BRIEFING ON COUNTER-TERRORISM MEASURES

BRIEFING ON COUNTER-TERRORISM MEASURES

British Irish rights watch is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland.    Our services are available free of charge to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

This briefing is being sent to all members of the House of Commons; and is based on British Irish rights watch’s 15 years experience of counter-terrorism measures in Northern Ireland.

Dreadful though the events of 7 July 2005 were, it is vitally important that we do not over-react by taking hasty and ill-thought out measures which are unlikely to deter would-be terrorists.  Indeed, the greater danger is that we create a repressive and defensive society, breeding further terrorism.  Measures such as the draft Terrorism Bill, the list of unacceptable behaviours, the Government’s intention to deport non-UK nationals suspected of terrorism, the measures announced by the Prime Minister on 5 August, the possibility of allowing sensitive evidence to be adduced in criminal trials, the possibility of establishing a judicial role in the investigation of terrorism crimes and the development of a ‘shoot to kill’ policy; are all, in our opinion, counter-productive and can potentially undermine the status of human rights in the UK. 

Terrorism Bill

The definition of terrorism utilised in the draft Terrorism Bill is so broad and diffuse, that it runs the risk of creating crimes without real victims, an outcome which would bring the law into disrepute.  The objective of most actual terrorism is usually the overthrow of the state, or at least the status quo.   That being so, it is crucial that a democratic state does not over-react to terrorism or the threat of terrorism, because to make any of these errors can catapult a state out of democracy and into despotism; creating the very situation the terrorists are seeking to achieve. 

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.

The draft Terrorism Bill encompasses offences which can found in previous legislation; this repetition does little to aid the

Government’s claim that this legislation is not a knee-jerk reaction. [1]

Glorification and Encouragement of Terrorism

The offence “encouragement of terrorism” is so vague as to be meaningless.  It is virtually impossible to prove that someone “knows or believes”, still less “has reasonable grounds for believing” anything.  It is harder still to prove that someone publishing a statement knows or believes what the general public’s understanding of that statement will be, especially when that understanding can encompass indirect threats.  The proposal dissolves into thin air when it posits the idea that no-one need in fact have been encouraged or induced to commit any offence.

The “glorification of terrorism” is similarly vague.  Any Irish person who expresses support for any act of republican or loyalist terrorism in the past 20 years would be committing an offence and could face up to five years in jail.[2]  Such a situation would scarcely assist the still-fragile peace process.  Indeed, we suspect and fear that no such prosecution would ever be made in relation to the conflict in Northern Ireland, but that this principle would be used against the Muslim community, raising the spectre of racism and creating an atmosphere of mistrust and resentment which plays straight into the hands of the terrorists.

Both of these offences clash with the right to freedom of expression.   While the glorification of acts of violence is offensive, any attempts to outlaw it, merely drive it further toward the fringes.

While we acknowledge that the inclusion of these elements of the legislation are currently under review; we make the aforementioned comments should these elements be resurrected.

Proscription of organisations and dissemination of material

The use of ill-defined terminology frustrates the Government’s desire to contain and control terrorist organisations.  Banning the publication of terrorist literature is futile, given the existence of the internet. Likewise, the definition of a publication is so wide that a map of the street plan of Belfast, or the London telephone directory, could in theory be described as a terrorist publication for the purposes of the draft Terrorism Bill.

Proscribing organisations and prosecuting their members drives them underground and increases their allure.  Membership is difficult to prove and prosecutions on such a basis are open to abuse.  Proscription may breach the right to freedom of expression and to freedom of association.

Lethal force, “shoot to kill”

The introduction and implementation of Operation Kratos by the Metropolitan Police Force, and the subsequent death of Jean-Charles de Menezes, indicates a blatant disregard for the right to life by the Government, and a seriously flawed counter-terrorism policy.[3]  The Metropolitan Police Commissioner, Sir Ian Blair has stated that it is the “least worst way of tackling suicide bombers……..I am not certain the tactic we have is the right tactic, but it is the best we have found so far.”[4]  There have been three previous incidents involving the use of lethal force, prior to the death of De Menezes, of which we are aware; all resulted in the deaths of unarmed men, none of whom were posing any threat at the times of their deaths.  The deaths of Harry Stanley, Diarmuid O’Neill and Neil McConville all illustrate the tragic problems which can arise when faulty intelligence leads to the abuse of lethal force.[5]

Deportation, diplomacy and article 3 of the European Convention on Human Rights

The deportation of non-UK nationals to states where they may be at risk from torture and possibly even death, makes a mockery of the UK’s human rights commitments.  The ‘Memorandum of Understanding’ the Government has signed with Jordan is inconsistent with persistent allegations of the practice of torture and other cruel, inhuman or degrading treatment or punishment which  have been made by both individuals and human rights groups -  in particular, to elicit information from those suspected of belonging to extremist Islamic organisations or prisoners detained on grounds of national security.[6]  The very need for diplomatic assurances indicates a full awareness that torture in detention exists. 

Exclusion

The use of exclusion orders by the UK Government, can potentially generate the same effects as those noted above with deportation.  Exclusion orders were used in Northern Ireland, and banned individuals from travelling to Great Britain from Northern Ireland.  These orders not only affected those on whom they were served, but also disrupted family ties and friendships.  There was no right of appeal against an exclusion order, and such orders breached not only Article 12 of the Universal Declaration of Human Rights (no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence….), but the Treaty of Rome, which allows for freedom of movement for European citizens to seek work, and the rules of natural justice.  The use of exclusion orders was also applied to prevent speakers travelling from Northern Ireland to attend meetings in Britain.  This had the effect of stifling public debate on the conflict and making paramilitary leaders less publicly accountable for their actions.

Intercept evidence

The importance of modern technology for terrorists supports the argument for using intercept evidence in court.  However, careful attention needs to be paid to the human rights implications of covert surveillance, in particular its impact on the privilege against self-incrimination, which forms an important element of the right to a fair trial.  The use of intercepts should be the subject of keen safeguards, with a rigorous system for approval. 

Detention

A person should not be arrested without reasonable grounds[7], and it is not acceptable to arrest someone first and then seek the grounds which should have been established before the arrest.  If proper groundwork has been done before an arrest, then there should be no need for prolonged detention before charge.  Detention of 3 months without charge could have serious psychological and social implications for both the detainee and their family.  The fact that detainees may not be aware of the charges or evidence against them, may have similar effects.  These factors also undermine the fundamental principles of the British legal system such as the presumption of innocence, and the right to a fair trial.  Lord Steyn for instance calls the proposals “exorbitant and unnecessary”.[8]  A three-month detention period would require a derogation from the Convention, in our view, which could not possibly be justified, despite the bombings in London last July, as there is no state of emergency threatening the life of the nation, as prescribed by Article 15.

We have seen the negative impact of prolonged detention with internment in Northern Ireland.  This policy wrongfully held scores of men, based on faulty intelligence, and directly contributed to increased IRA recruitment.

 OCTOBER 2005

The Terrorism Bill 2005 was published on 12^th October 2005.  It can be found out

http://www.publications.parliament.uk/pa/cm200506/cmbills/055/2006055.htm

Home Back

For Peace Justice & Human Rights

 12 October, 2005 |