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Terrorism and Human Rights

  • Conor Gearty

Abstract

Since the formal invocation of the Universal Declaration of Human Rights in 1948, much global discourse has been shaped by those principles, to the extent that one could without exaggeration describe the period as an ‘age of human rights’. But will and indeed can that survive the perceived danger arising from violent acts of terrorism? Is this now an ‘age of terrorism’– or at least, an ‘age of counter-terrorism’– in which human rights are being accorded a secondary status? This article considers those contentions and also advocates particular roles for those who work in the human rights field.

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1 Department of Constitutional Affairs, Review of the Implementation of the Human Rights Act, London, Lord Chancellor's Department, 2006.

2 Most famously A v Secretary of State for the Home Department [2004] UKHL 56, which led to the Prevention of Terrorism Act 2005.

3 For the general background see C. A. Gearty and J. A. Kimbell, Terrorism and the Rule of Law, London, Civil Liberties Research Unit, King's College London, 1995.

4 Stella Rimington and Ian Blair respectively. The Treasurer Gordon Brown also engaged with the subject at the same time: see ‘Brown Backs Call to Extend 28-Day Limit on Detention’, Guardian, 13 November 2006, p. 1, where there are also reports on the other interventions.

5 For a general review of the law and practice in the area, see Gearty, C. A., ‘11 September 2001, Counter-Terrorism and the Human Rights Act’, Journal of Law and Society, 32 (2005), p. 18.

6 For two excellent studies of the tensions caused by this assumption see U. Baxi, The Future of Human Rights, New Delhi, Oxford University Press, 2002, and C. Douzinas, The End of Human Rights, Oxford, Hart Publishing, 2000.

7 See further C. A. Gearty, Can Human Rights Survive?, Cambridge, Cambridge University Press, 2006.

8 1577 UNTS 3 (1989).

9 UN Doc A/811 (10 December 1948).

10 See A. W. B. Simpson, Human Rights and the End of Empire. Britain and the Genesis of the European Convention, Oxford, Oxford University Press, 2001, and K. Sellars, The Rise and Rise of Human Rights, Stroud, Sutton Publishing, 2002.

11 J. Dunn, Locke: A Very Short Introduction, Oxford, Oxford University Press, 2003, is a good summary.

12 See Article 1.1 of both the International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (1966) and the International Covenant on Civil and Political Rights 999 UNTS 171 (1966).

13 Fascinating on this is Mandel, M., ‘A Brief History of the New Constitutionalism, or “How We Changed Everything so that Everything Would Remain the Same”’, Israel Law Review, 32 (1998), p. 250.

14 Noting immediately that the collapse of the Soviet Union was due to many factors, this being only one of them.

15 N. Bobbio, The Age of Rights, Cambridge, Polity Press, 1996.

16 For a good example of the genre, see Foreign and Commonwealth Office, Human Rights Report 2005 (Cm 6606), London, Stationery Office, 2005.

17 See A. Williams, EU Human Rights Policies: A Study in Irony, Oxford, Oxford University Press, 2004.

18 Cairo Declaration on Human Rights in Islam 1990; Arab Charter on Human Rights 1994.

19 Since 1994, the Constitution states: ‘The State respects and protects human rights’.

20 The African Charter on Human and Peoples' Rights 1981, and the African Court on Human and Peoples' Rights 1998, respectively.

21 Notably the American Convention on Human Rights 1969.

22 A point the Chinese make much of in their annual review of the human rights record of the United States: see the report for 2004 published by the Information Office of the State Council of the People's Republic of China, 3 March 2005, available at http://english.people.com.cn/200503/03/eng200503_175406.html.

24 It is too early for a comprehensive comparative treatment. Two excellent books with a broader range are R. A. Wilson (ed.), Human Rights in the ‘War on Terror’, Cambridge, Cambridge University Press, 2005, and H. Duffy, The ‘War on Terror’ and the Framework of International Law, Cambridge, Cambridge University Press, 2005.

25 An outstanding example of engaged scholarship with a human rights dimension, albeit also with a broader remit, is J. Rehman, Islamic State Practices, International Law and the Threat from Terrorism, Oxford, Hart Publishing, 2005.

