The Study of the History of Criminal Law for Understanding of Concerns about Terrorism - Coursework Example

TITLE: CRIMINAL LAW AND TERRORISM STUDENT NAME COURSE TITLE TUTOR DATE TABLE OF CONTENTS TABLE OF CONTENTS 2 INTRODUCTION 3 HISTORY CRIMINAL LAW 4 HISTORY OF TERRORISM 5 The Legal Framework for Terrorism 6 INTERNATIONAL DIMENSION OF TERRORISM 8 CASE LAW ON TERRORISM 10 POLITICAL CONCERNS 11 SOCIAL CONCERN 13 MORAL CONCERN 14 What is the essence of Having Criminal law and Anti-Terror Laws? 15 CONCLUSION 15 BIBLIOGRAPHY 17 INTRODUCTION The war on terror in the 21st Century has been necessitated by the increase in attacks by terror groups such as the Al-Qaeda and suicide bombers. The 2001, September 11 attacks in the United States of America served as a warning sign to many countries including the United Kingdom to create legislation to protect its citizens from any form of terror attack as well as to provide for a mechanism to prosecute those who are involved in terror activities. Criminal law sole purpose was to ensure that there was public order and that the society is protected from those who are perceived to be errant and prone to creating disturbance to the society. Criminal law achieves this purpose through; the prohibition of certain behaviour that is perceived to be detrimental to the interests of the society, punishing the behaviour, confinement of the defendant , deterring other members of the society from committing such crimes and ensuring retributive justice. Criminal law main elements are actus rea (commission of the act) and mens rea (intention to commit the crime or act). Terrorism is equated to a crime and the elements of criminal law mainly the intention and commission of the act is necessary however there is need to qualify the intention and link it to the act. For instance a person who plants a bomb in a densely populated area and detonates it and injures people will be considered a terrorist. However if the person is caught and subjected to the criminal justice system then he ought to be treated fairly and in accordance with the law. Moreover in the past it was stated that where the law was silent, then a person would not be punished for crimes that were non-existent however the retrospective aspect of the law on terror stems from international law practice of trying heinous crimes regardless of whether it is provided for in the law or not, as long as it is against humanity. The scope of the paper will focus on the history of both criminal law and terrorism and link it to politics, social concerns and moral aspects of both criminal law and terrorism. HISTORY CRIMINAL LAW Criminal law has in history been treated as the branch of law that is used to punish offenders or perpetrators of certain crimes in the society. Law is defined as being what is written down in a statutory instrument to regulate the behaviour of individuals in the society. The main elements of crime established in time are that of mens rea (the criminal intention) and actus rea (the commission of the act). Nicola Padfield (2008) asserts that in drawing a distinction between other branches of law and criminal law, the main thing to consider is that criminal law involves the description of behaviour which would make a person liable to punishment by the state1. Terrorism can be said to be proscribed by the law and any person found guilty is liable to be prosecuted and charged for being a terrorist. Proscribing an act such as terror means that the society is protected from dangerous behaviour from groups that are considered to be terror groups and that the society is assured that they would be punished according to the law once they are apprehended. Criminal law according to Ashworth’s Principle of Criminal Law identifies the key principles that should govern criminal law and that is the principle of autonomy2. The principle of autonomy determines liability and that it aims at; preventing of harm to others, the minimum intervention (the law should not criminalize too much behaviour) the principle of fair warning, the non-retroactivity principle, the principle of proportionate response, social responsibility and upholding common good. Further the law on criminal law should be able to be certain with no ambiguities as well as it must utilize the principle of the presumption of innocence and fair labelling. These canons are all important for any legal system that seeks to decriminalize terrorism3. The human conduct is dynamic and it is effortless to determine whether a person would commit a crime or an act of terror and therefore prohibition and the creation of punishment mechanisms acts as deterrents for those who would be planning to commit an atrocious crime. Acts of terror usually cuts across the ambits of criminal law because if you use the act of murder, it will remain murder regardless of whether it is committed by a mobster, an armed robber or a mobster. However the only distinction is the level of aggravation as well as the number of people who are victims through the acts of terror. It is worth noting that before the entry of the Terrorism Act, Criminal law legislation