiguity surrounding the categorisation o f "combatants" versus "unlawful combatants", i n order to fully understand its relevance to the detainees being held at Guantanamo Naval Base. It may be said that the term "unlawful combatant" is aimed at drawing a distinction between the civilian population and "combatants" i n armed conflict, i n order to avoid any uncertainty o f differentiation between the two groups. However it is clear that regular troops form the core o f "lawful combatants". I n order fully to understand the term "unlawful combatant", it can be argued that since the term does not appear i n any relevant Convention or Treaty, it should not be  259 260  Geneva Convention III, Arts. 44(4) and 45,1125 U.N.T.S. at 23-24. Hilaire McCoubrey, "InternationalHumanitarian Law", Ashgate/Dartmouth (1998). 75  recognised under International L a w .  261  W e can note that its original application was  adopted by the U S Supreme Court i n ex parte Quint? , which upheld military tribunals for a 62  group o f German saboteurs, wearing civilian clothes, having entered the U S by submarine. In this instance the U S Supreme Court distinguished between the "armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants". According to the Supreme Court, "lawful combatants are subject to capture and detention as prisoners of war", whereas unlawful combatants, i n addition to being subject to capture and detention, "are subject to trial andpunishment by military tribunals for acts which render belligerency unlawful". Consequendy, the Court ruled that spies and saboteurs were violators o f the laws o f war and so were not entided to prisoner o f war status.  In assessing the classification o f "combatant" versus "unlawful combatant" to a further level, it is important to refer to the relevant components o f the Conventions. Article 4(A) o f Geneva Convention II  2 6 3  Geneva  refers only to "armed forces".  However, as discussed earlier, the Geneva Conventions provide the criteria to distinguish civilians from combatants. Although there is an absence o f explicit text requiring members o f regular armed forces to wear uniform, this proposition is regularly applied as a procedural rule to determine the status o f an individual. A s a result, it can be argued, that any regular soldier that commits a belligerent act i n civilian clothes is no longer a lawful combatant, consequendy losing his privileges. T o recapitulate, it can be said "unlawful combatants" may be either members o f the regular forces or members o f resistance or guerrilla movements who do not fulfil the conditions o f lawful combatants. F r o m a differing perspective, it is important to note that Protocol I of 1977, does not rely o n "understood" criteria for regular armed forces. A r m e d forces o f a Party to a conflict are defined as:  "All organised armedforces, groups and units which are under the command responsible to that  Party for the conduct of its subordinates, even if that Party is represented by a Government or an Authority  not recognised by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shallforce compliance with the rules of international law of armed conflict. '  See "Liberation Movements"; Encyclopaedia of Public International Law, Rudolph Bernhardt, vols. 1-4, North-Holland Publishing Company. Ex parte Quirin, 317 U.S. 1, 21 (1942). Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12,1949, 6 U.S.T. 3217 [hereinafter Geneva Convention II]. Article 43(1), 1125 U.N.T.S. at 23. 261  2 6 2  2 6 3  2 6 4  76  m  Therefore, it can be said that Protocol I affords no protection for terrorists, nor does it authorise soldiers to conduct military operations masked as civilians. However, it can be argued that i n certain instances it is difficult to identify terrorists and distinguish them from lawful combatants, which may be the case o f certain individuals being held at Guantanamo Bay.  Furthermore, we must also pose the question as to whether al-Qaeda can be constituted  "A Party to the Conflict", under Article 4(A)(1) o f Geneva Convention III. A s  identified earlier, the T h i r d Geneva Convention is directed towards Governments or similar political entities. Additionally, this provision makes territory.  265  Since holding territory is essentially a political  reference  to a Party's  endeavour,  suggesting  occupancy, control and sovereignty, this supports the construction that the T h i r d Geneva Convention is concerned with political entities and not private organisations. A s a result, although al-Qaeda appears to be a private terrorist organisation pursuing political objectives, it can be argued that the fact that al-Qaeda claims no territory and does not seek to establish its own sovereignty, strongly suggests that they cannot be considered a Party to a conflict under the T h i r d Geneva Convention. Consequendy, its members will not qualify as prisoners o f war (POW's) under Article 4(A)(1) due to the fact that they are not part o f the armed forces o f a party to the conflict.-Furthermore, i n relation to Article 4(A)(6), it can be noted that P O W status will also elude most al-Qaeda members. This provision awards P O W status to inhabitants who spontaneously arm themselves to repel invaders, requiring only that they "carry arms openly and respect the laws and customs of war. '  2 6 6  O n this basis, we can  confidendy conclude that al-Qaeda members fail to satisfy this provision.  In summary, it is submitted that al-Qaeda members captured as a result o f the American military operations i n Afghanistan should not be considered P O W ' s under the T h i r d Geneva Convention. The only instance that may grant them P O W status is i f America recognises Al-Qaeda as a "Party to the Conflict." I n contrast, detainees who are members o f Afghanistan's Taliban militia, stand i n a more favourable position under Geneva Convention III. Since the Taliban was the ruling party o f a signatory to the Geneva Conventions, it can be argued that they qualify as a "Party to the C o n f l i c t "  267  even though  the United States tried to deny the legitimacy o f the Taliban forces by labelling them as "unlawful combatants". Furthermore, regardless o f the fact that the Taliban may lack the 265 266 267  Article 4(A)(2), 75 U.N.T.S. at 138. Article 4(A)(6), 45 U.N.T.S. at 140. Article 4(A)(2) Geneva Convention III 75 U.N.T.S. at 138. 77  military formality implied under Article 4(A)(1), it appears to satisfy the threshold criteria o f "other militia...belonging to a Party to the conflict" within Article 4(A)(2). The primary question, however, lies i n whether the Taliban followed the laws o f war. Instinctively, we would presume that the brutal nature o f the Taliban rule i n Afghanistan would count against them. However, whilst the Taliban mistreatment o f other Afghan civilians may constitute crimes against humanity under International L a w ,  268  it may not constitute an offence  against the narrower laws o f war, which have historically applied to armed conflicts between warring factions.  269  Therefore, unless the United States can point to specific,  unlawful Taliban policies, or conduct that occurred during the military campaign, the Taliban would probably qualify as armed forces or as militia that followed the laws o f war. A s a result, captured members o f the Taliban i n all probability qualify for P O W status under the T h i r d Geneva Convention.  5.2.2  INTERNATIONAL C O V E N A N T O N CIVIL A N D POLITICAL RIGHTS  A s discussed earlier within Chapter 3.2 o f this thesis, the United States ratified the I C C P R on June 8, 1992. The Covenant sets out certain inalienable rights due to all persons. The U S ratified the I C C P R , however, with the specific declaration that the Treaty was not self-executing. In other words, individuals cannot invoke it until it is incorporated into U S domestic legislation. Nonetheless, it is possible to use the I C C P R as persuasive authority to assist i n the interpretation o f domestic law through indirect incorporation.  