BIRW Submission to ICJ Eminent Jurists Panel  on Terrorism,Counter-Terrorism and Human    Rights

  march 2006

terrorism, counter-terrorism and human rights:

lessons from northern ireland

LEGAL AND POLICY ISSUES

1.         INTRODUCTION

1.1       British Irish Rights Watch is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990.  Our services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community affiliations.  We take no position on the eventual constitutional outcome of the conflict.  We have been working on these issues since 1990.

1.2       As our remit only extends to the situation in Northern Ireland, we cannot comment on the threat posed by international terrorism or domestic terrorism not related to Northern Ireland.  However, the experience of counter-terrorism measures in Northern Ireland is, we submit, highly relevant to the debate over the need for specific, permanent, counter-terrorism laws and to the definition of terrorism.

1.3       We believe that there are also important lessons to be learnt from Northern Ireland in relation to the so-called war on terrorism.

1.4       First, terrorism can rarely be defeated by repression, whether military or otherwise.  To attempt to do so is to descend to the level of the terrorist, which is never acceptable in a democratic society.  In such a society, higher standards are rightly demanded of governments than those that can be expected of terrorists.  Once that principle is abandoned, the terrorists will have won, because they will have destroyed democracy. 

1.5       Secondly, terrorism is not usually mindless.  Attacks may be unannounced; their consequences may be unspeakable; they may be morally indefensible; we may not understand them; and we may disagree with them profoundly; but they are usually done for a reason, however misguided.  Very often that reason has its foundations in ignorance, poverty, or injustice, or some combination of the three.  Those who turn to terrorism may be fanatics or bigots, but it is important for the targets of terrorism to be objective and honest when addressing the inevitable cry of the victims, “Why us?”

1.6       Thirdly, repressive laws do not prevent terrorism or eradicate it.  If we treat terrorists differently from other criminals because of the motive for their crimes, such as murder, hijacking and so on, we only create miscarriages of justice and martyrs to the cause.

1.7       Fourthly, although governments often seek to portray themselves as neutral in combating terrorism, they are never so in fact.  Governments’ role is to defend the state and maintain the status quo – this is far from being a neutral role.  In our experience in Northern Ireland, successive governments and the agents for whose actions they are responsible (principally the civil service, the army, the police and the intelligence service) have not only pursued their own agenda, but in some cases have actively colluded with paramilitaries in that pursuit.  Far from hastening the end of the conflict, such policies have deepened and prolonged it.

1.8       Northern Ireland experience suggests that only three mechanisms can effectively combat terrorism.  The first is preventative, and therefore preferable: the collection of accurate intelligence and the proper use of that intelligence to prevent attacks.  The second is deterrent: the effective detection of crime.  The third is the most valuable of all: political resolution.

1.19     So far as intelligence is concerned, it has only two proper aims: the prevention and detection of crime.  Most unfortunately, in Northern Ireland it is becoming apparent that the gathering of intelligence for its own sake has been prevalent throughout the conflict.  The Northern Ireland population has been subjected to a very high level of sophisticated surveillance.  Paramilitary groups have been deeply infiltrated.  However, instead of using the information thus collected to prevent terrorist attacks or arrest perpetrators, the intelligence services (MI5, army intelligence and police Special Branch) have withheld information from detectives and others in order to protect sources.  Many killings have gone ahead and/or remained unpunished as a result.  Furthermore, the different intelligence services have treated each other with hostility and competed among themselves.  This is not an intelligent approach to intelligence. 

1.10     All of this has had a disastrous effect on detection.  Not only have terrorist attacks which could have been prevented been allowed to go ahead, but the perpetrators have gone free, trials have collapsed, and in some cases evidence has been distorted or even manufactured in the bid to obtain a conviction.  The law has been brought into disrepute and people have lost faith not only in the administration of justice but in the police, the army, the intelligence service, politicians and governments.  Faith has also been lost in the rule of law and governance itself, both of them bedrocks of a democratic society.

1.11     Ultimately, responding to terrorism by sharpening up intelligence and detection procedures will be useless unless a political solution can be found to the underlying causes of terrorism.  One of the many lies told during the Northern Ireland conflict was Prime Minister Margaret Thatcher’s declaration that, “We don’t talk to terrorists.”  In fact, and quite rightly, attempts have been made throughout the conflict to negotiate with paramilitaries on both sides in an attempt to bring the conflict to an end.  When it comes to the spate of horrific attacks which proceeded, encompassed, and followed 9/11, we think it unhelpful to talk in general terms about “world terrorism” which is “threatening our freedom/

            democracy”, as politicians do so often.  Equally, it is unhelpful to characterise the perpetrators as “secretive” and able to “strike at will”.  Mythologizing and generalising “the enemy” in this way not only does their job for them, by making people more scared, or “terrorised”, but it makes it sound as if those responsible for 9/11 etc cannot even be identified, never mind negotiated with.  It is a mistake, we think, just because terrorists such as suicide bombers use “non-negotiable” means to conclude that those pulling their strings are beyond negotiation, or beyond the reach of concerted political action by, for example, the United Nations.   

1.12     The terrible events of 9/11, and more recently and closer to home 7/7, while squarely the responsibility of those who carried them out, also appear to many to have involved a massive failure of intelligence.  We owe it to the victims to learn not only the lessons those events but those that can be learned from attempts to combat terrorism around the world.  Northern Ireland, we suggest, is as good a place to start as any and is particularly relevant for the United Kingdom in shaping its response to domestic and international terrorism.  In our submission, that response should not consist in passing ever more draconian counter-terrorism laws.  Instead, we should address the underlying causes of terrorism while strengthening human rights protections so that there is less incentive for terrorism against anyone in any part of the United Kingdom or against its representatives abroad.

1.13     In this submission to the International Commission of Jurists’ Eminent Jurists Panel considering terrorism, counter-terrorism, and human rights, we attempt to address the lessons from the conflict in Northern Ireland for the legal and policy issues identified by the Panel.

2.         Should terrorism be fought by military means or should it be tackled through the criminal justice system?

2.1       In Northern Ireland, the government chose to combat terrorism by using both the army and criminal justice system.  This meant that the government was able, on the one hand, to engage in an undeclared war, while on the other, criminalising paramilitaries.  State action was always portrayed as legitimate, while paramilitary action was always illegitimate.