had provided for most of the crimes linked to terrorism such as murder, and therefore the Act acted as a supplement to providing for areas of law that had not previously been provide for. HISTORY OF TERRORISM An act of terror and terrorism in itself have been in existence over the decades but has only come to light in the modern days through the acts of Al-Qaeda a self-acclaimed group of Islamic terrorist. In history as far back as 1605 Guy Yates was considered a terrorist when he plotted to blow the houses of parliament, the 19770s Boston tea party, the Ku Klux Klan that use violence to highlight its ideology of white supremacists, assassination of Archduke Franz Ferdinand, the Munch Olympics Attack, Lockerbie Bombing, and the 2001 September attacks in the US at the World Trade Centre. The definition of terrorism has become quite elusive with the definitions being given by both the judicial authorities and scholars in the field of terrorism. For instance in the case of the United States v Yousef4 stated that in trying to define what terrorism is there ought to be a host of considerations and factors that include the motive of the perpetrator, the methods used the targets and lastly the victims of the act5. Closer home the European Convention on the Suppression of Terrorism defines terrorism on the basis of the method of violence used by the perpetrator and it removes the motive of it being political by defining the most violent acts as “non-political”. The definition is verbatim says; “Involving the use of bomb, grenade, rocket, automatic firearm, or letter or parcel bomb, if this use endangers the person”6 It is worth noting that even before the rise of modern terrorism (period of 2001 after the September 2001) the United Kingdom under the Prevention of Terrorism Act 1969 had already listed groups of organizations that were considered to carry out terror activities; this included; the Irish Republican Army, the Irish National Liberation Army, the Red Hand Commando, the orange volunteers amongst others7. The offences which were listed under the act provided that if a felon was convicted, he would be liable for imprisonment and a £5000 fine would be given. The Legal Framework for Terrorism The foundations of the legal framework to proscribe and punish terror dates back to as far back as 1968 but there was need to provide legislation to adapt to the dynamic nature of terrorism. Nicola (2008) that the Terrorism Act 2002, the offense of terrorism belonged to the group of persons who belonged or professed to belong to an organization that was proscribed , or aided its operation through financial support8. In 2001 the Anti-Terrorism, Crime and Security Act was introduced. The prohibition of the use of noxious gases to cause harm and intimidate the citizen was a major addition to the law on terror.9 This act was adopted by parliament quite hastily due to the attack in US of the World trade centre taking a little over a week to pass it. The offences that were introduced included those of racial and religious hatred, the use of weapons of mass destruction by terrorist, the detention of terrorists who are suspected to be international criminals as well as the issue of the seizure of the property of a terrorist once a person was arrested. The rights of a detainee were also enshrined and this was to ensure that the integrity of the proceedings was valid and did not raise doubt. The most progressive aspect of the act was the introduction of internment without trial within the UK laws and a person suspected to be an international terrorist was to be interred especially if the person poses a risk to national security. Detention of a terrorist was not to be challenged in any court of law and there would be no review. This development was essential to ensure that the law did not fail to protect its citizens and that there was no ambiguity contemplated by the law The terrorism Act 2001 was amended in 2005 and 2006 to introduce new offences which include the offences of breaching control orders and to include the offences of encouraging terrorism10 and the inciting of commission of acts of terrorism outside the United Kingdom11. The other new offences were; the offence relating to bookshops and those who disseminate publications on terrorism , the offence of preparation to further acts of terrorism, the offences relating to radioactive materials or devices,, nuclear materials as well as the amendment of the penalties for offences relating to nuclear materials. In 2008 there was the introduction of the Counter-Terrorism Bill which to amend the definition of terrorism under section 1 of the Terrorism Act 2000 and all other terrorism legislation to include the insertion of the word racial cause and offences of eliciting, publishing and communicating information relating to the armed forces that can be used by terrorist to perpetrate terrorist attacks12. INTERNATIONAL DIMENSION OF TERRORISM International law is that body of rules that are set to regulate the conduct of states and in the recent years also relates to the conduct of an individual. Terrorism is not only a criminal