{"id":421,"date":"2019-04-10T12:22:22","date_gmt":"2019-04-10T12:22:22","guid":{"rendered":""},"modified":"2019-06-11T08:13:00","modified_gmt":"2019-06-11T08:13:00","slug":"war-terror-human-rights-6622","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/human-rights\/war-terror-human-rights-6622.php","title":{"rendered":"Effect of the War on Terror on Human Rights"},"content":{"rendered":"

Hiding
\nbehind the \u201cWar on Terror\u201d, The Governments licence to abandon Human Rights.<\/strong><\/p>\n

A new dawn of terrorism challenged the world with the catastrophic
\nevents on 11th<\/sup> September 2001[1]<\/a>
\nin America. Following the attacks in the President, George W Bush, declared a
\n\u2018War on Terror\u2019.[2]<\/a> <\/p>\n

In declaring War, President Bush widened the parameters available to
\ncombat the terrorists. Wars had been fought between conventional military
\nforces in a defined theatre of operation. On 29th<\/sup> September Bush
\nsaid \u201cOur war on Terror will be much broader than the battlefields and the
\nbeachheads of the past. The war will be fought wherever terrorists hide, or
\nrun, or plan.\u201d[3]<\/a> This
\nchoice of words discounted the notion of the term \u2018War\u2019 was not political
\nrhetoric. Metaphoric wars have been fought on drugs, racism and the like when the
\nword \u2018war\u2019 in these cases was used to drum up populist support. Bush meant a
\nreal war, with the associated loosening of the Rule of Law that binds a government.\n<\/p>\n

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

The United Kingdom<\/a> and the United States enjoy a Special Relationship. In 1946 Winston Churchill coined the phrase to describe the exceptional close relationship between the two countries. After the 9\/11 attacks Tony Blair the British Prime Minister, said \u201cThis is not a battle between the United States of America and terrorism, but between the free and democratic world and terrorism. We therefore here in Britain stand shoulder to shoulder with our <\/em>American friends in this hour of tragedy, and we, like them, will not rest until this evil is driven from our world<\/em>.\u201d[4]<\/a><\/p>\n

A fundamental responsibility of government is to protect its people. Therefore,
\nit is essential they maintain an level of readiness to terror attacks, has
\nlegislation to prevent attacks and sanction suspectes. Despite the Good Friday
\nagreement[5]<\/a>,
\nwhich saw the start of the peace process in Northern Ireland, the Government
\nstill passed the first major piece of anti-terror legislation for the UK, the
\nTerrorism Act 2000 (TA2000).  Section 1
\nof this act defines terrorism[6]<\/a>
\nand whilst at the home office, Tony McNulty MP said the definition is
\n\u201ccomprehensive and effective….\u201d He claimed that \u201cthere is no evidence that the broadness of the definition has caused
\nproblems in the way it has operated<\/em>\u201d[7]<\/a> However, it has
\nreceived strong criticism from a wider political spectrum and academics. A
\nreport by Essex University entitled \u201cThe
\nRules of the Game<\/em>\u201d it describes the definition as wide and it \u201cleaves room for political bias and could be
\nused to prosecute people active in legitimate social or political movements who
\nare exercising their rights<\/em>\u201d[8]<\/a><\/p>\n

The TA2000 detracted from the normal Rule of Law. Section 41 of
\nthe Act provided the police with the power to arrest and detain a person
\nwithout charge for up to 48 hours if suspected of being a terrorist.[9]<\/a>This period of
\ndetention could be extended to up to seven days. Ordinarily in criminal law, suspects
\nhad to be charged within 24 hours of detention or be released[10]<\/a>. <\/p>\n

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

Following 9\/11 the Government built
\non the TA2000, which was already \u2018widely regarded as the most rigorous in
\nEurope\u2019[14]<\/a>,
\nby introducing the Anti-Terrorism, Crime and Security Act 2001 (ATCSA2001).
\nThis act was criticised by the Select Committee for Home Affairs for the speed
\nit was introduced.[15]<\/a><\/p>\n

ATCSA2001 passed through parliament
\nwith the Home Secretary claiming that a state of \u201cpublic emergency threatening
\nthe nation\u201d existed, necessitating a derogation from Article 5 of the ECHR[16]<\/a>
\nand Article 9 of the International Covenant on Civil and Political Rights[17]<\/a>.
\nThe derogation was being made under Article 15(1) of the ECHR; This refers to
\n\u2018war or other public emergency threatening the life of the nation\u2019. In the Note Verbale <\/em>made to the Secretary
\nGeneral of the Council of Europe on 18th<\/sup> December 2001[18]<\/a>
\nthe government cited the UN Security Councils\u2019 resolutions 1368(2001)[19]<\/a>
\nand 1373(2001)[20]<\/a>. These
\nresolutions \u2018required all states to take measures to prevent the commission of
\nterrorist attacks, to include denying safe haven to those who finance, plan,
\nsupport or commit terrorist attacks\u2019.<\/p>\n

An Article 5(1)(f) derogation was
\nsought, enabling the continued detention of suspected terrorists, or those with
\nlinks to terror. It was not possible for these individuals to be bought to a
\ncriminal trial. There was insufficient evidence for the high standard of proof
\nneeded to secure a criminal conviction, or the evidence was obtained in a
\nmanner that its disclosure would be of detriment to the intelligence
\nservices.  Logically, the solution came under the Immigration Act 1971.
\nIt allows for the deportation of those who are a threat to national security
\nfor cases where there is insufficient admissible evidence for prosecution but the
\nECHR had ruled in Chahal[21]<\/a> that consideration of
\narticle 3 of the ECHR[22]<\/a> is absolute in expulsion
\ncases:<\/p>\n