2.2       The conflict in Northern Ireland can best be described as the result of an imperfect process of de-colonialisation.  Prior to being conquered by England, Ireland was not a unified country, but was made up of a number of small kingdoms and fiefdoms.  In 1801 Ireland became part of Britain under the Act of Union, and remained so until, following the failed Easter Rising of 1916, civil war in Ireland and a war between Britain and Ireland, in 1920/21 Ireland was partitioned.  Six of Ireland’s north-eastern counties remained within the United Kingdom, and became known as Northern Ireland, while the other 26 counties became the independent Republic of Ireland.  Northern Ireland became a Protestant state, governed by a devolved parliament at Stormont, in which Catholics were discriminated against.  On 1 February 1967 the Northern Ireland Civil Rights Association (NICRA) was founded.  Its demands mapped out at least some of the terrain over which the conflict was to be fought for the next thirty or more years: a universal franchise[1]; an end to electoral gerrymandering[2]; the fair allocation of public housing; an end to discrimination in local government employment; the repeal of the Special Powers Act[3]; and the disbanding of the exclusively Protestant reserve police force, the “B Specials”.  Catholics were no longer prepared to take lying down discriminatory laws and practices set down by “a Protestant Parliament and a Protestant state”[4]. It was the violent reaction of extremist Orangemen[5], including off-duty members of the B Specials, to NICRA’s peaceful protest marches and the failure of the Royal Ulster Constabulary (RUC, the police) to defend the protesters which laid down the battle lines for the conflict to come.

2.3       Although articulated in religious terms, the conflict in Northern Ireland was not really about religion but about territory.  At its heart lay the question of whether Northern Ireland should remain part of the United Kingdom or become part of a united Ireland.  The conflict spawned two types of paramilitaries: the republicans, who saw themselves as freedom fighters in the cause of self-determination, and the loyalists, who saw themselves as defending the United Kingdom.  Thus republicans were anti-state, while loyalists were pro-state, with both groupings adopting terrorist tactics – murders, bombings, hijacking, etc – in pursuit of their aims.

2.4       The conflict also needs to be understood as one in which two of the three main protagonists (the third being the United Kingdom) regard themselves as minorities.  The Protestant/unionist/loyalist grouping is in the majority in Northern Ireland but is in a minority in the island of Ireland as a whole - and, indeed, within the United Kingdom - whereas the Catholic/

nationalist/republican grouping is in the minority in Northern Ireland but can count itself part of the majority of Ireland.  At present[6], Catholics make up around 44% of the population of Northern Ireland, while Protestants make up about 19% of the population of Ireland as a whole.  Considering that the population of Northern Ireland is only 1.7 million, while that of all Ireland is 5.6 million, these are minorities to be reckoned with.  This simple set of proportions had profound consequences for the conflict but also for the peace process, and it helps to explain why human rights occupy a central position in that process.

2.5       Troops were first deployed in Northern Ireland in August 1969, but the devolved Protestant Stormont government was left in place.  It was not until 1972, when British soldiers killed and injured at least 26 unarmed demonstrators[7] on what became known as Bloody Sunday, that direct rule from London was re-imposed on Northern Ireland.  Initially, the British army was deployed in Northern Ireland, but soon a locally-recruited regiment, the Ulster Defence Regiment (UDR) was set up to replace the B Specials.  At first the army and the RUC worked jointly, although there was a tendency for the RUC to police Protestant areas while the UDR controlled Catholic areas.  In 1976, police primacy was introduced, whereby, in theory at least, the army acted in support of the civilian authorities.

2.6       As the brief human rights history of the conflict included at Annex A to this submission shows, the government used a mixture of tactics during the conflict in its efforts to suppress terrorism, these included (in chronological order):

·         internment without trial

·         ill-treatment (the “five techniques”: hooding, wall-standing, white noise, sleep deprivation, and food/drink deprivation) and mock executions of detainees

·         military engagement with paramilitaries, rioters and demonstrators

·         juryless “Diplock” courts which applied lower standards for the admission of confession evidence than ordinary criminal courts

·         exclusion orders, which imposed internal exile on individuals from Northern Ireland, who were not allowed to travel to Great Britain, and banned non-UK nationals from the UK

·         seven-day detention without charge or production before a court

·         denial of access to legal advice

·         physical and mental ill-treatment in custody

·         the introduction of plastic bullets for the purposes of riot control

·         covert assassinations by the army of suspected paramilitaries

·         the use of “supergrass” evidence to convict large numbers of alleged paramilitaries in mass trials

·         a shoot-to-kill policy by the RUC

·         infiltration of paramilitary groups by the intelligence services

·         collusion with paramilitaries, including the murder of prominent defence lawyer Patrick Finucane, which had a chilling effect on the legal profession

·         the abrogation of the right to remain silent under police questioning and the drawing of adverse inferences from a defendant’s failure to testify in his or her own defence at trial

·         evidence of membership of a proscribed organisation on the say-so of a police officer.

2.7       As Annex A shows, these measures were accompanied by a number of

            Acts of Parliament, described as being of a “temporary” or “emergency” nature, but which in fact had permanent effect.

2.8       Throughout the conflict, there was cross-party consensus over policy in Northern Ireland, which was implemented by successive governments without any real opposition and precious little debate.  The civil service – the mainly Protestant Northern Ireland Office[8] and the deeply conservative Ministry of Defence – and the intelligence services – MI5, MI6, army intelligence and RUC Special Branch – provided continuity in relation to policy, and were in reality its true architects.  Politicians and policy makers alike saw the republican IRA as the greatest threat to the security of the state and the IRA were constantly blamed for the conflict, whereas in fact their resurgence, particularly after Bloody Sunday, was a product of the conflict.  A number of factors demonstrate the government’s focus on the IRA. 

2.9       First, of the 365 deaths for which the army (301 deaths) and the RUC (50) were responsible between 1996 and 2003, 136 were of republican paramilitaries and another 162 were of civilian Catholics.  The security forces claimed that many of the Catholic civilians they killed were suspected paramilitaries.  Thus 82% of those killed by the security forces were Catholics.[9]  The RUC and the UDR were themselves overwhelmingly drawn from the Protestant community.

2.10     Secondly, in 1973 the government introduced the power to proscribe paramilitary organisations.  The two republican paramilitary groups then in operation, the IRA and INLA, were immediately banned, as were the loyalist Ulster Freedom Fighters (the nom de guerre of the Ulster Defence Association), and the Ulster Volunteer Force.  However, the Ulster Defence Association remained legal until 10^th August 1992.  Thus, although the UDA and the UFF were synonymous, the UDA, which at its height had over 30,000 members, enjoyed all the privileges of a legitimate organisation until late in the conflict.

