Is It Reasonably Possible to Reconcile the Demands of Anti-Terrorism and Human Rights - Coursework Example

Is it reasonably possible to reconcile the demands of anti-terrorism and Human Rights? In determining whether anti-terrorism legislation is compatible with Human Rights it is necessary to understand the context under which the legislation has developed. The greatest impact has been felt internationally since 9/11. Prior to this attack terrorism was apparent on a minimal level, with isolated attacks and only relatively small amounts of victims. 9/11 heralded a new degree of terrorism on a huge scale with many thousands of casualties and fatalities. Such was the fear instigated from this attack that governments around the world reacted by increasing legislative measures against suspected terrorists in order to prevent similar occurrences. Unfortunately these measures failed to prevent the 7/7 attack in the UK in which several people were badly injured and a high number were killed, though not on the scale of the 9/11 atrocity. In order to understand the need for legislation to control such activities it is necessary to define what is meant by terrorism. According to Jenkins (2003) terrorism is concerned with the motivation of the attack and not the way in which the attack is inflicted. A generalised definition of terrorism is the use of intimidation or violence that is aimed at coercing or disrupting the community and the government. Most terrorist attacks tend to be motivated by religion or politics. It was noted by Wilson (2003) that most terrorist attacks are directed towards civilians rather than the government. It would appear to be the intention of the terrorists to cause insecurity and maximum amount of injury to members of the public in order to destabilise the confidence of the public in the government, on the basis that the have not taken adequate steps to protect against such attacks. In direct response to the threat of attack the respective governments have been compelled to introduce tougher measures designed to protect the nation. According to Furedi (2005) governments have adopted the ‘politics of fear’ in order to persuade the population of the need for more stringent controls. Following 9/11 George Bush made a speech in which he made it abundantly clear that no one was entitled to ‘sit on the fence’, when it came to deciding what action should be taken to prevent future attacks. In his speech to the world he stated that ‘you are either with us, and against the terrorists, or you are on the side of the terrorists’. It was observed by Burkitt (2005) that neo-liberal politicians are experts at nurturing and harnessing the fear factor in order to legitimise the changes in law and order practices. It was this fear that was used to push forward draconian legislation aimed at targeting potential terrorists. Amongst the changes proposed within the UK was a whole array of authoritarian and punitive restrictions on asylum seekers, by portraying those of foreign origins as potential terrorists. Prior to 9/11 terrorism was governed by the Terrorism Act 2000. Since the atrocity several additional Acts have been passed aimed at targeting ethnic minority groups, who have been deemed as a potential threat. Throughout the UK there have been a number of unlawful detentions and surveillance techniques adopted, specifically aimed at ethnic minority groups. Following 9/11 a Bill was swiftly passed through Parliament culminating in the Anti-Terrorism, Crime and Security Act 2001. This was soon followed by the Prevention of Terrorism Act 2005 and the latest Terrorism Act 2006. Under the 2005 Act home-custody orders were introduced, alongside trials without a jury and permission to use wire tap evidence in court. These Acts also gave the courts the power to grant civil orders against persons suspected of being involved in acts preparatory to terrorism (Morris 2004b) Various studies carried out reveal that police have demonstrated a tendency to target suspects on the basis of their religion, skin colour and origin of birth. It was noted by Morris (2004a) that between 2001- 2002 744 anti-terrorist legislation was used to stop and search at least 744 Asian people. Morris also noted that this number rose to 1,989 during 2002-2003. Much of the fear of terrorism has also been fuelled by the Foreign and Commonwealth Office in which 11 countries have been identified as ‘countries of concern.’ Persons whose birthplace is amongst the 11 listed will have to have work applications approved by the government before they can commence employment. A number of cases have been brought before the courts challenging human rights issues. In the case of Secretary of State for the Home Department v F [2008]1 the Secretary of State had applied to the court asking them to overturn a previous decision in relation to the disclosure of evidence in terrorist cases. In the original decision the court had held that the prosecution had a duty to disclose material to the respondent. On appeal the court stated that according to the regulation there was no minimum requirement and therefore the lack of disclosure did not amount to a breach of Art 6 ECHR. This effectively endorses the notion that in cases where the accused is suspected of terrorist activity the prosecution is not required to disclose evidence that might assist a suspect in the preparation of their defence. Other cases where the respondents have attempted to rely on a breach of the ECHR include the case of Raissi v Commissioner of the Metropolis [2008]2, in which the plaintiff was making a claim for unlawful arrest and detention. In this case the arresting officer had arrested the plaintiff on the basis that he suspected the plaintiff was involved in terrorist activities. The basis of this assumption centred on the fact that the brother of the accused had also been arrested and detained on suspicion of terrorist involvement. The arresting officer admitted to hoping that his colleagues would be able to provide further evidence to support the suspicion. The court stated that the basis of the arrest was flawed since the arresting officer had not been able to demonstrate any reasonable grounds for suspecting the accused of such an offence. The court held that the arrest had been unlawful and ordered the immediate release of the accused, stating that the conduct of the arresting officer amounted to a breach of Art 5 of the ECHR. In the case of Ignauoua v Italy3 the applicant was asking the court to overrule the extradition order. The applicant was due to be extradited to Italy having been charged in the UK with suspected terrorist activity. The applicant, relying on evidence from others who had been extradited to Italy, attempted to have the extradition cancelled on the grounds that he would be deported back to his homeland following the extradition. He averred that deportation to his homeland would result in his execution. The court stated that under Art of the ECHR the Italian government would not be allowed to deport him back to his homeland. Despite evidence adduced by the applicant to demonstrate that the Italian government had preciously ignored the requirements of Art 3 the extradition was upheld and he was duly extradited. Since the recent terrorist attacks it would appear that the government, police and the courts consistently find ways to circumvent the requirements of the ECHR. This was demonstrated in the case of R (on the application of I) v Westminster Magistrates Court [2008]4 in which the applicants request for bail pending trial was refused. The applicant argued that his detention without charge until trial was a breach of Art 5 ECHR. The plaintiff had been detained under s41 of the Terrorism Act 2000 on the grounds that the police had reasonable grounds to believe he had been involved in preparatory acts for a terrorist attack. The court examined the requirement of s41 and held that the decision to detain without bail was compatible with Art 5 if those responsible for his arrest could demonstrate reasonable grounds for believing he was involved in terrorist activities. The court stated that the authorities were entitled to deny him bail on this basis. This effectively means that anyone suspected of terrorist activities can be detained without charge and be denied the right to be bailed until sufficient evidence is gathered for charges to be brought. One recent case in which the court overruled the secretary of state was the case of R (on the application of Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2008]5. In this case the plaintiff had confessed to terrorist crimes in the US after been subjected to inhumane and degrading treatment following his arrest on suspicion of involvement in such activities. The applicant knew that the Secretary had paper that would enable him to prove that the confessions made had been false. He applied to the court for a ruling ordering the Secretary of State to release these papers to him. The respondent argued that he did not have a duty to disclose these documents and that the documents would be shown to the applicant before the final hearing. The court held that the Secretary of State was wrong to withhold this information as this was the only evidence which could save the applicant from facing the death penalty. The court stated that the respondent was also