270  W e can apply the I C C P R to the detainees being held i n Guantanamo i n a number o f ways. First, there is Article 9, which deals with an individual's right to liberty and security. The General Comment to this Article states that i f preventative detention is used to ensure public security, the detentions must meet the provisions set forth by the I C C P R .  2 7 1  Specifically the detention "must not be arbitrary and must be based on grounds and procedures  established by law, information of the reasons must be given and court control of the detention must b available....' Freedom from "arbitrary" detention is a relative right, however. Whether or 272  2 6 8 269  Kriangsak Kittichaisaree, International Criminal Law Review 227 (2002). William Winthrop; "Military Law and Precedents", Legal Classics Library; 1988 (1886).  Mark A. Sherman; "Representing Defendants in International Criminal Cases: Asserting Human Rights and Other Defences: Indirect Incorporation of Human Rights treaty Provisions in Criminal Cases in the United States Courts", 3  2 7 0  J. Int'l & Comp. L. 719, 749 (1997). ICCPR General Comment 8, (4), Right to Liberty and Security of Persons (Article 9); (June 30,1982). Article 9, General Comment states: 271  2 7 2  78  not detention o f an alleged terrorist or direct supporter o f terrorism is "arbitrary" has to be considered i n context and with reference to various interests at stake, such as the detainees' right to liberty and security, the rights o f others to liberty and security, and the interests o f the government i n maintaining law and democratic order. Under international human rights law, therefore, detention will not be deemed "arbitrary" i f it is reasonably necessary under the circumstances.  W h e n an individual is detained by a state, human rights law also requires the availability o f judicial review o f the detention. A s affirmed within Article 9(4) o f the Covenant, "anyone who is deprived of his liberty by arrest or detention shall be entitled to take  proceedings before a court, in order that the court nay decide without delay on the lawfulness of his de and order his release if the detention is not lawful." Access to courts for judicial determination o f rights and the right to an effective remedy are also guaranteed more generally under Article 14(1)_oi the Covenant,  273  and supplemented by the General Comments o f the H u m a n  Rights Committee established under Article 28 o f the Covenant.  274  It must be noted,  however, that the right to judicial review o f detention is a derogable right, "in time ofpublic emergency which threatens the life of the nation'* , when the existence o f such an emergency is 75  officially proclaimed and a denial o f judicial review is "strictly required by the exigencies of the situation." Such a denial, however, must not be inconsistent with the state's other obligations under international law, for example its obligations under the laws o f war and the customary prohibitions against denial o f justice to aliens. Therefore derogations are not permissible merely because they would be reasonable, but they must be "stricdy required" by the exigencies o f the situation.  A strong argument exists, however, that no circumstances should ever "strictly require" the denial o f judicial review o f detention, given that under the applicable standard concerning detention a State has such a low burden to justify detention to a court. D u e to (1) Everyone has the right to liberty and security of a person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (2) Anyone who is arrested shall be informed, at thetimeof arrest, of the reasons for his arrest and shall be prompdy informed of any charges against him. (3) Anyone arrested or detained on a criminal charge shall be brought prompdy before a judge or other officer authorised by law to exercise judicial power and shall be entided to trial within a reasonable time or to release (4) Anyone who is deprived of his liberty or arrest or detention shall be entided to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 2 7 3  2 7 4 2 7 5  Article 14(1) states: "everyone shall be entided to afair. ..hearing by a competent, independent and impartial tribuna  General Comment No.29, PP11, 15-16. Article 4(1)(2), ICCPR.  79  the fact that a State must merely demonstrate that detention is reasonably needed under the circumstances, the State should have to make his showing to a court. Many authoritative international bodies have expressed this view, for example the European Court o f H u m a n Rights. There, it has been recognised that detention by the Executive without judicial review o f the proprietary o f detention, is violative o f fundamental human rights law.  276  Such widespread recognition o f the right to freedom from arbitrary detention  affirm the non-derogability o f judicial review and therefore require that the Executive branch may not exercise its discretion to detain without independent, fair and effective judicial review. Similarly, the Inter-American Court o f H u m a n Rights has recognised that judicial guarantees essential for the protection o f non-derogable or authoritative human rights are also non-derogable i n times o f emergency.  277  5.3 U N D E R W H I C H J U R I S D I C T I O N D O T H E G U A N T A N A M O D F T A T N F F S FAT.T?  Whilst the detainees' rights i n Guantanamo may be restricted, they are not entirely absent due to the their right to due process under the United States Constitution and the writ o f habeas corpus, both serving as a key tool to challenge unlawful incarcerations and to enforce prisoners rights.  278  Unfortunately for the detainees however, U S courts have  appeared reluctant to implement the writ o f habeas corpus i n proceedings involving alien enemies. narrow.  279  280  A reason for this is that the scope o f review i n military cases is predominandy I n considering a petition for writ o f habeas corpus arising i n a military case, the  reviewing court considers only whether the military court has jurisdiction over the individual and whether it has authority to try the offence charged.  281  Nevertheless, even  with the precedent existing o f extinguishing habeas review, opportunities exist for the Federal Courts o f the United States to ensure that justice is administered correcdy to all individuals, even alien enemies.  276  282  The Court stated in Al-Nashif v Bulgaria, App. No. 50963/94, E.CtH.R. June, 2002): "everyone who is  deprived of his liberty is entitled to a review of the lawfulness of the detention by a court. ..The requirement is offu importance to provide safeguards against arbitrariness.. .National authorities cannot do away with effective control o of decision by the domestic courts whenever they choose to assert that national security and terrorism are involved...  See Advisory Opinion No. OC-9/87, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention on human Rights, Inter-Am. C.H.R. (Ser. A) No.9 (Oct.6,1987). Writ of Habeas Corpus, 28 U.S.C. 2241 (1994). Examples include: Johnson v Eisentrager, 339 U.S. 763, 780 (1950); Hirota v MacArthur, 338 U.S. 197, 198 (1948); Application of Yamashita, 327 U.S. 1, 26 (1946); Ex parte Quirin, 317 U.S. 1, 48 (1942). See Burns v Wilson, 346 U.S. 137,139 (1953). See Eisentrager; ex parte Quirin and United States v Grimley, 137 U.S. 147,150 (1890). From a differing perspective we may look at Yamashita, where the court observed, "the trial and punishment  277  2 7 8 275  280  281  2 8 2  of enemy combatants who have committed violations of the law of war is...a part of the conduct of war." Sinc  Constitution declares the President as Commander-in-Chief of the armed forces, waging war is almost 80  Guantanamo Bay, o n lease to the United States by the Cuban Government, is the oldest overseas military base and the only one located within a Communist regime. Negotiated i n 1903, long before C o l d War tension arose between the U S and Cuba, the lease costs the U S only $4,085 per annum and can be terminated only by mutual agreement between the two States.  