2.11     On 19 October 1988 Douglas Hurd, then British Home Secretary, announced restrictions under the terms of the 1981 Broadcasting Act. These prevented broadcasters from using direct statements by members of specific proscribed organisations and also applied to individuals who were canvassing support for the named organisations. To try to get around these measures broadcasters began to dub an actor's voice to speak the words of paramilitary representatives whilst showing appropriate film footage.  The broadcasting ban remained in place until 1994.  For all but the final two years of the broadcasting ban, the UDA remained unaffected, while the voice of Sinn Féin, the political wing of the IRA, was silenced.

2.12     Another policy which had a profound effect on the conflict was that of collusion.  The intelligence services – MI5, army intelligence and RUC Special Branch – penetrated informers deep inside all the paramilitary groups. 

2.13     The Force Research Unit (FRU), part of British army intelligence, was formed in 1982.  Its role was to infiltrate the paramilitary groups in Northern Ireland, theoretically in order to frustrate their activities.  However, FRU agents, once embedded within those groups, inevitably became involved in their illegal activities.  It was not always possible to prevent a murder or a bombing from going ahead, because to do so would expose the identity of a FRU agent.  FRU agents, and their army handlers, became involved in planning and inciting paramilitary activities and helped them to obtain weapons and improve their techniques and intelligence-gathering.  It got to the point where FRU’s quest for intelligence took priority over any mission to save lives.  One of FRU’s most precious assets was the agent codenamed Stakeknife, since unmasked as Freddie Scappaticci, although he denies the allegations against him.  He became involved in the IRA’s internal disciplinary squad, known as “the nutting squad” because of its propensity for shooting its victims in the head.  In theory, Stakeknife’s job was to identify and deal with, often by killing them, members of the IRA who had turned informer.  The nutting squad often extorted confessions from alleged informers, sometimes using torture.  Most of these confessions were made in the knowledge that certain death would follow.  By their nature, such confessions were unreliable.  Suspected informers naturally told their interrogators what they wanted to hear.  It is believed that on occasion the interrogators actually scripted the confessions.  Stakeknife worked for FRU for many years.  Implicitly trusted within the IRA, he was privy to many of its innermost secrets.  In order to protect his cover, some loyal IRA members were falsely labelled as informers and killed.  FRU also had an agent inside the UDA, Brian Nelson, who became the UDA’s intelligence officer.  He played a role in the murder of Belfast lawyer Patrick Finucane in 1989, and in many other murders besides.

2.14     RUC Special Branch also had agents within paramilitary groups.  In particular, they penetrated the loyalist UVF and later the Loyalist Volunteer Force, a dissident loyalist group.  A number of agents such as Robin Jackson, Mark Haddock and Billy Wright are said to have been responsible for serial murders, often of other loyalists as well as Catholics, while working under the protection and with the active assistance of the RUC.

2.15     The role of MI5 has received least attention, but it is seen as being the senior intelligence service.  It has been present in Northern Ireland throughout the conflict and has participated in Tasking Co-ordination Groups, in theory chaired by the RUC, which have co-ordinated the counter-terrorism work of all the security forces.  MI5 also worked in close liaison with the FRU, now known as the Joint Support Group.  It is known that some agents were working directly for MI5.  Worryingly, in 2007 MI5 is due to take over responsibility for counter-terrorism in Northern Ireland.

2.16     Thus the government has employed a mixture of military options, distortions of the criminal justice system, and the adoption of policies such as collusion, to combat terrorism in Northern Ireland.  The result has been abuse of lethal force, the use of torture and ill-treatment, miscarriages of justice, and the destruction of public confidence in the rule of law, the courts, the police, the army, the intelligence services, governments, and even governance itself.

2.17     In relation to the question posed by the Panel, we believe the answer must be that terrorism should only be fought by military means if there is a genuine state of emergency threatening the life of the nation.  Otherwise the criminal justice system should be used.

2.18     We would argue that no true state of emergency ever existed in Northern Ireland or elsewhere in the UK, even when the Northern Ireland conflict was at its height.  Throughout “the Troubles” the rule of law held sway, democratic institutions remained in place, and the majority of people were able to go about their daily business unhindered.  In pointing this out, we do not seek to minimise the terrible consequences of the conflict, especially for the victims of violence, but we do maintain that the level of violence and disruption was such that it did not justify the declaration of a state of emergency.  Indeed, the UK government appears to have accepted that this was the case.  Having declared a state of emergency in 1976, it was lifted in 1984 but was re-imposed in 1988, not in response to any act of terrorism, but in order to enable the UK to derogate from its international obligations following a ruling by the European Court of Human Rights[10].  States of emergency and derogations are intended to be brief in duration and to be lifted at the earliest opportunity.  Whatever view is taken of the past, the situation in Northern Ireland since the autumn of 1994 when paramilitary ceasefires were first declared cannot be described as one of emergency.

2.19     While strictly speaking these matters fall outside our remit, nor do we consider that international terrorism has caused a state of emergency threatening the life of the United Kingdom.  Horrific though they were, the events of 9/11 and other attacks elsewhere in the world did not threaten the UK’s security in any sense.  The attacks in London on 7^th July 2005, while equally terrible, were domestic terrorism, in the sense that they were carried out by UK nationals and residents, although they may have been instigated by international considerations, in particular the part that the UK has played in the invasion of Iraq and in the ill-treatment and abuse of Iraqi prisoners.  The UK is a fully-functioning democracy, which may indeed be under some level of threat, but is certainly not in a state of emergency.  If anything, UK policy in relation to the Middle East and its political and military support for the USA may itself be a threat to domestic security, in that it makes the UK a target for international terrorism.

2.20     In determining whether a military response to a terrorist threat is appropriate, a number of considerations arise from the human rights perspective.  First, reliable intelligence is vital in order that the actual level of threat can be assessed.  Secondly, any military response should be lawful and proportionate to the threat posed.  Thirdly, as we have already said, military force should only be used where there is a genuine emergency threatening the life of the nation.  Fourthly, the use of military means must be weighed against the likely retaliation it may provoke.  Fifthly, every precaution should be taken to minimise the risk of military, and particularly civilian, casualties on both sides.  Sixthly, the lowest possible level of force, especially lethal force, should be employed.  Seventhly, weapons designed to cause intolerable pain or suffering, such as white phosphorous, should not be used.  Eighthly, military personnel should be provided with all necessary protective equipment and should not be ordered to use unsafe or untested drugs as a “protective” measure.  Lastly, but by no means least, the Geneva Conventions and the humanitarian law that applies to military action should be respected at all times.

2.21     Short of a genuine state of emergency threatening the life of the nation, the criminal justice should be used to combat terrorism, and we have more to say on this point at section 7 below.

3.         Do we need to have intrusive surveillance of public places and transports, data on travel, phone calls and Internet use in order to protect people from terrorism?