\n

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

The wording of Article 15 is explicit in that for a derogation there had
\nto be a \u2018threat to the nation\u2019 During the limited parliamentary passage of ATCSA2001, a brief
\nexchange was noted regarding the validity of the derogation. When the backbench
\nMPs questioned how the life of the nation was a threat, the retort from the
\nexecutive was sharp and swift. Minister Beverley Hughes referred to the UN
\nresolutions and the doubting of the need of the derogation in the circumstances
\nas an \u2018extraordinary\u2019 question to ask.[24]<\/a>
\nGiven the UK\u2019s close and unwavering relationship with the USA and the
\nInternational outrage following the 9\/11 attacks it would have been
\ninconceivable for a MP to publically denounce the wishes of the Home Secretary.
\nThe 1997 UK general election had produced a landslide victory for the Labour
\nparty[25]<\/a>
\nso the Blair administration had no opposition to the implementation of the act.\n<\/p>\n

During the whole of the parliamentary process there
\nwas no mention of a specific threat to the UK. Lawless v Ireland[26]<\/strong><\/a>
\n<\/em>defined the circumstances for a derogation to be a \u2018threat to the organised
\nlife of the community of which the state is composed\u2019[27]<\/a>.\n<\/p>\n

It is notable that there is no requirement for the
\nmember state to disclose what the threat is. It is just taken in good faith. Traditionally the ECHR
\nprotects against \u2019naked, bad faith abuse of power\u2019[28]<\/a>
\nHowever, in protecting human rights the European Court also has to deal with
\nrestrictions imposed, which whilst impacting disproportionately on the
\nindividual, were imposed in good faith[29]<\/a>.\n<\/p>\n

Following ATCSA2001 receiving Royal Assent the Home
\nSecretary was empowered under Part 4 to certify any foreign national as a
\n“suspected international terrorist\u201d. This wording is significant as UK
\nnationals cannot be detained under immigration powers. Indefinite detention
\nwithout trial on the basis of criminal law powers would be incompatible with
\ninternational human rights and domestic law, even where a public emergency
\nexisted. However, Article 14 ECHR requires there be no discrimination in the
\napplication of human rights on any ground. <\/p>\n

Sixteen Muslim men were detained
\nindefinitely as suspected international terrorists. Of these, one man (M) was
\nreleased by SIAC after 16 months in Belmarsh Prison, as it found the evidence
\nunreliable. Another man (D) was released as the government found new evidence
\nthat he no longer posed a threat. Two others chose to return to their country
\nof origin. <\/p>\n

The legislation provided that a person held under these
\nprovisions could have their case reviewed by the Special Immigration Appeals
\nCommission (SIAC)[30]<\/a>.
\nThis commission was the appeal court for those facing deportation, usually for
\nNational Security reasons. These hearings were unusual as the appellant was not
\nallowed to have knowledge of the evidence against them. The judgements are
\nnever made public; not even to the appellant, contrary to Article 6 of the ECRH.[31]<\/a><\/p>\n

Initially, 9 of these men took their
\ncase to the SIAC, which found that the derogation from article 5(1) was
\nunlawful on the grounds that it breached the non-discrimination provision under
\narticle 14 of the ECHR, from which the U.K. government had not derogated. The
\nSIAC held that the detention provisions breached ACHR articles 5 and 14, \u2018A
\nperson who is irremovable cannot be detained or kept in detention simply
\nbecause he lacks British nationality\u2019[32]<\/a>.
\nThe SIAC did uphold that there was a public emergency within the meaning of
\narticle 15.[33]<\/a> <\/p>\n

This decision was reversed in the
\nCourt of Appeal in October 2002. Subsequently it was appealed by the detainees
\nand in a landmark ruling in the House of Lords that became known as the
\nBelmarsh Case[34]<\/a> The Law
\nLords accepted  7:2 that the detention
\nwas lawful, but incompatible with the ECHR because
\nit discriminated between nationals and foreign nationals (Article 14).  It was only Lord Hoffman who whilst dissenting
\nstill allowed the appeal. His reasoning was based on the \u2018threat to the life of
\nthe nation. He stated <\/p>\n

\n

\u2018This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community<\/em>.\u2019[35]<\/a><\/p>\n<\/blockquote>\n

The ruling from the House of Lords
\ndid not declare ATCSA2001 as illegal. Its ruling implied that if it didn\u2019t
\ndiscriminate it would have been legal to detain on an indefinite basis, detain
\nwithout proof of any crime, detain on a suspicion, and detain without the
\ndetainee knowing either the case or the evidence against him.<\/p>\n

New Labour\u2019s flagship Human Rights Act[36]<\/a>
\nwas heralded by Lord Irving as \u2018major significance protecting the individual
\ncitizen against erosion of liberties\u2019[37]<\/a>
\nThe ATCSA2001 was the first significant test of the government\u2019s
\ncommitment to this. Despite its apparent loss in the courts, and abandoning the
\nact in favour of the Prevention of Terrorism Act 2005 (PTA2005) It was not a
\ntriumph for Human Rights. <\/p>\n

PTA2005 introduced control orders. control
\non an indefinite basis, control without proof of any crime, control on the
\nbasis of a reasonable suspicion, and control without the controlee having to
\nknow either the case or the evidence against him. But, as they applied to both
\ninternational and UK suspects then they are deemed legal.[38]<\/a> . Tony McNulty MP, claimed that the
\ncourts have \u2018endorsed the principles of the control-order regime\u2019[39]<\/a><\/p>\n

Whilst hiding behind the spectra of
\na \u2018War\u201d, with the judiciary backing, the Government are free to disregard the
\nmost principles of the Rule of Law and at best, pay lip service to Human
\nRights. <\/p>\n

Bibliography<\/h2>\n

BOOKS<\/h3>\n