283  It can be argued that due to the strategically advantageous  location o f the base, this is the main reason as to why the U S has never expressed any interest i n abandoning it. It must also be noted that the current situation involving the detainees within Guantanamo is not the first instance i n which the U S has used the Base as a holding tank. In 1994 tens o f thousands o f Haitian and Cuban refugees were interdicted in the waters off the Florida coast, and subsequendy taken to Guantanamo. In that instance, when Cuban American Bar Association v Christopher (1995^ was challenged i n Federal Court, lawyers for the refugees argued that although the base was technically o n Cuban territory, it was effectively under U S control.  The issue therefore o f Guantanamo Bay residing under U S control raises a further question as to whether U S Constitutional protections extend to the detainees being held there. This issue may only be resolved when it is established whether Guantanamo is deemed to be within the U S ' sovereign territory.  285  The general rule for determining  jurisdiction i n habeas corpus cases is that jurisdiction lies i n the district where the prisoner is in custody.  286  This ruling creates confusion, when the prisoner is not held within any  district. Under such circumstances, certain courts have held that when a prisoner is incarcerated outside U S territory, jurisdiction for habeas corpus lies i n the district where a respondent may be found who can compel the prisoner's release.  287  In cases o f extra-  territorial imprisonment by the U S military, some courts have found that jurisdiction lies i n exclusively an executive function. Also Eisentrager, "certainly it is not the function of the judiciary to entertain private  litigation.. .which challenges the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our ar  abroad." Combining the constitutional provision with the Yamashita quote, it can be argued the President holds plenary authority to try enemy aliens accused of war crimes. Therefore, the Federal Courts have no authority to review the actions of military tribunals, not even on petition for writ of habeas corpus. However, even Eisentrager and Yamashita reject that notion, where the court considered whether any basis existed for the writ. Accordingly, the fact that the court even went through the exercise of considering the writ of habeas corpus demonstrates that habeas requests should not be rejected simply on the mistaken notion that the military holds absolute authority to try accused war criminals. Lease to the United States by the Government of Cuba of Certain Areas of Land and Water for Naval or Coaling Stations in Guantanamo and Bahia Honda (fury 2, 1903), available at http:/www.yale.edu/lawweb/Avalon/diplomacy/cuba/cuba003.htm. Cuban American Bar Association v Christopher, 43 F.3d. 1412,1424-1425 (11* Cir. 1995). To determine this we may look at cases such as United States v Verdugo-Urquide^ 494 U.S. 259, 260 (1990) which held that those cases in which aliens have been determined to enjoy certain constitutional rights establish only that aliens receive such protections when they have come within the territory of, and have developed substantial connections with the US. Ahrens v Clark, 335 U.S. 188,192 (1948). eg. Braden v 30 Judicial Circuit Court of Ky., 410 U.S. 484, 500 (1973). 283  284 285  286 287  th  81  the District o f Columbia, as both the military and civilian heads o f the various services are located there. T h e same can be said for the Guantanamo detainees' petitions for writ o f habeas corpus. Since they are being held at a U S naval base i n Cuba, it would seem that proper respondents to be named i n the petition would include the Chief o f Naval Operations a n d / o r the Secretary o f Defence.  A n y analysis o f this issue involves an examination o f the case o f Johnson v Eisentrager.^ Here, a group o f German soldiers convicted o f war crimes by a military tribunal sought habeas corpus review i n the District o f Columbia. T h e prisoners were incarcerated i n Germany, and neither the offences nor the military proceedings occurred within U S territory. I n its disdainful rejection o f their petition, the United States Supreme Court discounted the position o f enemy aliens held outside U S military sovereignty.  289  With  reference to the Guantanamo detainees, initially the circumstances sound remarkably similar. However, o n further analysis we notice that the location was the secondary issue. In fact, the primary issue was that the petitioners failed to state a genuine reason as to why their imprisonment was unlawful. Therefore, although the Eisentrager judgement seemed to make much o f the fact the prisoners were held outside the U S , the location proved largely irrelevant as their petition failed to allege any facts that i f true, could have affected their release. Subsequendy, the Court intimated that, had the prisoners made some supportable claim about  the unlawfulness  consideration.  290  o f their detention, it would  have been  taken  into  I n spite o f this dictum o n extraterritoriality, we can also note Justice  Douglas' dissenting judgement i n the case o f Hirota v MacArthur ^, describing the correct 2  rule i n handling habeas corpus proceedings involving extraterritorial detention. I n rejecting the argument that incarceration abroad was a basis for withholding habeas jurisdiction from Federal courts, Justice Douglas warned that such a ruling would create an incentive for extraterritorial incarceration where the Executive Branch may circumvent judicial  2 8 8  Johnson v Eisentrager, 339 U.S. 763, 780 (1950).  The court held: "...a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) enemy alien; (b) has never been or resided in the United States; (c) was captured outside ofour territory and there h custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United Stat offences against the laws of war committed outside the United States; (f) and is at all times imprisoned outside States." The Court stated: "...despite this, the doors of our courts have not been summarily closed upon these prisoners. courts have considered their application and have provided their counsel opportunity to show some reason.. .why th be subject to the usual disabilities of non-resident enemy aliens.... After hearing all contentions they have seenfitto considering every contention we can base on their application and the holdings below, we arrive at (the conclusion) to writ of habeas corpus appears." 2 8 9  2 9 0  Also accord Quirin, 317 U.S. at 25 where the Court stated: "the fact that the petitioners are enemy aliens does not  foreclose consideration by the Courts of petitioners' contentions that the Constitution and the laws of the Unit constitutionally enactedforbid their trial by military commission." 291  Hirota v MacArthur, 338 U.S. 197 (1949). 82  review o f its actions. Furthermore, it is also evident that Justice Douglas identified the distinctions that lie between judicial review o f Executive actions and judicial review o f presidential authority. H e noted that i f the military treats the detainees i n accordance with the relevant Geneva Conventions, the courts can order no more. Similarly, i f a military court acts within its jurisdiction, no civilian court can overturn the decision. Therefore, i n summary, under the Douglas argument, the writ o f habeas corpus will not free alien terrorists charged with war crimes.  W e must also take note o f the U S Government's stance that no Federal court has authority over the al-Qaeda militants held at Guantanamo.  