3.1       Reluctantly, our answer to this question is: yes.  States have a right to defend themselves against terrorism, and, indeed, a duty towards their citizens and residents to do so.  Surveillance and the interception of communications are a form of intelligence-gathering, which is essential to combat terrorism, whether it is perpetrated by religious fundamentalists or extremist animal rights campaigners.  Modern technology is available to terrorists and it is unrealistic to deprive law enforcement agencies of those same technologies.

3.2       However, the use of such techniques can only be justified if they are used for the only legitimate purposes served by intelligence-gathering, which are the prevention and detection of crime.  They should not be used to build databases on people who are not involved in terrorism, and records engendered in the course of combating terrorism that involve innocent persons should be destroyed at the earliest opportunity. 

3.3       Such techniques should be employed in such a way as to respect as far as possible human dignity, decency and the right to privacy.  To take a bad example from Northern Ireland, strip searching in prisons has been used, and is still used, in inappropriate situations, such as before and after legal visits or “closed” visits, where the prisoner has had no contact with another person.  It has also been used to humiliate male and female prisoners.  Body searches and searches of baggage at airports and elsewhere should be conducted with due regard to the rights of the person being searched to physical integrity and privacy.

3.4       Particular care should be taken not to stereotype particular people or communities as “terrorist suspects”.  Not only is this insulting to the vast majority of law-abiding people in the world, but it is counter-productive, in that terrorists are likely to avoid using those who fit such stereotypes, and communities who are stigmatised may be more likely to shield suspected terrorists rather than co-operate with the police.

3.5       Techniques of mass observation and searching should be kept under review by independent monitors to ensure that they are proportionate and human rights compliant.

3.6       Where surveillance or interception is to be used, a case must be made for its use; a proper authorization procedure must be put in place (which should include refusal of authorization); and people who suspect they have been been wrongly made the subject of such techniques should have access to a meaningful avenue for challenging their use.  In the United Kingdom, such safeguards are inadequate.  While the interception of communications etc is governed by the Regulation of Investigatory Powers Act 2000 (RIPA), a person who believes, for example, that his or her telephone is being tapped without cause, can make a complaint, but the only outcome of the complaint is that s/he will be told that the authorities cannot confirm or deny that the telephone is being tapped, but can assure the complainant that, if it is being tapped, then the tapping is in compliance with the law.  There is no mechanism for having the interception stopped.

3.7       Recently in Northern Ireland it emerged that a lawyer was suspected of involvement in domestic terrorism.  It would appear that at least one interview room used for private consultations between lawyers and their clients had been bugged for a number of months, with the possibility that every lawyer who used that consultation room had been bugged.  Not only did this action on the part of the police violate Principle 8 of the United Nations Basic Principles on the Role of Lawyers, which forbids interception of lawyers’ communications with their clients, but it also violated the Police Service of Northern Ireland’s own code of conduct on the relationship between the police and lawyers.  If information gathered in the course of such interception was used by the prosecution, then the defendant’s right to a fair trial may have been violated.

4.         How can we criminalize incitement to violence without eroding freedom of speech, the press and religion?

4.1       We do not see that incitement to violence invokes freedom of speech or of the press.  The state has a duty to protect the right to life, and incitement to violence is a violation of the right to life.  No-one has the right to incite violence, nor a right to report it in such a way as to incite violence.

4.2       Freedom of religion is altogether more difficult.  If a person genuinely believes that his or her religion requires him or her to incite violence against others, that person has a right to hold that belief, however much others may disagree with it or disapprove of it.  It is not possible to dictate what others should believe, and any attempt to do so is bound to be oppressive.

4.3       However, since incitement to violence is a violation of the right to life, the state has the right to legislate against the public utterance of such incitement, including the right to make it a criminal offence.  Any law criminalizing incitement to violence must be grounded in the right to life.  It should not be couched in terms of the religious belief of the alleged perpetrator, and it must be used and applied even-handedly.

4.4       In the United Kingdom, other measures could be considered which would lessen the impact of criminalizing incitement to violence where the motivation for doing so was religious.  In England, the Church of England could be disestablished and the monarch could cease to be the head of the established church.  The UK could also abolish the blasphemy laws, which protect only Christianity.   The Education Act of 1944 provides for a daily act of collective worship in schools and the 1988 Education Reform Act provides that the collective worship should be "wholly, or mainly, of a broadly Christian character".  In practice, many schools are ignoring these provisions, and removing them would be a further step in removing religion, and in particular Christianity, from the public domain.  The policy of supporting single faith schools could also be re-examined.  Consideration could also be given to banning proselytizing religion, although this would doubtless be highly controversial.

5.         How to increase security without discriminating, alienating and marginalizing minority communities?

5.1       If the July 2005 attacks taught us anything in the United Kingdom, it is that terrorism is no respecter of persons.  Members of minority communities are just as likely to be victims of indiscriminate terrorist attacks such as suicide bombings as members of the majority.  Minorities and marginalized people and communities need protection just like everyone else in society.

5.2       The danger of discriminating and/or alienating such people lies in stereotyping those suspected of terrorism.  During the IRA bombing campaign in Britain, Irish communities became suspect communities.  Some police forces actively encouraged people to spy on Irish people and report any “suspicious” behaviour, like renting a room or a garage, to the police.

5.3       Unfortunately, the United Kingdom, though far more tolerant than many other countries, remains a racist society.  Only an all-out offensive against racism will eradicate discrimination against ethnic and/or religious minorities.  Increasing security measures cannot be achieved in a non-discriminatory way in isolation.  Those responsible for security measures, however, can and must take on board the dangers of increasing discrimination, alienation, and marginalization and do all in their power to work with minority communities, placing the emphasis on our common interest in living in safety and security.

5.4       In Northern Ireland, in particular, much more needs to be done to eradicate sectarianism, as well as racism, to which it is inextricably linked.  One of the many myths that obscure the reality of what is happening in Northern Ireland is that Catholics and Protestants are equally sectarian.  For example, many politicians and large sections of the media portrayed the situation which arose at the Holy Cross school, which was a Catholic primary school on the edge of loyalist enclave in west Belfast, as a “dispute” between two sides, when in fact loyalists were trying to intimidate Catholics and were terrorising young children in the process, in a bid to expand their territory.  The PSNI also portrayed itself as “piggy in the middle”, a smokescreen which effectively stemmed any objective examination of how effective its policing was.  If all sectarian incidents were recorded and analysed, a true picture would emerge of who are the perpetrators and who are the victims.  It would also enable the PSNI to determine whether those engaged in sectarianism are also engaged in racism.  Once in possession of this intelligence, the PSNI would be in a better position than it is now to combat sectarianism, and probably racism also.

