Analyzing the Definition of Terrorism in the Terrorism Act, 2000 - Term Paper Example

 Analyzing the Definition of Terrorism in the Terrorism Act, 2000 Section I of the Terrorism Act 2000 defines terrorism as: (1) In this Act “terrorism” means the use or threat of action where— (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organization or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it— (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section— (a) “action” includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organization. (UK Statute Law Database, 2008) This definition of ‘terrorism’ which is at the core of the Act has been the object of much analysis and criticism. The definition has drawn criticism on the grounds that it is too wide ranging in its scope, too arbitrary in its identification of what is termed as terrorism, too liberal in its delegation of powers to for curbing the menace, too intrusive in its excursions into the personal and fundamental liberties of the individual, and too prohibitive in its nature for democratic societies. On the other hand, those who prescribe to the given definition feel that terrorism by nature can be so generic, multifarious and omnipresent that any effort to curb or contain terrorism calls for appreciating and comprehending its scope and many dimensions in terms of its definition. The definition of terrorism will therefore have to incorporate all the aspects, dimensions and forms that go with it. Restricting the scope of the definition would inevitably result in restricting the efforts to fight terrorism. Those who hold such a perspective of terrorism nevertheless qualify it with the need to formulate a definition of terrorism “capable of maintaining a proper balance between the exigencies presented by the types of terrorism evident globally at present, and the need to sustain a fair system of law founded on undiluted democratic values.” (Carlile, 2007) Background of the Definition and Necessity Attempts to define terrorism in legal terms can be traced back to the Prevention of Terrorism (Temporary Provisions) Act of 1989 that stated that terrorism constituted “… the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear.” An inherent drawback in this definition was that violence had to be practically used, the threat of violence that is so fundamental to terrorism was not considered in the definition. The 1989 definition also did not take into account the critical role played by violence in the name of religion and religious ideology and non-political ideology. The definition of the 2000 Act was framed to remedy the deficiencies of the 1989 Act. Any attempt to define terrorism in its entirety would be a very difficult, if not an impossible task. This opinion has been expressed by many experts who have attempted to do so. “Above the gates of hell,” articulates Tucker (1997, pp. 51), “is the warning that all that enter should abandon hope. Less dire but to the same effect is the warning given to those who try to define terrorism.” Levitt (1986, pp. 97) thought that “a definition [of terrorism] is no easier to find than the Holy Grail.” Notwithstanding the difficulties involved, however, every state that wants to take on the growing threat of terrorism head on has to define the phenomenon in terms that can be easily comprehended and interpreted by the wide range of people who would be involved in the effort as well as the entire population of the state who would be affected in one way or the other by the measures that are adopted to curb terrorism and restrain its growth. For terrorism is a phenomenon that has a way of growing roots deep inside society in the most unexpected of manners both for whom terror becomes an instrument of use and for those to whom terror becomes a very unwelcome yet inevitable part of life. The Two Camps at Loggerheads The arguments over the definition of terrorism as given in the Terrorism Act of 2000 stem from two basic concerns or perspectives that are diametrically opposed to each other. The camp which refuses to accept the definition does so on the grounds that it infringes and tramples upon the democratic rights and liberties of individuals. On the other hand, the camp which stands by the definition, does so in the firm belief that the risk posed by terrorism and its unique nature as a crime call for proportional special laws to assist prevention, disruption and detection. To implement such special laws it becomes essential to define terrorism and describe its various aspects. The definition of terrorism in the Terrorist Act 2000, according to them, is in sync with internationally held views on terrorism and serves the purpose of providing a pragmatic approach to the Act, broadly if not precisely. Opposition and support to the definition of terrorism varies through a range of outright rejection of the need for definition or special laws for terrorism to the firm assertion that definition and special procedures and offences are required and that too in a very broad framework so that it is possible to anticipate all terrorist activities that are likely to occur in the future. At one extreme end is the argument that terrorism need not be defined nor is there any need to adopt special procedures to fight terrorism as