292  This is because under a recent  brief filed i n the District Court o f California, Government lawyers argued that Camp X Ray is not a sovereign territory due to the fact that Cuba retained sovereignty when it leased the base to the U S i n 1903. This view is confirmed by the Cuban Government, who stated that "the American Naval Base at Guantanamo is a facility located within an area of 117.6 square kilometres of the national territory of Cuba....  ,£93  Furthermore i n the case Coalition of Clergy  v George Walker Bush, * the U S District Court for the Central District o f California agrees 29  with both Cuba's and the U S Government's assertion o f Camp X - R a y not being within U S sovereign territory. It is evident that the decision i n the Coalition of Clergy case was based o n the language o f the lease agreement itself, stating;  "While on the one hand the United States recognises the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of  Cuba consents that during the period of occupation by the United States of said areas under the terms of the agreement the United States shall exercise completejurisdiction and control over and within said areas. '  In sum, even though the U S retains jurisdiction and control over the area at Camp X-Ray, Cuba retains sovereignty, as established by international treaty, and judicially recognised by U S courts. A s the detainees are not held on U S sovereign territory, they do not subsequendy have constitutional protections.  2 9 2  David Rozenberg; "Response to Terror: US Asks Judge to Reject Claim Over Detainee Prisoners." Los Angeles  Times (February 1, 2002). See Decleration del Gobierno de la Republica de Cuba a la Opinion Publica National e International, 11 de enero del 2002 [Statement by the Government of Cuba to the National and International Public Opinion January 11, 2002], available at http:/www.cuba.cu/gobierno/documentos/2002/ing/dl 10102i.html. Coalition of Clergy v George Walker Bush, 2002 U.S. Dist. LEXIS 2748 at 41. Lease to the United States of Lands in Cuba for Coaling and Naval Stations, February 23,1903, US-Cuba, T.S. No. 418, as modified by Treaty Between the United States of America and Cuba Defining Their Relations, May 29,1934 art. Ill, 48 Stat. 1682,1683. 2 9 3  2 9 4 2 9 5  83  £  5.4 C U R R E N T L E G A L C H A L L E N G E S T O D E T E N T I O N A T G U A N T A N A M O B A Y  We have seen that the United States judiciary has expressed little willingness to intervene i n cases involving the Guantanamo  detainees and other cases involving  assertions by the Government o f unlawful combatant status o f detainees or accused individuals. The issue becomes  complicated, not only due to disputes relating to  sovereignty, as discussed earlier, but also because o f the general unwillingness o f the judicial branch to intervene i n what it perceives to be foreign policy issues within the exclusive prerogative o f the executive branch. Furthermore, as the Administration has cast all o f the cases deriving from Guantanamo as matters arising from combat and war, rather than as violations o f criminal law, the courts have adopted a similar stance showing their reluctance to intervene i n terms o f executive discretion i n the exercise o f powers and the military.  In addition, it has also become evident that the U S Government has taken extensive measures to hide the identities o f alien detainees, both i n Guantanamo and within the U S , and to subsequendy obstruct legal access to courts or counsel for all detainees. O w i n g to the difficulties experienced by such alleged terrorists as Yaser Hamdi, Jose Padilla and Zacarias Moussaoui, to achieve favourable treatment from the courts, the Inter-American Commission appears to be one o f the few deliberative bodies willing to expose the weaknesses within the Bush Administration's legal arguments.  The cases involving Hamdi, Padilla and Moussaoui raise complex issues o f international law regarding prisoner o f war and combatant status together with access to the courts. In the case o f Jose Padilla, we can see evidence o f a U S citizen arrested i n Chicago on a material witness warrant. H e is now designated as an "enemy combatant" by the President, and is being held at a naval detention centre i n South Carolina without formal charges. In December 2002, a Federal District Court judge i n N e w Y o r k affirmed the President's authority to designate Padilla as an "enemy combatant". However, it was concluded that he was entided to a defence counsel i n the exercise o f the court's discretion over habeas corpus petitions, rejecting various Government criticisms that intervention by a lawyer o n Padilla's behalf was "inconsistent with legitimate goals of intelligence gathering and prevention offurther attacks". It is evident that the judge reaffirmed this ruling while expressing his concern with the Government's legal position. H e subsequendy categorised the arguments o f the Department o f Justice and Solicitor General as 'permeated with the pinched legalism one usually encountersfrom non-lawyers". 84  5.4.1  HAMDI V RUMSFELD  Yaser E s a m H a m d i , known as the "Cajun Taliban"'is a United States citizen who was captured by American and Allied Forces i n Afghanistan. Initially the U S Government detained h i m at Camp Delta, however once it was discovered that he was an American citizen, the Government transferred h i m to the Naval Brig at Norfolk, Virginia, where it has labelled h i m as an "enemy combatant", detained h i m indefinitely, failed to bring charges against him, and denied h i m access to counsel and due process.  Subsequendy, Hamdi's father filed a petition for writ o f habeas corpus under the legal relationship o f "next offriend"? ' The district court held that Hamdi's father sufficiendy 1 1  fulfilled the next o f friend criteria. In addition, the district court appointed H a m d i counsel and ruled that the Government must allow* H a m d i unmonitored  meetings with his  appointed counsel.  In Hamdi v Rumsfeld the Court o f Appeals reversed the district court's decision and held that proper weight was not given to national security concerns when the court granted H a m d i access to counsel. Furthermore, the court stated, "the President's wartime detention decisions are to be accorded great deference from the courts. '  £ 9 8  The Government took an  even more radical position by requesting that the court o f appeals dismiss the petition for a writ o f habeas corpus without leave to amend because the government's judgement as to w h o m is an enemy combatant is not subject to judicial review, since this would result i n an invalidation o f executive policy. The court, however, refused to summarily dismiss the petition for writ o f habeas corpus, because it did not want to endorse the proposition that a citizen, alleged to be an enemy combatant, is not entided to "meaningfuljudicial review...on the Government's say-so." The Court, however, held that "...if Hamdi is indeed an enemy combatant who was captured during hostilities in Afghanistan, the Government's present detention of him is an lawful one.  U p o n remand, the district court directed the government to answer Hamdi's petition for writ o f habeas corpus. A l o n g with its responses, the government submitted an Hamdi v Rumsfeld, 296 F.3d 278, 280 (4 Cir. 2002). Next of friend status can be granted to an individual who is (1) acting on behalf of a defendant who is unable to appear on his own behalf and (2) has a significant relationship with the defendant and will ensure that the defendant's best interests are upheld. Citing ex parte Quirin. Supra note 189, para. 64. 2 9 6  th  297  2 9 8 299  85  affidavit from Michael M o b b s (Mobbs Declaration), a special advisor to the Under Secretary o f Defence for Policy. This declaration contained information regarding Hamdi's capture that allegedly confirmed and validated his detention as an enemy combatant. In response, the district court held that the Mobbs Declaration was insufficient p r o o f and ordered the Government to produce more evidence.  