act that is only susceptible to the United Kingdom but international law has also focused on it immensely. Individual criminal liability is a concept that is attributed to terrorism and that any person who is captured for having committed such crimes would face an indictment at the International Criminal court. In international law Article 404 of the Restatement (Third) of the Foreign Relation Law of the United States provides a list of universal crimes13 states that: 'A state has jurisdiction to define and prescribe punishment for certain offences recognised by the community of nations as of universal concern, such as piracy, slave trade, attacks on hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism.'14 It is critical to note that terrorism has attained the status of being a crime that is in violation of international law and can be considered to have attained the status of jus cogens. The Geneva Convention III also list terrorism as a crime and even it is proscribed under war crimes. In 2008 the Security Council adopted resolution 1822 (2008) in relation to the Al-Qaeda and Taliban Sanctions and the Security Council stated; “That terrorism in all its forms and manifestation constitutes one of the most serious threats to peace and security and that any acts of terrorism are criminal and unjustifiable regardless of their motivations, whenever and by whomsoever committed and reiterating its unequivocal condemnation of Al-Qaeda…… multiple terrorist acts aimed at causing death of innocent civilians and other victims, destruction of property and greatly undermine stability.” It is worth noting that international law has considered terrorism to be a criminal activity and it has criminalized all forms of activities that are committed during terror attacks. The main aim is to ensure that innocent civilians are protected and that no form of justification can be drawn from terror activities. A terror suspect cannot purport to use an excuse to justify these activities and that any person who commits such acts would be in breach of international law. The categories of terrorism in international law include it as a war crime, a crime against humanity and terrorism as a discrete crime. There is also the multiplicity of the crime of terror that is when it is committed other forms of crimes such as murder and willful killing are bound to arise as charges. CASE LAW ON TERRORISM The important role of precedent in the UK is to ensure that there is certainty in relation to the punishment of terror suspects within the UK. Over the past years after the enactment of Terrorism Act 2000, the UK has prosecuted as host of terror suspects for the perpetration of terror activities within and outside the UK. There have also been numerous extraditions of the suspects to other nations to face trail within those jurisdiction. The UK is a member of the European Union and a signatory to the European Convention on Human Rights (ECHR) which is the legal document that establishes the European Court of Human Rights. Article 15 of the ECHR allows the states to unilaterally derogate some of its obligations to the ECHR in exceptional circumstances in cases of terrorism. In the case of A and Others v the United Kingdom15 the UK submitted derogations in 2001 after the 2011 attacks in the USA this in relation to the provisions of the European Convention on Human Rights Articles 15 . This was also done in Brannigan and Mc Bride v the UK where derogations were submitted in respect to Northern Ireland. It is important to note that in the issues of prosecuting detainees suspected to be terrorists they are entitled to some rights and that some measures are not permissible. In a pending case of Amin and Ahmed v the UK the applicants were arrested in Pakistan in 2004 and before being deported to the UK , where they were to be tried and convicted for their role in terrifies they complained of torture by the Pakistani authorities . They also alleged that the criminal proceedings were unfair against them in the UK and that written materials were withheld from them on the grounds of public interest. They stated that the Article 3 on Prohibition of Torture, of inhuman and degrading treatment as well as Article 6 (1) of the ECHR right to fair trial had been violated. The same was seen in the French case of Ramirez Sanchez v. France where the accused known as the famous Carlos the Jackal said that during his confinement there were violations of Article 3 and 13 of the ECHR convention following his conviction for terrorist related offences. A challenge in the punishment of terrorists and terror related offences has been hindered with the question of whether it is right to extradite a terror suspect. This question was considered in the case of Aswat v. The United Kingdom where the complainant had been detained in the UK and stated that his extradition to the US would amount to ill-treatment because of the detention conditions and would likely exacerbate his condition of Schizophrenia. In this case the court held that the extradition would amount to violations of Article 3 of the ECHR16 and that he should not be