all terrorist activities are covered by existing criminal laws. Any attempt to define terrorism or adopt special laws tends to curb the democratic rights and liberties of individuals and put arbitrary and unconstitutional powers in the hands of a few selected individuals in the name of law enforcement. This is followed by the argument that even though terrorism needs to be defined, adoption of special laws or rule is unnecessary. The sentencing powers for existing criminal laws can be adjusted and extended appropriately to take into account activities that adhere to the definition of terrorism. The next intermediate stage of the argument lays more emphasis on the definition. According to it, both definition and special laws and procedures are required to tackle terrorism but the definition need to be more tight and precise so that there is no leeway or loophole for misuse or arbitrary implementation of the laws. This is ultimately followed by the logic that terrorism needs to be defined in very broad terms and supported by laws and procedures that can effectively deal with terrorism in all its forms. A Matter of Discretion The definition of terrorism in the Terrorism Act of 2000 is criticized on several points. The point at the top of the agenda of almost all critics is that the definition is too broad and very widely drawn. Describing the statutory definition as too wide ranging for the clarity required,. Blick et. al. states that it “leaves room for political bias and could be used to prosecute people active in legitimate social or political movements who are exercising their rights.” Amnesty International and the Parliamentary Joint Committee on Human Rights (2005) have also expressed similar opinions. The fear is that individuals and organizations that are not involved in terrorism could fall into the ambit of the Act and easily be labeled as terrorists. Since the Act covers actions as wide ranging as causing serious damage to property, interfering with or seriously disrupting electronics systems and endangering public health irrespective of which governments are being affected or where the action is taking place, union strikes in the in the essential services sector, groups supporting action against repressive autocrats or regimes, or even direct action groups could be classified as terrorists even though, however disruptive their actions may be, they are quite apart and distinct from terrorist organizations and groups. Thus there is ample scope for the Act to be misused the Government. It could be used as a blanket tool to suppress legitimate demands of legitimate organizations and to protect and promote the interests of the government by labeling any opposition to it as acts of terrorism. Critics of the Act feel that a major lacuna of the Act lies in the provision which accords the Home Secretary almost discretionary powers to proscribe any organization if he or she believes that it is concerned with terrorism. Taken together with the definition of terrorism, this provision could theoretically be misused. When an organization is proscribed, membership and support to the organization could be an offence punishable by up to 10 years of imprisonment. The Home Secretary is however not required to make a case against the organization in court in order to proscribe it. The organization concerned does not even get a chance to defend itself against such proscription as it can appeal against the proscription only after it has been proscribed. The issue that is being raised here is the extent of reliance on the discretion of the police and the Crown Prosecution Service that is required to ensure that the definition of terrorism is applied appropriately. Supporters of the 2000 Act and its definition of terrorism argue that at some point reliance on discretion becomes inevitable, that we have to rely as strongly on discretion as we have done so far “on the basis that it is a precious and key exercise; and that the heaviest of responsibilities lie upon those in whom it is vested.” (Carlile, 2007, pp. 35) Moreover, it is possible to challenge proscription and prosecution through judicial review, and the intrinsic value of the jury trial always gives the public a say in matters of prosecution that it may find arbitrary or unreasonable. The Director of Public Prosecutions is also answerable to the Attorney General who in turn is both independent adviser to the government on legal matters and a member of the governing party holding senior ministerial post. This makes for a very delicate balancing act for the office holder and vests a lot of responsibility that works as a check against arbitrary decisions. It is therefore deemed that the exercise of discretion is an inherent part of what could be termed as the idiosyncratic Parliamentary system of the nation. The Angle of Religion A matter of great contention has been the issue of inclusion of the religious cause in Part 1 (c) of the definition. The fear that the inclusion of a religious cause of terrorism gives rise to possibilities of religious prosecution is real enough. In the present circumstances, when the Great War on Terror is more focused on fighting terrorism associated with a particular religious group, the danger of religious prosecution is more highlighted. It