Subsequendy, the Government appealed this decision. O n January 8, 2003, the Court o f Appeal held that the Mobbs Declaration was sufficient to justify Hamdi's detention. The court reasoned that to hold otherwise risked creating "judicialinvolvement...into an area where the political branches have been assigned by law a pre-eminent role." Specifically, the Court held that the Government's right to detain H a m d i as an enemy combatant emanates from its war making powers o f Article I and II o f the U S Constitution. A s a result, the court dismissed Hamdi's petition for writ o f habeas corpus because "it [was] undisputed that he was captured in an [sic] %one of active combat operations abroad" and the Mobbs Declaration was sufficient to "establish a legally valid basis" for his detention.  W e must also point out, however, that the district court did go o n to state that under "a government of checks and balances", a court cannot allow detention with "few or no standards" or on the "sparse facts" presented to support an executive decision to detain. Therefore, allowing the Executive to make a final determination with respect to the content and application o f international law governing the status o f persons, individual rights, and the permissibility o f detention would necessarily involve a violation o f separation o f powers, and would not be excusable under international law.  300  However, in  contrast to this philosophy, it is important to acknowledge Justice Diana Gribbon Mote's dissenting judgement. Here she asserts:  'For more than ayear, a US citizen, Hamdi, has been labelled an enemy combatant and held  in solitary confinement in a Norfolk, Virginia Naval brig. He has not been charged with a crime, let alon convicted of one."  "To justify forfeiture of a citizen's Constitutional rights, the Executive must establish enemy  combatant status, with more than hearsay. In holding to the contrary, he panel allows appropriate def  300 j l _on to this we can also refer to, United States v Altstoetter (The Justice Case), 3 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No.10, at 983-984 (1951). n  re  a  86  to the Executive's authority in matters of mar to eradicate the Judiciary's omn Constitutional role: protection of the individualfreedoms guaranteed to all citizens."  "With respect, I believe the panel has seriously erred, and I dissent from the court's refusal to rehear this case en banc."  'The panels' decision marks thefirsttimein our history that a Federal Court has approved the elimination of protections afforded a citizen by the Constitution solely on the basis of the Executive's  designation of that citizen as an enemy combatant, mithout testing the accuracy of the designation. Neith the Constitution nor controllingprecedent sanctions this holding."  5.4.2 P A P I L L A E X R E L . N E W M A N V B U S H  3 0 1  Like Yaser E s a m H a m d i , Jose Padilla, known as Abdulalah al-Muhajir, is a United States citizen. O n May 8, 2002, believing him to be a member o f al-Qaeda, the U S Government arrested Padilla as he arrived in Chicago on an international flight from Pakistan. The F B I became interested in Padilla after interrogating a senior al-Qaeda leader who revealed that Padilla planned to return to the United States and detonate a dirty bomb.  302  Originally the government arrested Padilla on a material witness warrant and detained him at the Metropolitan Correctional Centre in N e w Y o r k City. After determining Padilla to be an unlawful enemy combatant, the President transferred him to a high security N a v y prison in Charleston, South Carolina. O n December 4 , 2002, the district court announced its decision that the government has the authority to detain enemy combatants who are United States citizens for an indefinite period o f time. The court held:  "...although unlawful combatants, unlike prisoners of mar, may be tried and punished by  military tribunals, there is no basis to impose a requirement that they be punished. Rather, their detentio for the duration of hostilities is supportable — again, logically and legally — on the same ground that the detention ofprisoners of mar is supportable: to prevent themfrom rejoining the enemy."  Padilla ex rel. Newman v Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002). A dirty bomb is a "conventional explosive combined with radioactive material." Associated Press, 0une 16, 2002), available at http://www.cbsnews.com/stories/2002/06/10/attack/main511671.shtml.  301  302  87  The court held, however, that Padilla was entided to meet with counsel regarding his petition for writ o f habeas corpus. The court also announced that:  "...upon further submission from Padilla, should he choose to make one... the court will  examine only whether there was some evidence to support the President'sfinding, and whether that evide has been mooted by events subsequent to Padilla's detention."  The Padilla court has  since lowered its differential standard for evaluating  executive determinations. O n reconsidering, the Court clarified its "some evidence" standard to provide for greater review o f executive determinations than what the Fourth Circuit Panel in Hamdi required.  5.4.3 US  OVERVIEW O F HAMDI AND PAPILLA JUDGEMENTS IN T H E C O N T E X T OF T H E CONSTITUTION A N D INTERNATIONAL L A W IDENTIFIED W I T H I N THIS C H A P T E R  A s established in H a m d i , Padilla assumed that "if the petitioner does not dispute that he  was captured in a vgne of active combat operations abroad and the government adequately alleges that h was an unlawful combatant, the petitioner has no right to present facts" to dispute the government Additionally, Padilla assumed that the "undisputed detention of a citizen during a combat operation  undertaken in a foreign country and a determination by the executive that the citizen was allied with enemy forces" should be determinative. Padilla, unlike H a m d i , "was detained in this country...by law enforcement officers pursuant to a material witness warrant." Therefore we can argue that the judicial review, originally identified within H a m d i , and  the  assumptions o f Padilla  concerning the place o f capture, are inconsistent with international law norms and trends in judicial review policies identified earlier within this chapter. While Hamdi's habeas corpus petition moved forward o n the legal challenges to his detention, unlike Padilla, H a m d i will not be able to contest the factual allegation on which the Executive based its decision to label h i m an enemy combatant. This has consequendy denied H a m d i access to  any  meaningful judicial review o f his detention. A s such, these cases have raised important Constitutional issues o f separation o f powers as between the Executive and Congress, not previously addressed by the Courts. Specifically, these cases pose the question o f whether the Executive's unilateral curtailment o f habeas corpus review for Guantanamo detainees and obstruction o f any factual review in Hamdi's detention amounts to an unconstitutional  88  suspension o f the writ o f habeas corpus under Article I, Section 9 Clause 2 o f the Constitution.  In  303  addition, we  can  also  argue that the  U S Governments'  policy  for  incommunicado detention, identified i n Padilla and H a m d i , raises other inconsistencies with international law norms. Customary and treaty-based human rights law requires that no persons shall be subjected to torture, or to cruel, inhumane, or degrading treatment.  