26 The law restricting spouses is the Nationality and Entry into Israel Law (Temporary Order) (Amendment) 2005. For the controversy over the detention legislation, see International Commission of Jurists, ‘E-Bulletin on Terrorism and Human Rights’, 12 (June 2006), p. 3, available at www.icj.org.

27 See www.icj.org.

28 See for a general flavour of this kind of literature B. Netanyahu, Terrorism: How the West Can Win, London, Weidenfeld and Nicolson, 1986. The point is dealt with at length in C. A. Gearty, ‘Human Rights in an Age of Counter-Terrorism’, Oxford Amnesty Lecture held on 23 February 2006, text available at www.lse.ac.uk/Depts/human-rights/ under index of documents.

29 See, for example, M. Ignatieff, The Lesser Evil. Political Ethics in an Age of Terror, Edinburgh, Edinburgh University Press, 2004.

30 A. M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge, New Haven, CT, Yale University Press, 2002.

31 Oberleitner, G., ‘A Just War Against Terror’, Peace Review, 16 (2004), p. 263.

32 Gearty, C. A., ‘With a Little Help from Our Friends’, Index on Censorship, 34 (2005), p. 36.

33 Huntington, S., ‘The Clash of Civilizations’, Foreign Affairs, 72 (1993), p. 22.

34 See T. Blair, ‘Not a Clash Between Civilizations but a Clash About Civilization’, speech to the Foreign Policy Centre and Reuters, 21 March 2006.

35 See the speech by the Lord Chancellor Lord Falconer of Thornton in Sydney on 13 September 2006, on ‘The Role of Judges in a Modern Democracy’ in which he condemned the detentions in Guantanamo as a ‘shocking … affront to the principles of democracy’, available at www.dca.gov.uk/speeches/2006/sp060913.htm.

36 See the speech by the Secretary of State for the Home Department Dr J. Reid at Demos in September 2006, ‘Security, Freedom and the Protection of our Values’, available at www.labour.org.uk.

37 Ibid.

38 For one among many examples see the comments reportedly made about the likelihood that judicial proceedings would be ignored in relation to the deportation of persons to Iraq: Guardian, 5 September 2006, p. 1.

39 Chahal v United Kingdom (1996) 23 EHRR 413.

40 Soering v United Kingdom (1989) 11 EHRR 439.

41 Ramzy v Netherlands.

42 Now assisted by an excellent report, Human Rights Watch, Dangerous Ambivalence. UK Policy on Torture Since 9/11, London, Human Rights Watch, 2006.

43 [2006] EWCA Civ 1078.

44 R(Al-Skeini) v Secretary of State for Defence [2005] EWCA Civ 1609.

45 Apart from in Northern Ireland, of course, but the colonial analogy never worked there, the six counties that made up the British section of the province of Ulster being part of the UK as a matter of constitutional law; [2006] EWCA Civ 1190.

46 A v Secretary of State for the Home Department (No 2) [2005] UKHL 71. Their lordships considered that immediate administrative actions to divert catastrophe could be legitimately undertaken, even where the source of the information that underpinned the action might have been contaminated by suspicions of torture.

47 Terrorism Act 2000, section 1.

48 Sections 59–61.

49 Terrorism Act 2000, part 2.

50 See Gearty and Kimbell, Terrorism and the Rule of Law for a flavour of the discussion in the 1980s and early 1990s.

51 Terrorism Act 2000, secton 5, schedule 3.

52 K. D. Ewing and C. A. Gearty, Freedom under Thatcher. Civil Liberties in Modern Britain, Oxford, Oxford University Press, 1990, pp. 241–50.

53 Section 1.

54 Part 4.

55 A v Secretary of State for the Home Department[2004] UKHL 56. For more details see Gearty, C. A., ‘Human Rights in an Age of Counter-Terrorism: Injurious, Irrelevant or Indispensable?’, Current Legal Problems, 58 (2005), p. 25.

56 Prevention of Terrorism Act 2005.

57 See Secretary of State for the Home Department v MB [2006] EWCA Civ 1140; Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141.

58 Compare R (Singh) v Chief Constable of the West Midlands [2006] EWCA Civ 1118.

59 These points are further developed in Gearty, Can Human Rights Survive?.

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Government and Opposition
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  • EISSN: 1477-7053
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