5.5       In the UK generally, great care needs to be taken to show that increased security measures do not single out members of minorities.  Care must also be taken in the context of the war against Iraq that abuse of prisoners is acknowledged, deplored, punished and eliminated. The United Kingdom should play no part in the USA’s policy of extraordinary rendition; it should not seek to rely on intelligence obtained under torture; it should not refoule refugees to countries where they may be tortured or killed; nor enter into meaningless memoranda of understanding with countries that regularly practice torture.  Quite apart from the significance of such actions in relation to the absolute prohibition against torture, they send a message to minorities that they are not safe and secure in this country, which undermines efforts to secure everyone’s safety and security.

6.         Does human rights law prevent effective international legal cooperation in fighting terrorism?

6.1       We can see no reason why it should.  It depends, perhaps, on what is meant by “fighting” terrorism.  If, as the intelligence services in the UK and USA seem to think, it means torturing people in order to obtain unreliable “intelligence”, then human rights law certainly should act as a deterrent.  Indeed, very active litigation is being pursued in the English courts concerning the extension of the protections afforded by the European Convention on Human Rights to territories outside Europe over which a Member State has effective control; the conduct of effective investigations into deaths in British custody in third countries; and the prevention of torture in British custody abroad.

6.2       Politicians should think hard before they blame human rights law for hampering “the war on terror”.  Groups such as Al Qaeda are fundamentally opposed to liberal, multi-cultural democracies.  As soon as we abandon our commitment to human rights standards, we begin to assist such groups in the very task we are seeking to oppose, by damaging the very fabric of our society.  It is not a problem that we cannot return some allegedly suspected terrorists to their home countries because they face torture or death, it is a badge of our humanity and decency.

6.3       Far from hampering international co-operation in combating terrorism, human rights law should provide a common framework for ensuring that international legal co-operation against terrorism is human rights compliant.

7.         Should suspected terrorists be tried by special, even military, courts and should trial procedures be relaxed?

7.1       Our response to this question is: absolutely not.  Such measures were tried in Northern Ireland and produced miscarriages of justice and martyrs to the cause.

7.2       Terrorism is not an act, it is a description for the motivation of a person carrying out any of a range of acts, many of which, absent the terrorist motive, are perfectly harmless and legal.  To give an example from Northern Ireland, a woman who buys a pair of rubber gloves to protect her hands while doing the washing up is behaving perfectly legally.  If, on the other hand, she buys them to protect her hands while making a bomb, she commits an offence.  The problem for the police and the courts, is how to prove that the mere act of purchasing the gloves was illegal. 

7.3       Drawing up special laws and procedures for dealing with terrorists is unnecessary.  In the first place, there is no evidence that doing so prevents or deters terrorism.  3,307 people died between 1966 and 2003 as a result of the Northern Ireland conflict, 90% of them as a result of terrorism[11], and most of them in Northern Ireland itself.  In a population of around 1.6 million, that is a toll that has left no-one unscathed.  Damage to property, especially in London and Belfast, has cost billions of pounds[12].  As a matter of cold fact, the existing counter-terrorism laws have not been able to prevent terrorism. 

7.4       To the best of our knowledge, not one of those actually convicted under the counter-terrorism laws in Northern Ireland has been so because of any provision in those laws, with the exception of membership of a proscribed organisation.  In other words, those convicted of murder, assault, hostage-taking and so on have been convicted on the basis of ordinary criminal investigation procedures and evidence.  It would appear that existing counter-terrorism laws, as well as failing to prevent terrorism, do not enhance its detection or secure convictions.

7.5       The kind of special measures introduced in the name of countering terrorism usually include restricting access to counsel; failing to inform the accused of his or her supposed crimes; excluding the accused and/or counsel from the court; allowing prosecution witnesses to give evidence anonymously, behind screens and even in absentia; lowering the standard for admissibility of evidence; and so on.  Although states are often unwilling to admit it, they also tend to rely on torture or ill-treatment  and other illegal forms of pressure.  These measures are a recipe for an unfair trail.  They do the work of the terrorists for them by diminishing our own rights.  Worst of all, they do not work.  As intractable conflicts around the world have shown, there are always more suicide bombers ready to come forward.

7.6       Such special measures create a twin-track system of criminal justice in which suspects and defendants have fewer rights under counter-terrorism laws than they do under the ordinary law because of the supposed motivation for their acts.  In our view, it is morally and logically offensive to attempt to distinguish serious crimes such as murder on the basis of the alleged motive of the perpetrator - murder is murder, and is always heinous.  It is equally indefensible, though, to apply different due process rights to perpetrators on such a basis.  To do so is to deny a basic principle that underpins both the UK’s unwritten constitution and international human rights law, that of equality before the law.  To perpetuate such discrimination in permanent laws only makes a bad situation worse and enshrines an approach that deepens divisions in society and undermines democracy.

8.         How can intelligence services both be effective and accountable? How can intelligence information be used fairly in court?

8.1       The most effective counter-terrorism tool is the co-operation of the population at large.  That co-operation can only be obtained by consent; coercion is counter-productive.  People will only consent to counter-terrorism measures if they trust the authorities and believe those measures will genuinely make society safer and that the authorities will not abuse the powers we give to them that are denied to ordinary citizens, such as the power to bear and use weapons, the power to arrest and detain people, and the power to carry out covert surveillance.

8.2       In Northern Ireland, the intelligence services signally failed to recognise that coercion is counter-productive.  The people of Northern Ireland have been one of the most closely watched populations in the world.  They have been frequently stopped and searched, and had their personal details recorded, by members of the security forces.  NGOs have received many complaints from people who were stopped as often as a dozen times during one short journey.  Cars have been forced to drive through checkpoints where number plates have been automatically recorded and the driver’s details checked against those of the registered owner.  Listening towers have intercepted communications, including private discussions in people’s homes.  Telephones have been tapped and computers hacked into.  Homes and offices – including the offices of political parties and democratically elected representatives – have been bugged.  The intelligence services has employed untold numbers of paid informers and agents to report on the movements and activities of not only suspects, but political and community activists.  Journalists’ notebooks and computers have been seized.  This high level of surveillance has made the population deeply distrustful of the security forces and of each other. 

8.3       So intense has the level of surveillance been that human rights NGOs have deemed it safest to assume that their telephones are tapped and other communications intercepted.  On one occasion, a police officer from outside Northern Ireland who was working in Northern Ireland told the director of a Northern Ireland NGO that the RUC had a record of a conversation he had had using his mobile telephone during a train journey.  Three NGOs, British Irish RIGHTS WATCH, Liberty and the Irish Council for Civil Liberties are currently pursuing a case before the European Court of Human Rights after it emerged that an intelligence service listening post at Capenhurst in England had been used to intercept every telephone call made between England and the Republic of Ireland, thus violating their right to privacy and that of their clients, and their relationship of confidentiality with their clients.