extradited until further orders were given. This was also evident in the case of Barbar Ahmad and Others V the United Kingdom17 creating a general presumption that a suspected terrorist should not be extradited or deported to a state where the extradition would outweigh the risk of ill-treatment on the individual’s return, regardless of the offence or conduct. POLITICAL CONCERNS Amongst one of the greatest political achievements by the society is the establishment of the rule of law as a political tool to monitor activities of both the governed and the ruler. In its very core principles is that a person in authority ought to fall all the procedures contemplated by the law to effectively ensure the guarantee of the rights of the citizen; what is referred to the due process. For instance a terror suspect must be treated according to the law and any breach of the law would be a violation of his right. During any criminal proceedings the due process of the law ought to be followed to ensure that the rights of an individual are guaranteed and protected. The legislative arm of the government within UK is entitled to formulate rules of law that aims at achieving the ultimate goal of protecting the society and not infringe the rights of privacy and rights of a person guaranteed under the Human Rights Act 1998 or the European Convention on Human Rights. The idea of the rule of law in the United Kingdom was enshrined by Albert Venn Dicey who urged parliament that when legislating they ought to consider the spirit of legality18 in ensuring that once a law has been passed it becomes enforceable as well as it can fill the gaps that exist is the issue of tackling terror. It can be considered that before 2000 there was no terrorism laws even though some of the elements of the crime were provided for under criminal law. It was the existence of the gap in the laws the precipitated the legislature to ensure that crimes attained the status of a norm to protect its citizens from the crime of terrorism19. A change of the law by the state ought to be justified and in this case justification of the crime of terror to be proscribed is relevant to the United Kingdom20. The justification in opinion is that the change in the law is warranted on the basis that it protects humanity as well as since the United Kingdom us already part of the states involved in counter terrorism and the war against terrorism it would be prudent to have laws that provide for prosecution of terrorists within its own country21. SOCIAL CONCERN The social aspect of criminal law and terrorism are to be considered on the basis that sociologists distinguish between norms and mores, while those who study philosophy discuss it on the basis of morals and what is morality. A famous sociologist Max Webber (1864-1920) stated that the main purpose of law is to regulate the flow of how the human race interacts. It is usually in the best interest of the society to understand the role played by criminal law in protection of the society and prevention of crime. It is asserted by many that criminal laws main purpose is to make the society safe for all those living within it. It has been stated that crime is a social concern and through the punishment of a terrorist as a criminal perpetrator it gives a rationale to the intention of the society to demonstrate its disapproval of an offenders conduct by means of a public trial or hearing and a conviction to punish the offender through a penal sanction22. The other social dimension of criminal law in the fight against terrorism is through the restraint of a terrorist or a criminal either through detention, imprisonment, home arrest or any other means that keeps an offender out of the s rest of the population. The main ambits of social concern is whether criminal law fulfils its purpose of ensuring that the general public is protected from both intentional and non-intentional harm, the public order is maintained, it deters criminal activity and perpetration, it rehabilitates the offender as well as it gives a threshold for the society to determine what constitutes a criminal wrong and what is a civil wrong. The conduct of individuals within the society is what makes criminal the foundations for the punishment of a terrorist in the modern forms of crimes that are committed against humanity. The creation of criminal law and especially anti-terror law is to effectively strengthen the position adopted by Bentham that the law was flexible and uncertain and it changes to ensure that there is a continued economic and social development of any particular country. In any country where there is no rule of law, then order and social issues cannot be addressed. MORAL CONCERN Roscoe Pound (1870-1964) advanced the idea that the law aims to exert a powerful control on the conduct of humans and it used purposely as a tool to intentionally shape the society23. In his writing he postulates that in a civilized society. The other question raised by Lord Devlin in relation to tying morality and the law; he said that the society in itself cannot live without morality and which the standards set out by