wrong in assuming that disclosure would occur before trial as there was no requirement in US law for such disclosure. It was held by the court that the respondent was indirectly responsible for the demise of the applicant as the Secretary of Sate had known from the beginning that the initial arrest of the applicant had been unlawful. By failing to release the documentation the respondent was indirectly endorsing the ongoing detention of the applicant and the treatment of him in custody. The court ordered the release of the documentation accordingly. A further area that has been criticised in relation to human rights and the detention of suspects under anti-terrorism legislation is the use of legislation to detain a suspect on the grounds of possession of material that might suggest their involvement in terrorism. The courts have reached a variety of decisions in these cases. In the case of R v K [2008]6 the respondent alleged that there had been a breach of Art 7 ECHR by the authorities making the assumption that items in his possession was evidence of his involvement in terrorist activities. The respondent stated that such possession was insufficient to prove any kind of involvement. Applying s58 of the Terrorism Act 2000 the court held that the material was sufficient to suggest a possible connection with terrorist activities and the appeal was quashed. By contrast in R v Zafar [2008]7 the respondent relied on the requirement of s57 of the TA 2000, which required the prosecution to show a direct link between the possession and some act of terrorism on the part of the accused. The court stated that in the absence of such evidence the case should be regarded as wrongly decided and accordingly the conviction was quashed. It is obvious from the above that in most instances the fear of terrorist attacks has led the court to conclude that the arrest and detention should be regarded as lawful, and that such detentions and charges are not incompatible with the ECHR. It could be argued that the potential risk that is avoided through these detentions outweighs the rights of the accused to a fair hearing, however, in terms of breaches of human rights issues many of these rights are denied to those suspected of terrorist involvement. It is therefore not always possible to reconcile the demands of anti-terrorist legislation with human rights issues, with the result that on many occasions suspects are deprived of those rights. References Burkitt, I. (2005), ‘Powerful Emotions: Power, Government and Opposition in the War on Terror’, Sociology, 39: 679-95. Burkitt, I. (2005), ‘Powerful Emotions: Power, Government and Opposition in the War on Terror’, Sociology, 39: 679-95. Dean, M. (1997), ‘ Sociology After Society’ , in D. Owen, ed., Sociology After Postmodernism. London: Sage. Furedi, F (2005), ‘ Terrorism and the Politics of Fear’ , in C. Hale, K. Hayward, A. Wahidin and E. Wincup, eds, Criminology. Oxford: Oxford University Press. Garland, D. (1996), ‘ The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’ , British Journal of Criminology, 36: 445-70. Gearty, C. (2002), ‘ Terrorism and Morality’ , European Human Rights Law Review, 4: 377 383. Hudson, B. (2003), Justice in the Risk Society. London: Sage Jenkins, P. (2003), Images of Terror: Fanaticism and the Arms of Mass Destruction. New York: Oxford University Press. Kemshall, H (2006), ‘Crime and Risk’, in P. Taylor-Gooby and J. Zinn, eds, Risk in Social Science. Oxford: Oxford University Press. Lesser, I., Hoffman, B., Arquilla, J., Ronfeldt, D., Zanini, M. and Jenkins, B. M. (1999), Countering the New Terrorism. California: RAND. Morris, N. (2004a), ‘ Muslim Anger at Stop and Search Statistics’ , The Independent, 3 July 2004. Morris, N. (2004b), ‘ The Politics of Fear’ , The Independent, 23 November 2004. Sassen, S. (2002), ‘ Governance Hotspots: Challenges We Must Confront in the Post-September 11 World’ , Theory, Culture and Society, 19: 233-44. Simon, J. (1997), ‘ Governing Through Crime’ , in L. Friedman and G. Fisher, eds, The Crime Conundrum: Issues in Criminal Justice. Boulder: Westview Press. Sontag, S. (2004), ‘ What Have We Done?’ The Guardian, 24 May 2004. Soyonka, W. (2004), Reith Lecture 1: The Changing Mask of Fear, available online at: http://www.bbc.co.uk/radio4/reith2004/lectures.shtml. Steinert, H. (2003), ‘ The Indispensable Metaphor of War: On Populist Politics and the Contradictions of the States Monopoly of Force’ , Theoretical Criminology, 7: 265-91 Welch, M. (2006), ‘Seeking a Safer Society: Americas Anxiety in the War on Terror’, Security Journal, 19: 93-109. Wilson, N. B. (2003), ‘ Bibliographical Essay on Fear’ , The Hedgehog Review, 5: 119. Read More