8.4       Public distrust in Northern Ireland has been deepened by recent revelations that paramilitary organisations of every persuasion have all been infiltrated at the highest levels by the intelligence services, yet the conflict continued for thirty years.  It has become obvious that the huge amount of intelligence gathered was not being used to end the conflict but to orchestrate it.  Democracy itself has been severely undermined by this policy.  First, by bugging political parties and politicians, the impression has been created that political representatives are suspects, may be involved in terrorism, and cannot be trusted.  Secondly, the failure to use intelligence to prevent atrocities and apprehend perpetrators has exposed the fact that politicians, including government ministers, have either acquiesced in that failure or have been powerless to prevent it.  People on all sides of the community in Northern Ireland are beginning to ask who is in fact running the country.  They are also asking why the conflict was allowed to continue for so long, leading to the loss of so many lives and the wrecking of so many others.

8.5       The heavy reliance on informers by the intelligence services in Northern Ireland has meant that much of the intelligence that has been gathered has been unreliable or otherwise valueless.  Paramilitary groups, particularly but by no means exclusively loyalist groups, have been prone to feuds and internal schisms.  It has been all too easy for informers to settle personal scores by giving false information to the intelligence services.  The fact that most informers have been paid for information has also been problematic.  Informers feel under pressure to deliver information, regardless of its accuracy, in order to earn their money.  It says something about Northern Ireland society that the worst possible insult that can be made about anyone is to suggest that he or she is an informer.

8.6       In Northern Ireland, the intelligence services has collected huge amounts of intelligence, much of it dubious, and seem to have made the mistake of going for quantity rather than quality.

8.7       The only good intelligence is effective intelligence, which enables the authorities to prevent and detect terrorist crime.  In Northern Ireland, intelligence has been misused to protect the identity of informers and agents, instead of being used to save lives.  Based on that experience, we would argue that intelligence is only effective if it is accountable.  Unaccountable intelligence activities lead to abuse and to human rights violations, including violations of the right to life.

8.8       At paragraph 3.6 above we have set out some of the safeguards that are necessary when covert surveillance is used, and pointed out the shortcomings of existing safeguards, such as RIPA.  There are a number of ways in which the intelligence services can be made accountable, without in any way denting their ability to be effective.  For example, the intelligence services should develop a common code of ethics which is human rights compliant,  As well as being vetted for security purposes, intelligence operatives should be vetted for their compliance with the code of ethics and violations of that code should be treated as disciplinary offences which could lead to dismissal in serious cases.  An independent monitor should be appointed to oversee the intelligence services’ compliance with the code of ethics.  The use of informers should be kept to a minimum.  All informers should be rated for their reliability.  All communications with informers should be recorded and scrutinised by those who manage those who handle informers.  Any payments to informers should be regulated and recorded.  The use made of informers by the intelligence services should be independently monitored.  Mechanisms should be put in place to make it impossible for politicians to manipulate intelligence for political ends.  It is doubtful whether the British public will ever again believe a Prime Minister who claims that a third world dictator has weapons of mass destruction.

8.9       The only fair way to use intelligence in court is to treat it like any other evidence.  Only intelligence material which has been obtained legally should be admissible in court.  The intelligence services make great play of the dangers of revealing their methods in court, but in reality their repertoire is fairly limited and is widely known.  They obtain information by tapping telephones and faxes, hacking into computers, scrutinising patterns of communication, observation of suspects’ movements and activities, and from informers.  If a person has committed a crime, then it is usually possible to produce tangible evidence of that crime.  It should not be necessary to rely in court on the unsubstantiated word of an intelligence operative.  Indeed, to do so would be downright dangerous in terms of the right to a fair trial.  If a telephone has been tapped, there is no reason why the court should not be told that information, and a tape-recording of a damning conversation would be compelling evidence.  If a person has been followed and observed planting a bomb, then the court can be told and the photographs or video produced in evidence.  None of this would compromise the intelligence services by revealing the details of their methods.

8.10     There are two aspects of the use of intelligence evidence in court that are potentially problematic.  The first is the safety of intelligence operatives, whose lives may be endangered if their identities are revealed in court.  In our view, it should be for an independent judge to decide, on a case-by-case basis, applications for anonymity, for screening from public view, or, in exceptional cases, the giving of evidence remotely.  In all cases, lawyers should be able to see and hear the witness, as these are important elements in gauging a witness’ veracity and reliability.  In no circumstances should a defendant, or his or her lawyer, be excluded from the court, and nor should any part of the case against the defendant be withheld from defendants or lawyers.  Nor should a defendant be forced to be represented by a lawyer not of his or her own choosing.  National security is rightly a matter of public interest, and it is in the public interest that those accused of terrorism should receive a fair trial.

8.11     The second problematic area is the use of evidence obtained from informers.  Here again, it should be a matter for the judge whether an informer’s identity needs to be protected, and whether the informer testifies in court or not.  However, it should not be possible to convict a defendant on the basis of an informer’s evidence alone.  There should always be tangible corroborating evidence.

8.12     The role of the prosecution service is crucial when considering these issues.  The prosecution service should always be independent of the intelligence services, the police and the army, and should be able to operate free of political interference.  We are aware of a case where a man who was suffering from a severe personality disorder was prosecuted for threatening the life of an American President during a visit to an Asian country, regardless of the fact that the defendant had no means of carrying out his threat, which was based on the delusions from which he suffered, or of travelling to the country concerned.  No prosecution should ever have been brought in such circumstances, and the defendant was rightly acquitted, although the trauma he suffered worsened his mental health.  The prosecution service should always subject evidence supplied by the intelligence services to anxious scrutiny and should ensure that unreliable evidence is not put before the court.

8.13     It is our experience that, the greater the secrecy the intelligence services seek to place on a trial, the more likely it is that they have something to hide.  Public Interest Immunity Certificates have been issued in Northern Ireland and in England, not to protect national security, but to cover up illegality or incompetence on the part of the authorities.  One of the worst examples of abuse of the notion of public interest in Northern Ireland took place in 1988, when Sir Patrick Mayhew, then the Attorney-General and later Secretary of State for Northern Ireland, announced that, although the Stalker/Sampson report on the shoot-to-kill policy adopted by the RUC disclosed evidence of a conspiracy on the part of certain police officers to pervert the course of justice, he had decided that it would not be proper to institute any criminal proceedings “in the public interest”.  The true public interest is served when those guilty of terrorism are convicted after a fair and public trial.