morals is the acceptable standards for which man should live by24. The main issue however is who should enforce morality, and whose morality is the court enforcing? The tests proposed by Devlin in determining whether or not something is immoral and in this case one must consider whether in the first instance of looking at terrorism, calmly and dispassionately they vice will be regarded as being so abominable that its mere presence is an offence25. In advancing the argument that terrorism is an immoral action, it is on the basis that its very existence it fails to preserve public order and decency as well as it does not protect the citizen from injurious aspects of its effects. In his opinion there is a general issue of the society’s need to protect its moral principles and standards both towards the victims and the perpetrator. On the other hand if the society has a right, then it ought to use the right in a justifiable way through its institutions and sanction of criminal law to enforce the right. It is therefore a general acceptance therefore that the acts of terrorism and terror itself are an act which is immoral in society because it fails to protect the sanctity of the human race. An immoral act therefore ought to be punished in any society however the punishment meted must be just and meet the set standards of being moral26. What is the essence of Having Criminal law and Anti-Terror Laws? An important assumption was developed by David Hume on the importance and the supremacy of the law. The rule of law is usually based on the premise that in any orderly society there must be a set of well-established principles which ought to be applied uniformly and fairly to all the members. Under this premise nobody should be above the law and those who enforce this law should abide by it. This sums up the fact that without criminal law and anti-terrorism legation, then the society would be in chaos and there would be no orderliness. CONCLUSION The acts of terrorism and terrorist cannot be separated entirely from criminal law because the acts that they engage in are atrocious and affect the society in general. It is worth noting that the sole existence of criminal law is proscribe conduct that is immoral and endangers humanity as well as protect the society from activities of individuals who can harm them. Terrorists are criminals by nature and they blatantly take the lives of others without fear or favour in order to advance their ideologies and disgust to certain things; however in crime there can be no justification. The need to have a legislation to protect the society from such acts is important because it ensures that those who act contrary to the provisions of the law are punished and that others are deterred from committing such acts. The law is dynamic and therefore it ought to change with the changing circumstances in society and it must be relevant, certain and unambiguous at all times to ensure that all the citizens are protected. Morality and social concerns are at the heart of determining whether an act ought to be proscribed and the legislature undertaking the role of creating laws are faced with the task of ensuring that the law is covered. The other issue a keen to the punishment of terror is ensuring that the kind of punishment meted out is consistent with human rights and that the rights of the accused are meted out. Only time will tell of whether new forms of terror would arise and whether the law would be subject to change to ensure that all forms of terror activities are punished just like criminal activities are proscribed by the law. BIBLIOGRAPHY A. Ashworth, “Punishment and Compensation: Victims and the State,” Oxford Journal of Legal Studies, Vol. 6 (1986),p. 89. Adorno,Theodor and Max Horkheimer Dialectic of Enlightenment. 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(Charlottesville, VA: The Michie Company, 1993), p. 3. Kagan, Robert, Of Paradise and Power: America and Europe in the New World Order. (Knopf, 2003). Pape, Robert ‘The Strategic Logic of Suicide Terrorism’, American Political Science Review 97 (2003) 343–61. R Brown Fighting Monsters: British-American War-Making and Law-Making (2011 Oxford Hart Publishing). Ronald M Dworkin, Lord Devlin and the Enforcement of Morals ,Yale Law School Repository 1966. S. Smith, Debate over Iraq Raises Fears of Shriking Role of Nato.( New York Times, Jan 26th , 2003) Sommier, Isabelle ,“Terrorism” as total violence’, International Social Science Journal 54 (4) (2002) 473–81. Sznaider, Natan ,The Compassionate Temperament: Care and Cruelty in Modern Society.( Rowman & Littlefield 2001). Torpey, John , “Making Whole What Has Been Smashed”: Reflections on Reparations’, Journal of Modern History 73 (2) (2001) 333–58. Weisbrod, Bernd, “Fundamentalist violence: political violence and political religion in modern conflict”, International Social Science Journal 54 (4) (2002) 499–508. Legislation Anti-Terrorism, Crime and Security Act 2001 Convention on the Suppression of Terrorism 1977 Counter Terrorism Bill 2008 European Convention on Human Rights Human Rights Act 1998 Terrorism Act 2000 Read More