304  The same prohibition exists i n custom and treaty-based laws o f war. F o r example Article 3 o f the Geneva Conventions requires that all persons detained "shall in all circumstances be treated humanely," and that "to this end...at any time and in any place... cruel treatment and torture" are proscribed i n addition to "outrages upon personal dignity, in particular, humiliating and degrading treatment." Article 5 o f the Geneva Civilian Convention also reiterates that "in each case" persons detained as security threats shall be "treated with humanity." Additionally, Article 31 requires that "no physical or moral coercion shall be exercised against protected persons, in particular to obtain informationfromthem," whilst Article 33 prohibits "all measures of intimidation." I n respect o f these proscriptions, we can argue that the physical interrogation techniques used for months by the U S i n such cases as H a m d i and Padilla, contravene such international law norms and therefore qualify as explicit breaches o f international human rights standards.  Furthermore, as it stands now, the Padilla court has defined an enemy combatant  as an "unlawful combatant, acting as an associate of a terrorist organisation whose operations do not me the four criteria necessary to confer lawful combatant status on its members and adherents.'  005  I n other  words, the Padilla court has reduced the term enemy combatant to simply encompass someone who does not qualify as a prisoner o f war. This broad characterisation, however, does not explain the discrepant treatment among those individuals who do not qualify as prisoners o f war. Therefore we can argue the Government's failure to rationalise these discrepancies is i n violation o f the I C C P R ' s requirement that "preventative detentions must be based on grounds and procedures established by law.  m6  Furthermore, it can be established that the  I C C P R may be important i n interpreting U S domestic law. I n deciding whether to grant the writ o f habeas corpus, the court should approach the issue i n such a manner as to preserve compliance with international law, notably Article 9(4) ICCPR, which states that  Which reads: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebell invasion the public safety may require it." 3 0 3  See ICCPR, art. 7; and Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, December 10,1984,1465 U.N.T.S. 85. 3 0 4  305  306  Ibid at 593.  Article 9, General Comment to ICCPR. 89  anyone who is detained "shall be entitled to take proceedings before a court, in order that the court may  decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." Therefore, i f the United States required judicial review o f those detentions, it would ensure compliance with the aforementioned Article 9 ICCPR,  Finally, i n light o f the arguments aforementioned, we can conclude that the cases involving Padilla and H a m d i demonstrate the stark contrast that exists between the strong presidential prerogative to assert classifications based o n evidence and location, together with the Federal judicial requirement to test evidence through the habeas corpus petition. W e can identify three distinct scenarios that have evolved as a consequence the H a m d i and Padilla cases. Firsdy, the situation regarding U S citizens who have been apprehended on both  foreign and domestic battlefields, and who have been classified  as "enemy  combatants" and denied criminal protections by the Government. Secondly, non-citizens arrested i n the United States, accused o f being affiliated with Al-Qaeda, and tried i n Federal courts and afforded criminal protections contested by the Government. Finally, non-citizens apprehended outside the United States, both on and o f f the batdefield, who have been brought to U S military bases only to be denied any right o f habeas corpus based on the lack o f U S sovereignty.  5.5 T H E U K ' s P O S I T I O N O N G U A N T A N A M O B A Y W I T H R E S P E C T T O D E T A I N E E . F E R O Z ABBASI  3 0 7  The United Kingdom's position o n the detainees held i n Guantanamo Bay is reflected i n the statement o f the United Kingdom's Foreign Secretary, Jack Straw, who stated that, irrespective o f whether the prisoners fall under the protections o f the Geneva Conventions or not, they certainly have rights under customary international law, and it is subsequendy the responsibility o f the respective Government to safeguard these  rights.  308  We can also acknowledge M r . Straw's statement to the U K H u m a n Rights Annual Report o f 2002, where he identified:  Abbasi (R on application of) v Secretary of State for Foreign & Commonwealth Office [2002] EWCA Civ. 1316; Her Majesty The Queen on the application of Abbasi and another v Secretary of State for Foreign & Commonwealth Affairs and Secretary of State for the Home Department [2002] EWCA Civ. 1598 (6 November 2002). Edited transcript of an interview given by the Foreign Secretary, Jack Straw, on the treatment of prisoners held in Guantanamo to BBC Radio 4 (UK) (15 January, 2002) at http://www.number10.gov.uk/output/page4235.asp. 307  3 0 8  90  "The strugglefor humanrightshas to he a majorpart of thefightagainst terrorism. Combating  terrorism, however, must not become a pretext for setting aside the humanrightsnorms so painstakingly established over the last 50years. '  m  W i t h regard to this view, it was noted that the U K had received assurances from the U S that the detainees i n Guantanamo were being treated humanly and consistent with international law norms, identified earlier i n the chapter, most notably within the Geneva Conventions. A s for their status, whilst the U K indicated that it was a complex issue, which it would continue to discuss with the U S authorities, it has acknowledged the right o f the U S , as the detaining power, to decide whether they are going to prosecute the detainees.  It must also be noted that the United Kingdom's H i g h Commissioner for H u m a n Rights emphasised that all the detainees were entided to the protection o f international human rights norms, predominandy within the relevant provisions o f the ICCPR,  and the  Geneva Conventions. Furthermore, the  H i g h Commissioner also  identified that any dispute concerning their status should be brought before a competent tribunal, whilst any trial o f these individuals should meet the international standards o f the relevant  components  of  the  ICCPR  and  Third  Geneva  Convention.  These  recommendations therefore, can be argued are consistent with the ideologies o f the United States, o n the detainees legal position.  W e can further elaborate on the consistency between the U K and U S ' policies concerning the Guantanamo detainees, by studying the leading case involving a U K national, Ferroz Abbasi, at Camp Delta, who is detained under the United States Presidential Order o f 13 November 2001. In an opinion provided by three leading U K legal experts, it was argued that the British Governement could claim his status as a prisoner o f war on his behalf. According to this opinion, the U S was obliged to allow Abbasi to bring the question o f his status before a competent tribunal. Until such a determination, by a competent tribunal on the basis o f Article 5 o f Geneva Convention III, Abbasi should be presumed to be, and treated as a prisoner o f war. A s such, Abbasi would benefit from the protections granted under the Convention according to which he could only be prosecuted for war crimes and crimes against humanity. If, o n the other hand, he  UK Human Rights Annual Report 2002 issued by the United Kingdom Foreign and Commonwealth Office, 12-13, at http://www.fco.gov.uk/Files/kfile/fullreport,3.pdf.  3 0 9  91  were a civilian detainee, then he would be entided to the protections o f Geneva Convention I V , and to immediate release as soon as the reasons o f his detention ceased to exist.  Finally, it must noted that i f Abbasi was an unlawful combatant, subject to the criteria identified earlier i n the chapter, then he would be entided to the minimum standard o f treatment provided by Article 75 o f Additional Protocol I, i f it were accepted as customary international law. Furthermore, it can be argued that by excluding non-nationals o f the right to have access to counsel, and o f the right to petition courts i n the U S or other countries and international tribunals under the Presidential Order, the U S would be violating its international legal duties to maintain the equality o f all individuals before the law, without discrimination.  