becomes very difficult to practically segregate the potential threats from the routine and harmless activities of such a religious group under the scanner. In Canada, a decision in the Superior Court of Justice has held that inclusion of a political, ideological or religious objective or cause in the criminal law as a part of the definition of terrorism constitutes an infringement of certain fundamental freedoms guaranteed in the Charter of Rights and Freedoms. Exponents of the definition however argue that if there is reason enough to include political and ideological causes then inclusion of the religious cause should find no objection. They suggest that wherever there is any element of doubt, the definition should be read together with the Article 18 of the United Nations Universal Declaration of Human Rights and the First Amendment to the Constitution of the United States of America. The definition of terrorism would be too restrictive without the inclusion of religious terrorism. It would be stripped off its pragmatism. This view is consistent with laws and approaches adopted in other countries such as Australia, New Zealand and South Africa. Defining Good and Bad causes Can there be something such as ‘good terrorism’? This is a question that has been at the root of criticism of the definition of terrorism in the Act of 2000. Many hold to the view that it should not be an offence if terrorism is used against oppressive regimes that do not honor human rights and international obligations with the condition that such terrorism does not deliberately target civilians and noncombatants. The case of Nelson Mandela (Nielsen, 2003, pp. 427) is often cited as an example. In other words, what is terrorism for one person could very well be heroism for the other person. The problem in this case is that the matter is too subjective. Who will decide whether a regime is oppressive or not? The case of the organization Mujahedin-e-Khalq (MEK) proscribed by the UK government, present an interesting picture in contrast. “Whilst most groups on the list of proscribed organizations under the Terrorism Act 2000 have some sort of perceived Muslim or Islamic affiliation, the MEK – whilst claiming to have some Islamic affiliation – openly target a form of political Islam i.e. the Iranian government.” (Islamic Human Rights Commission, 2006) The MEK views the Iranian government as a repressive regime, and has found a number of prominent supporters including British Lords and Members of Parliament. Maryam Rajavi, the leader of the MEK is living in exile in France. The MEK fights under a banner of human rights and democracy. However, the history of MEK is tinged with innate terrorist nature. They have been involved in terrorist attacks on Western nations as well as the Iranian government both in Iran and abroad. Under the present circumstances, when Iran is making threatening noises against the United States and the western world it becomes an attractive proposition to take MEK off the proscription list as demanded my many British politicians. The definition of terrorism in the 2000 Act would then have to be revised. The case of the MEK illustrates how the Terrorism Act of 2000 restricts actions that could affect the overall effort against terrorism negatively. Conclusion Criticism against the Act has also been focused on its vagueness in the use of certain terms and causes for prosecution. The use of the term ‘influence’ in the Part 1 (b) of the definition is deemed to be too shallow. ‘Intimidate’ is suggested to be a better word in the context of terrorism. Similarly, prosecution due to wearing certain types of dress is also pointed out to be too imprecise in nature. But terrorism is in itself so diverse in form and application that it warrants the provision of a very wide canvas of possible counter-terrorist activities. The war against terrorism will be decided not only on knowing what is very apparent and visible of terrorism in the present but also on comprehending what is hidden and subtle in the present and anticipating what is possible in the future. References -01 Blick A., Choudhury T., and Weir S., A report by Democratic Audit, Human Rights Centre, University of Essex, for the Joseph Rowntree Reform Trust. Carlile, Lord of Berriew, Q.,C., 2007, The Definition of Terrorism, Independent Reviewer of Terrorism Reviewer. Islamic Human Rights Commission, 2006, British Anti-Terrorism Policy and the MEK, Wembley, UK. Joint Committee on Human Rights, 2005, Counter-Terrorism Policy and Human Rights:Terrorism Bill and related matters, [Online] Available. http://www.parliament.uk [March 19, 2008] Levitt, G. 1986, Is Terrorism Worth defining? Ohio Northern University Law Review. Nielsen K., 2003, On the Moral Justifiability of Terrorism (State and Otherwise), 41 Osgoode Hall Law Journal Tucker, D., 1997, Skirmishes at the Edge of the Empire, Praeger, Westport. UK Statute Law Database, 2008, Terrorism Act 2000 (c. 11), Ministry of Justice, [Online] Available. http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=Terrorism+Act&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=2&NavFrom=0&activeTextDocId=1851854&parentActiveTextDocId=1851852&showAllAttributes=0&hideCommentary=0&showProsp=0&suppressWarning=1 [March 19, 2008] Read More