9.         What is the role of the Security Council in fighting terrorism? What due process should persons have when their names are put on international terrorist lists?

9.1       BIRW does not profess to have any expertise on the role of the Security Council.  We do, though, have some concerns about its role.  First, we are not convinced of the validity of permanent membership of the Security Council for certain Member States.  This notion has its roots in World War 2 and is over 50 years old.  The current credentials of the permanent members for such privileged status, particularly those of the United Kingdom, seem questionable, to say the least.  We think it would be better if all members were elected by all Member States, based on equitable geographical distribution.  To provide greater stability, the term of membership should be increased from two years to four, with half the seats being re-elected every two years.

9.2       Secondly, Article 24 of the UN Charter gives the Security Council primary responsibility for the maintenance of international peace and security.  While this clearly indicates that combating international terrorism comes within the orbit of the Security Council, we are concerned that, because the permanent members wield undue influence, the Security Council can be used as an instrument of foreign policy by its most powerful members, and in particular by the USA, who appear to have no qualms about using the UN when it suits them while at the same time undermining its effectiveness by failing to pay its way and failing to ratify important UN human rights and other instruments.

9.3       Thirdly, the combined effects of Articles 25 and 103 of the Charter means that resolutions of the Security Council overrule any other international law obligations, including human rights obligations, of Member States, unless they have the force of jus cogens, i.e. peremptory norms of international law.

9.4       In considering the role of the Security Council in combating terrorism, we think it is important that Security Council resolutions are not used to legitimise wars, invasions or other incursions into sovereign territories during which gross violations of human rights are practiced or peremptory norms of international law are broken.  It is of the utmost concern that the USA is practicing extraordinary rendition, which is a euphemism for abducting people and delivering them to third countries in order that they can be tortured, and that the United Kingdom may have assisted them in that practice.  When BIRW asked the UK Ministry of Defence whether Northern Ireland airports, bases or airspace was being used for ordinary rendition, the Ministry of Defence replied that the UK had not authorised the use of any of its airports, bases or airspace for that purpose.  The correspondence is enclosed in Annex B.  It is still not clear to us whether UK airspace, airports, or airbases have been used for this abhorrent practice, and the Eminent Jurists Panel may wish to question the UK government about this.  We are also concerned about allegations of deaths and ill-treatment in UK custody in Iraq.

9.5       So far as lists of international terrorists are concerned, we are concerned that there is scope for people’s names to be placed on such lists in error, and for people to be wrongly identified as someone named on such a list.  Unless such lists are made public, a person would have no way of knowing that he or she has been falsely named.  It is notoriously difficult to prove a negative, and once someone’s name is on such a list it may be impossible for him or her to prove that she is not a terrorist.  In such cases, terrorist lists could violate the presumption of innocence.  If a person is wrongly included in a terrorist list, then the countries responsible for drawing up the list, or relying upon it, must provide mechanisms whereby that person can appeal against inclusion in the list and have his or her name removed.  The person should also be entitled to compensation for the loss of his or her good name and for any consequential loss he or she has suffered as a result of being named on the list.  Organisations wrongly designated as terrorist should enjoy similar due process rights.

9.6       We would also be concerned about the way in which such lists are drawn up.  For example, names extracted under torture ought never to be included in such lists, because their inclusion would undermine the absolute prohibition against torture.

10.       Are targeted killings a legitimate act of a state?

10.1     Our answer to this question is a categorical no.  We regard the right to life as jus cogens, although we are aware that international human rights instruments such as the European Convention on Human Rights[13] and the International Covenant on Civil and Political Rights[14] do not appear to regard the right to life as absolute.  Nevertheless, the jurisprudence of the European Court of Human Rights makes it clear that Member States’ duty to protect the right to life is active rather than passive, and that it is one of the, if not the, most important human rights.

10.2     In our view, targeted killings by the state are acts of murder and also acts of state terrorism.  Not only do they violate the right to life, but they also violate the right to a fair trial, in that those targeted are executed by the state without any recourse to due process.  If there is anything more terrifying than the threat of a terrorist attack, it is the threat of being murdered by one’s own government.  Targeted killings should have no place in a developed democracy.

10.3     In Northern Ireland over the past thirty years the state has engaged in targeted killings through a variety of means.  These have included ambush and shoot-to-kill; assisting paramilitaries to assassinate people; and inciting paramilitaries to assassinate people.  Those targeted have not always turned out to be terrorists, and many of those killed, even if they belonged to terrorist organisations, were not necessarily posing any threat at the time of their deaths.

10.4     In the four most recent terrorist-related shoot-to-kill incidents of which we are aware in the United Kingdom, none of the four men who were killed was armed or posing any threat at the time of his death.  IRA member Diarmuid O’Neill was shot and killed in a Hammersmith hotel in London by police in 1996.  He was unarmed, overcome by CS gas, and trying to surrender when he was killed.  Harry Stanley was shot in 1999 in Hackney, when the table leg he was carrying was assumed by the police to be a sawn-off shot gun.  They also assumed he was Irish; in fact, he was Scottish.  Neil McConville was killed by police in Northern Ireland in April 2003, following a car chase.  False media reports suggested McConville had threatened the police with a gun.  There was a gun in his car, but no ammunition, and he never attempted to use it.  In July 2005, Jean-Charles de Menezes was shot in Stockwell on an underground train by plainclothes police officers who mistook him for a suicide bomber.  Reports that he had failed to stop when challenged by the police, vaulted the ticket barrier at the underground station, and was wearing unusually bulky clothing for the time of year, all turned out to be false.  He was a wholly innocent man.  The deaths of all four men illustrate the tragic results that can occur when faulty intelligence coincides with the use of lethal force.

11.       What are the rights of victims of counter-terrorism?

11.1     We are not entirely sure what is meant by “victims of counter-terrorism”, but it seems to us that there are two classes of potential victims: those who are innocent of any involvement in terrorism but are treated as terrorists, and those who are involved in terrorism but whose human rights are violated by the means adopted in order to counter terrorism.  In our view, no distinction should be made between these two types of victim, because the state is under a duty to respect the human rights of everybody, regardless of their alleged crimes or allegiances.

11.2     The worst human rights violation victims of counter-terrorism can suffer is the loss of their right to life, as in the case of Jean-Charles de Menezes and the death in UK custody of Baha Mousa in 2003 in Iraq.  However, torture and cruel, inhuman and degrading treatment can leave enduring physical and mental scars that can blight the rest of a person’s life.  Even violations as relatively minor as wrongful arrest can have serious consequences for a person’s standing in his or her community, economic prospects, and family.  Indeed, victims of counter-terrorism rarely come singly; violations of their human rights often have serious consequences for their family, friends, and sometimes even their whole community.