310  In light o f these views, proceedings were introduced before British Courts with the object o f compelling the British Government to take action i n support o f Abassi. Here it was argued that the British Government failed to make adequate representations concerning Abbasi's status to the U S authorities. Effectively, the applicant was seeking an order to force the Government to exercise its rights with respect to the U S to secure his protection. O n the other hand, it was submitted by the Government that the matter fell within the foreign affairs prerogative, and that subsequendy no court had jurisdiction to adjudicate o n the case. Rather surprisingly, the Court o f Appeal gave leave to appeal and decided to hear the application o n its merits. It subsequendy rejected the Government's claim that matters o f diplomatic protection were inevitably non-justiciable, although it conceded that they would be subject to judicial scrutiny only i n exceptional circumstances. O n the facts o f the case, although the Court expressed its concern about the way British nationals were being treated i n Camp Delta, it did not find the applicant's circumstances brought h i m within the "exceptional circumstances", provided to U S authorities by the British Government.  O n a final note, i n relation to the United Kingdom's position o n Guantanamo Bay, it is important to acknowledge L o r d Steyn's remarks o n the current deplorable situation there. I n a speech i n L o n d o n o n 25 November 2003 , H i s Lordship, the third 311  most senior judge i n Britain, expressed his concerns at the way detainees were being This view is supported by the opinion of Professor Vaughan Lowe, within the press release from the Bar Human Rights Committee found at: http://www.barhumanrights.org.uk/pdfs/25_02_02CubaOpionion.pdf. Full text of speech available at: http://www.channel4.co.uk/news/2003/ll/week_4/25_rights.html. 3 1 0  311  92  treated and held within the Camp. A s identified earlier within the chapter, L o r d Steyn confirms that there is evidence o f "sleep deprivation, forcing prisoners to standfor hours on end - not quite torture, but as close as you can get." H e goes o n to identify that "the purpose of holding the prisoners at Guantanamo was and is to put them beyond the rule of law, beyond the protection of any courts, and at the mercy of victors.... The procedural rules do notprohibit the use offorce to coerce prisoners to confess." Furthermore, he confirms what has been identified throughout this chapter, that that no justice exists within Camp Delta, concluding that the U S Presidential Order, "deprives all inmates of anyrightswhatsoever, and as a lawyer brought up to admire the ideals of American democracy andjustice, I would have to say that I regard this as a monstrous failure ofjustice." Therefore, the principal arguments that can be derived from L o r d Steyn's views, raise the question: does the quality o f justice granted to the prisoners at Guantanamo comply with the m i n i m u m international standards for the conduct o f fair trials and the treatment o f detainees? L o r d Steyn's answer would be a resounding "No"! Concluding, we can argue L o r d Steyn's views epitomise the general concerns on how deplorable the conditions at Guantanamo are, and the lack o f fundamental human rights that exist there. The judge confirms that both the United States' and British Governments' stance o f continually indicating that they are working hard behind the scenes "just won't wash anymore", and that "it may be appropriate to pose a question: Ought our Governments make plain publicly and unambiguously our condemnation of the utter lawlessness of Guantanamo Bay?"  5.6 O V E R V I E W O F G U A N T A N A M O B A Y W I T H I N T H E C O N T E X T O F T H I S T H E S I S  The Guantanamo detainees hold few, i f any, rights under the U S Constitution. A t most, they enjoy the Fifth Amendment's promise o f due process. However, that right simply entails the process due to an alien enemy charged with war crimes i n a military trial. Furthermore,  most non-Afghan al-Qaeda members hold  nothing more than  basic  humanitarian rights under the Geneva Conventions, discussed throughout this chapter. O n the other hand, Taliban militia members may qualify for substantial procedural rights under the T h i r d Geneva Convention. Similarly, both Taliban and al-Qaeda members may obtain procedural rights under Geneva Convention I V . Furthermore, i n order to effectively enforce those rights, the detainees must be entided to seek writs o f habeas corpus i n the U S Federal Courts. While the executive branch may hold near plenary power to wage war on foreign soil, the judiciary must retain oversight o f post-war criminal proceedings. It must also be made clear that Cuba remains the dejure sovereign o f Guantanamo Bay, whilst the United States retains defacto and dejure occupancy. 93  It can also be argued that the worldwide condemnation o f the American Sonderwag in Guantanamo should make certain politicians i n Washington, together with the Bush Administration, reflect about the long-term consequences to the American foreign policy. A s stated in a Richard Goldstone B B C interview on 5 October 2003, "A future American President will have to apologisefor Guantanamo. '  & n  Finally, we can end this chapter by acknowledging a quote from former U S President Jimmy Carter, condemning the deplorable situation at Camp Delta, stating:  "[The Guantanamo detainees] have been held in prison without access to their families, or  lawyer, or without knowing the charges against them. We've got hundreds ofpeople, some of them asy  as twelve, captured in Afghanistan, brought to Guantanamo Bay and kept in cages for what is going o  two years. It's difficult for international aid workers to spread the message of humanrightsto places li Cuba, Africa and the Middle East when the US Government doesn't practice fairness and equality.... I have never been as concernedfor our nation as I am now about the threat to our civil liberties. '  312 313  "Inside Guantanamo", BBC One (UK) (5 October, 2003). Full text of President Carter's Speech available at: htm://www.meaus.com/jimmy-carter-article.htrn. 94  R n  CHAPTER V I 6.1 T H E S I S C O N C L U S I O N  In 1759, one o f America's founding fathers, Benjamin Franklin, advised: "they can give up essential liberty to obtain a little temporary safety neither deserve liberty nor safety. '  & u  Toda  ironically, the United K i n g d o m and the United States are o n the verge o f eliminating fundamental human rights without even being able to obtain security for their respective nations. N o part o f this thesis has argued that governments should be denied powers they genuinely require to defend the democratic way o f life against the continuing threat o f global terrorism. However, as has been discussed throughout this paper, these powers need to strike a correct and consistent balance between the vital needs o f the state and the liberty o f its citizens, between national security necessities, and international human rights obligations.  In democratic nations, the law is the paramount tool i n combating global terrorism. These laws restrain the state from overreaching, while at the same time allow a strong response that protect and reaffirm the normative values o f liberal democracy. The rule o f law demands vigilance against, as well as a decisive balance between, state oppression and state weakness. O n e o f terrorism's dangers lies i n provoking these extremes, which pose existential threats to constitutional order. Fortunately, terrorism's  ultimate goal o f  subversion is one that is within control. The possible solutions to terrorism naturally pose difficult and challenging questions about the complex interconnection between rights and security concerns. However, reasonable and effective anti-terrorism measures i n the law are not only achievable, but are also necessary to abolish terrorism and maintain democratic values.  