Introduction
Terrorism is to be considered as an assault on universal human values and it represents activities undertaken against humanity. Terrorist acts pose a violent threat to the civilized communities of all states. Therefore, it is critically important that terrorism must be addressed employing the full range of available legal mechanisms to the extent they are applicable for the purpose. It is usual to devise strategies to counter terrorism by drawing principles and norms from the different branches of international law, as they become applicable to the prevention and punishment of terrorists and their acts. These branches of international law include international human rights law, international humanitarian law, international criminal law on peace and security and divisions of general international law like the law on state responsibility. Based on this concept, the UK has domestically introduced significant anti-terrorism legislation. The prevention of terrorism has been given a higher priority and the new legislation has drawn on new instruments equivalent to the European levels. This paper examines the extent to which the formulation of anti-terrorism strategies conforms with the human rights standards. The comparison will be done with the human rights standards, as they exist in the laws of the United Kingdom and the international human rights instruments which apply to the United Kingdom. Certain human rights under both domestic as well as international laws may get restricted to some extent, to prevent terrorism and make the persons involved in the terrorist actions subject to prosecution under applicable anti-terrorism legislation. Even though this fact has been recognized by both the domestic and international human rights laws, they prescribe that some of the fundamental rights should not be restricted and the restrictions in respect of certain others should be proportionate to the threat of terrorism involved. This implies that it is the responsibility of the states to minimize the restrictions of rights involved in the anti-terrorist law. It is also mandated on the states that they should demonstrate that they have taken the measures only to the extent necessary to prevent the incidence of terrorist acts and to punish the terrorists. This paper argues that the government of the United Kingdom and Parliament has not taken the burden of showing that there are no other ways to deal with terrorism, which would involve less serious restrictions on the rights. This paper further argues that several of the legal measures undertaken by the UK government have been adopted for exceptionally unnecessary reasons. The measures involve significant restrictions on the rights of foreigners residing in the country without any valid reason for imposing such restrictions, in the direction of reducing the terrorist threat. There have been criticisms raised by the courts in the United Kingdom, about the need for adopting such strategies and the courts are skeptical about the ability of the government to sustain the current anti-terrorism strategies given their non-conformity with human rights in some cases.
Domestic and International Terrorism
As a fundamental step towards studying the impact of the anti-terrorism legislation on human rights, it is necessary to explore the distinction between domestic and international terrorism. International law seeks to regulate international terrorism only, even though the laws are made applicable to both domestic and international terrorism. However, it has been found difficult to draw precisely the boundaries between both types of terrorism. In addition, some of the terrorist attacks take the dimensions both domestic and international nature, which makes it difficult to draw the character of such acts. One of the instances is domestic terrorism financed through foreign funds.
Factors affecting International Terrorism
There are two important factors, which contribute to the proliferation of international terrorism. First is the process of globalization, which results in the erosion of powers within their own territory. The process of globalization has the effect of undermining the dominant status of the states as subjects of international law. Because of globalization, international financial institutions and terrorist groups emerge as the dominant actors at the national level. The second factor is the desire of the people to possess multiple identities. There is a tendency among people to hold multiple identities or membership rights in a community. This tendency eliminates the normative way of providing privilege to one identity or membership in preference to another. Advancement in information and communication technology in the form of the internet and email facilitate the holding of multiple identities easily. In view of lack of clarity in the distinction between domestic and international terrorism, and facilitated by the processes of globalization and multiple identities, terrorist acts assume the dimensions of international terrorism in almost all cases and this makes such acts of terrorism to be subjected to international law. Therefore, the strategies of the UK to combat any terrorism whether domestic or international should be analyzed as to its impact on human rights.
Definition of Terrorism under UK Terrorism Legislations
The definition of terrorism as set out in the UK Terrorism Act, 2000 forms the basis for all counter-terrorism laws of the country. The definition under the Act of 2000 includes all acts of serious violence against people or damage to property, which are designed to influence the government of the UK, other governments and international organizations like the United Nations. The purpose of such acts to fall within the definition of terrorism is to intimidate the public or to advance ‘a political, religious or ideological cause’. The definition received severe criticism even at the time of passing the Act, as being too wide and vague and does not meet the requirements with respect to the clarity needed for the applications of criminal law. This definition has the shortcoming of (i) widening of offenses under counter-terrorism laws, (ii) resulting in the application of too much discretion on the application of the definition, (iii) leaving space for political bias enabling the prosecution of people active in legitimate social or political movements. Such acts may lead to a violation of human rights.
Surveillance
One of the important elements in the counter-terrorism strategy of the UK government is the power to institute surveillance of the suspected individuals by the intelligence and security services. While it may be necessary to use surveillance as a preferred strategy over the other forms of interference with human rights, there is the need to put the authority of surveillance under strict oversight from the human rights perspective. However, in the UK the oversight of surveillance is the weakest of its form. The authority to approve interceptions lies with the Home Secretary and the authority of access to ‘traffic data’ is given to senior police officers, and not with any judges in both cases. There are no statistics available on the number of surveillance or interception of traffic data. This implies that there is no record of any instances, where there is a violation of human rights in the form of surveillance or interception of traffic data as the authority for ordering either is not within the jurisdiction of any legal authority.