11.3     The rights of victims of counter-terrorism should be the same as the victims of any human rights violation.  First and foremost, they have the right to be told the truth.  There are too many victims in Northern Ireland who have never been told the truth about what happened to them or their loved one, or why.  Secondly, they have the right to an effective investigation.  Thirdly, they have the right to redress, where that is possible.  Fourthly, they have the right to compensation.  Lastly, and above all, they have the right to see those responsible for human rights violations stripped of any impunity, held accountable for their actions, and punished appropriately and proportionately, according to the law, after a fair trial.  In no circumstances should the human rights of those responsible for perpetrating human rights violations be themselves subjected to any violation of their own human rights.  Neither the death penalty nor torture should be used to punish human rights abusers.

11.4     The UK is particularly weak when it comes to telling the truth, apologising, and providing an effective investigation, especially where there has been a violation of the right to life.  In May 2001 the European Court of Human Rights issued four landmark judgments[15] which affirmed the right to an effective investigation into deaths caused by agents of the state or where collusion was alleged.  The UK has not implemented these judgments and these four cases, together with two related case[16], have remained under consideration by the Council of Ministers ever since.  When one of the applicants, the son of Gervaise McKerr, killed by the RUC in a shoot-to-kill incident in 1982, applied to the domestic courts to vindicate his right to an effective investigation, the House of Lords ruled[17] that the Human Rights Act 1998, which came into force on 2^nd October 2000 and which was intended to incorporate the European Convention on Human Rights into domestic law, merely gave effect to European Convention rights in domestic law.   Individuals whose cases arose from incidents before the 2^nd October 2000 could not exercise their Convention rights before the domestic courts.   Furthermore, claims arising from the procedural rights stemming from Article 2 (which protects the right to life), such as the right to an effective investigation, even if they arose after October 2000, could not engage Human Rights Act protection if the death happened before that date.  That ruling may be overturned when a case decided by the English Court of Appeal in July 2005, called Hurst[18], reaches the House of Lords.  The Court held that the requirement of s. 3 of the Human Rights Act 1998 to read and give effect to all legislation, so far as possible, in a way that is compatible with the Convention rights listed in the Act whenever that legislation may have been enacted, means that public bodies must have regard to Article 2 and other Convention rights even where the death occurred prior to the Human Rights Act’s coming into force.

11.5     In the meantime, the UK has dealt a body blow to effective investigations by effectively abolishing public inquiries.  The Inquiries Act 2005, which came into effect in June 2005, removes the control of what were formerly public inquiries from an independent judge and vests it in the relevant Secretary of State.  From now on, a government Minister

·         decides whether there should be an inquiry

·         sets its terms of reference

·         can amend its terms of reference

·         appoints its members

·         can restrict public access to inquiries

·         can prevent the publication of evidence placed before an inquiry

·         can prevent the publication of the inquiry’s report

·         can suspend or terminate an inquiry

·         can withhold the costs of any part of an inquiry which strays beyond the terms of reference set by the Minister.

Parliament’s role has been reduced to that of the passive recipient of information about inquiries; whereas formerly reports of public inquiries were made to Parliament, now they will be made to the Executive.  The ramifications where a government Minister, Department, or agent is accused on wrong-doing are obvious.  The Act is a charter for impunity and cover-up.  In our view, it should be repealed, or amended in order to restore independent judicial scrutiny over issues of public importance and interest.

11.6     Since the perpetrators of human rights violations committed in the name of counter-terrorism are likely to be state actors, it is particularly important that all those responsible are made accountable.  Too often, if anyone is held to account, it is the foot soldiers rather than the generals, those who carried out the policies rather than those who made them.  In a democracy such as the UK, anyone who has been responsible for such violations will have done so in the name of the people, and society therefore bears the responsibility for ensuring that those perpetrators are brought to book.  Those who have been entrusted with public office and have abused it should be removed and not allowed to serve the public in the future, as well as incurring any other penalty the civil or criminal law may dictate.  Similarly, soldiers, police officers and other public servants who are violators should also lose their posts and not, as has happened all too often in Northern Ireland, be re-instated, promoted, or honoured.  Higher standards can be expected from public servants than those that can be hoped for from terrorists.  Public servants can and must be held accountable for what they do in our name and on our behalf.

11.7     Finally, the victims of counter-terrorism have a right which is also the entitlement of every other human being, and that is the right to a strong regime of human rights protection which will help to prevent human rights violations in the first place and provide redress when they do take place.  The UK lacks a written constitution and a constitutional court.  A Bill of Rights is being drawn up, but only for Northern Ireland, where it is experiencing a difficult birth.  Northern Ireland is also the only jurisdiction within the UK to have a Commission on Human Rights, which has also experienced a number of difficulties, having been starved of powers, resources, and support by the government which established it.  Rulings of the European Court of Human Rights and recommendations of the United Nations’ treaty bodies and committees are more honoured in the breach than the observance.  While the introduction of the Human Rights Act 1998 was a step forward, it has been undermined by the courts in McKerr and it omits to incorporate (or give effect to) Article 13 of the European Convention on Human Rights, which provides for an effective domestic remedy for violations of Convention rights.  The UK has a long distance to travel before it can say that it has a human rights regime or record of which it can be proud.

12.       conclusion

12.1     We are conscious that this is a lengthy submission, and in order to make it as concise as possible we sought to provide an overview which we hope will assist the Panel.  Should the Panel require further evidence or examples, we would be happy to provide them.  We are aware that the Panel will be hearing at first hand from victims of many of the human rights violations described in this submission.

12.2     The United Kingdom likes to hold itself out as a champion of human rights, even as the inventor of human rights.  It freely criticises other countries for failing to uphold international human rights standards, and is busy forcing democracy and respect for human rights on other countries while perpetrating serious violations of human rights in those same countries in the name of the war against terrorism.

12.3     As a member of the Security Council of the United Nations, the UK often receives a much easier ride on human rights than it deserves, especially in light of the policies and practices adopted in Northern Ireland.  If our work in Northern Ireland has taught us anything, it is that terrorism is not overcome by adopting the terrorists’ methods or values.  It is overcome by being better than the terrorists, even if sometimes occupying that moral high ground comes at an almost unbearable price.

MARCH 2006

BRIEF HUMAN RIGHTS HISTORY OF THE NORTHERN IRELAND CONFLICT 

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 12 April, 2006