The United States and the United K i n g d o m have a long history o f balancing the importance o f protecting national security against maintaining the freedoms enjoyed by its citizens. Sometimes certain human rights and civil liberties must be temporarily sacrificed in order to protect the nation from a threat o f terrorist activity. However when those rights are permanendy sacrificed, it is only then that the United States and the United K i n g d o m cease to be countries o f freedom and protected civil liberties.  314  Benjamin Franklin, "Historical Review of Pennsylvania" (1759), quoted in Emily Morison Beck, "Bartlett's  Familiar Quotations: A Collection of Passages, Phrases and Proverbs Traced to their Sources in Ancient and Mod Literature"(1980).  95  In enacting new anti-terrorism legislation i n the form o f the Patriot Act and the ATCS the respected Governments overreached their powers and provided the necessary tools to take away important human rights. However, there are fundamental differences that must be acknowledged between the framework and structure o f the European human rights  system and to that o f its American counterpart. The American human  rights  framework is more widely open for interpretation than that o f the European system. A striking difference between the ECHR and the ICCPR is that the European Court o f H u m a n Rights performs binding adjudication o f the rights o f the individuals and States under the European Convention. In contrast the ICCPR Committee can only request information and make non-binding comments. A party's attempt to limit its consent through a reservation is quite significant to that State's national sovereignty i f there is a binding adjudication system i n place. I n distinction, to the non-binding reporting system established by the ICCPR within the U S , there are no concrete repercussions for State parties who violate treaty provisions. I n this respect, the attack into a State's ability to define the scope o f its obligations represented by a severance o f a State's reservation under the European Convention is a far more significant invasion o f national sovereignty than that under the ICCPR. Consequendy this provides evidence for arguing that the European human rights system is a more effective system to that within the United States and therefore able to deal with non-compliance o f human rights with greater success.  In summarising the ATCS  , it can be said that this was the U K Government's  response to what it perceived will be the nature o f terrorist threats i n the world after September  1 1 . Counter-terrorism legislation is required to strike a balance  protecting human rights and ensuring that the State has effective  between  counter-terrorism  measures. The ATCS frequendy fails to strike any sort o f balance between these competing needs and it repeatedly sacrifices a respect for human rights, due to the examples and reasoning discussed within this study. O n the whole, despite some important safeguards, the ATCS  seems to prioritise short-term counter terrorism tactical gains. This therefore  allows the scales to fall significandy against the protection o f human rights, which frequendy produces a legacy o f counter-terrorism ineffectiveness as hostility, violence and terrorism grow within the world.  It can also be submitted that a consistent definition o f terrorism together with an International Bill o f Rights is essential i n providing a universal dimension to the value o f human dignity i n domestic law and domestic adjudication. Unlike other branches o f  96  International Law, International H u m a n Rights L a w is not concerned with State interests, but is concerned with the basic rights o f individuals. Individual rights must often be vindicated against the State o f which the individual is a national or on whose territory a particular breach o f human rights has occurred. Domestic courts therefore, have special responsibilities and opportunities to engage actively i n the discovery and enforcement o f international norms that can compete, clarify and reinforce the protection o f rights i n the forum. E v e n countries with long and effective traditions o f human rights may benefit from the incorporation into their legal system o f ideas and principles that reflect the universal concern o f the international community with the protection o f basic rights. E v e n with the absence o f the incorporation o f international human  rights norms  into  domestic  legislation, domestic courts remain bound to cooperate with the international community in order to ensure movement toward the goal o f ensuring the respect for human rights. Courts must help to ensure movement towards this goal through their wide margin o f appreciation o f domestic law i n conjunction with international law. It must be said however, that an international B i l l o f Rights, no matter how well established i n the legal consciousness o f the international community, cannot perform the miracle o f transforming every State into a democratic and rights abiding society. International human rights norms will need to be known and implemented by independent courts, within systems where the rule o f law applies, and where judges share with the legislative and the executive the sense o f "owing a decent respect to the opinion of mankind".  315  The United K i n g d o m and the United States, along with several other nations, have implemented special laws to combat terrorism. While cooperation throughout the international community is required, these two nations have a c o m m o n legal heritage that establishes a broader systematic context within which to consider anti-terrorism legislation, both i n its impact upon individuals' fundamental  human  rights  and its  effective  implementation. Their particular anti-terrorism laws additionally share substantive and procedural principles i n defining, investigating and preventing terrorism. F o r these reasons, it is appropriate for each o f them to scrupulously consider the others' anti-terrorism legislation and improve its o w n to become as effective and respectful o f rights as possible, while contributing to a more harmonised and cooperative effort. Such comparison does not mean that the United K i n g d o m and the United States must unthinkably imitate their partner's approach or sacrifice its own constitutional values. Rather, through  serious  Justice Harry Blackmun, Am. Soc'y Int'l L. Newsl. (Mar.-May 1994).  97  consideration o f each other's anti-terrorism measures, each nation draws upon wider experiences and ideologies based upon similar underlying concepts that exist within a broader, shared normative context. This approach to combating global terrorism not only permits, but relies upon, the cross-fertilisation o f British and American strategies and their flexible adaptation to particular domestic circumstances. A s a result, these two c o m m o n law countries i n question, can improve a structure for an international, cooperative framework o f anti-terrorism law, which implements best practices tailored to national needs.  A s to the significance o f international human rights i n today's society, it is important to note that the progressive development o f international human rights law, and in particular the emergence  o f increasingly legalised international organisations, has  reinforced the political and economic interdependence  o f many nations. W i t h this  interdependence comes the inevitable tension between the need to remain i n international obligations and the wish to retain state sovereignty. 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