Control Orders and Preventive Detention
The government authorities have been trying to find measures for restricting the freedom of individuals who in their opinion are greater security risks but who cannot either be prosecuted or deported in the case of foreign nationals. The Anti-terrorism, Crime and Security Act, 2001 introduced a provision for indefinite detention of foreign terrorist suspects without trial, which was condemned by the House of Lords in December 2004, as incompatible with the European Convention was only short-lived. The subsequent attempt to give the police the powers for holding suspects up to 90 days without charge can be seen as the root attempt to introduce targeted preventive detention. Following the judgment, control orders in the Prevention of Terrorism Act, 2005 were introduced to ensure the detention of the suspects. These control orders are so restrictive that they have deprived the liberty of suspects, nationals and non-nationals in the same way, which amounts to hitting at the human rights of such individuals. Curfews of up to 18 hours on the detainees restrict their association with groups and individuals, and restrictions on the movement and access to goods and services are some of the consequences of the passing of the control orders. In addition, there were restrictions on the finances and acts, which affect the families of the suspects also. There was a quashing of the control orders on six detainees by Mr. Justice Sullivan. The judge, in this case, remarked such measures amount to draconian restrictions on the liberties of the detainees, which fell short of just house arrest of the people involved. These people had been deprived of their liberty, which is in contravention of the provisions of Article 5 of the European Convention.
Control Orders and the use of Immigration Powers
Under the Prevention of Terrorism Act, 2005 there were 18 control orders issued in total. Out of these 9 orders remained in force at the end of the year, and 9 individuals got their control orders revoked. These are the foreign nationals detained under Anti-Terrorism, Crime, and Security Act. However, after the control orders were revoked in respect of these people, they were continued to be detained under Section 3 of the Immigration Act, 1971. All of these people were served with the notice of deportation on 11th August 2005 specifying the intention to deport them. It is to be noted that individuals can be detained under the Immigration Act, 1971, only in circumstances of pending deportation. It is the stand of the government that the deportation could not be executed pending entering into memoranda of understanding with the respective governments not to execute, torture or subject the suspects in their countries to inhuman treatments when they are returned to their countries. Though agreements have been entered with some of the countries, still there are agreements pending with other countries. However, no value can be attributed to such agreements with a country, which has already violated international agreements on the treatment of prisoners.
Arrests and Pre-trial Detention
Under Section 41 of the 2000 Act, the police have been provided with the authority to arrest someone who is suspected to be a terrorist. However, the definition of terrorism and the related offenses as laid down in the Act are so vague; it virtually gives the police wide power of arrest. Lord Lloyd found the provisions as incompatible with Article 5 of the European Convention and he thought that arrests should be made only on the basis of commission of specific crimes be such acts are imminent or actual. Lord Lloyd and Lord Carlile following him have insisted that lower-level acts, which are preparatory to terrorism, should be brought under criminal offenses. Accordingly, the Terrorism Act, 2006 brought a new provision, which brought arrests under the criminal justice system. However, the definition of offense has been given a wider connotation that there is the likelihood of creating dangers of abuse. The time that needs to bring the charged suspects to the court makes the arrest virtually preventive detention.
Stop and Search Powers
Section 44 of Terrorism Act 2000 has given powers to the police to stop and search any individual whom, they reasonably suspect to be a terrorist. The stop and search can be undertaken to look for any possible evidence. Under the same section, the police are given the power to designate any place where they can stop and search without a need for reasonable suspicion. There is no consistency in using these powers. These powers have been not very helpful in catching terrorists. According to the Association of Chief Police Officers, the purpose of exercising the power of stop and search is to disrupt terrorist reconnaissance of potential targets. This statement suggests that these acts are not intelligence-led to catch perpetrators of terrorist attacks, but is an instrument used bluntly and haphazardly used disproportionately against individuals from minority communities. Even though, there are no records available to show the number of stops and searches by religion, the available figures on race indicate that the stop and searches made by the police and other public officials provide enough evidence to prove that these officials have been involved in ‘ethnic profiling’. Ethnic profiling implies the use of racial, ethnic or religious stereotypes to make law enforcement decisions to stop and search or check the documents and other such acts. According to the Home office statistics, during the year 2004-05, the black people who were subjected to stop and search under the Terrorism Act, 2000 were 2.5 times more than the whites who were stopped. Asian people were 2.2 times more likely and other people were 3.8 times more likely than the white people who were subjected to stop and searches under the Act. The obvious conclusion here is that it is those people who appear to be Muslims are more likely to be stopped and searched.
Use of Lethal Force
Immediately after the failed bomb attempts in July 2005, the Association of Chief Police Officers (ACPO) drew up a new ‘shoot-to-kill’ policy without reference to the ministers or Home Office. This policy was drafted to deal with the suicide bombers who might be a potential danger to the ordinary citizens at the point of their arrest unless such terrorists are not incapacitated at once. Using this power, the London police shot and killed a Brazilian electrician suspecting him to be a potential terrorist. This power given to the police was considered an imminent danger to the Muslims in Britain by the Muslim Scholar Professor Haleh Afshar. Such acts using lethal force raise serious concerns about the unwillingness of the authorities to investigate fatal incidents involving the police or security forces. It also raises concerns on the accountability of the police, which is already at low ebb in respect of fatal shooting incidents. There are also wide criticisms on the actions of the police in the withholding of information during the conduct of any inquiry and the reluctance on the part of the police to bring the standards for the use of lethal force up to the level of international standards. During the last decade, no police officers have been convicted in respect of 31 such fatal shootings that occurred. This was due to the pressure exerted by the police officers on the authorities not to further any investigations in such cases.