Presumption of Guilt: Islamic State and UK Criminal Law

Islamic State Fighters (Picture Credit: The Guardian)Today the UK terrorism threat level has once again been raised to severe, as a result of ‘developments in Syria and Iraq where terrorist groups are planning attacks against the west’. Within hours of the increased threat being announced, David Cameron was on hand (in Downing Street, not in Cornwall) to  ominously declare a “greater and deeper threat to our security than we have known before”.    Continue reading “Presumption of Guilt: Islamic State and UK Criminal Law”

Presumption of Guilt: Islamic State and UK Criminal Law

Taxes, juries and emergency powers: Murphy v Ireland

In a resolutely formalistic judgment, the Supreme Court yesterday rejected a constitutional challenge to the hearing of “ordinary” cases in the Special Criminal Court. Thomas Murphy had been charged with failing to make his tax returns — an indictable offence that is tried usually in the “ordinary courts” —  but the DPP certified that such courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of Thomas Murphy”.

Before trial, Murphy issued a plenary summons seeking declaratory relief, claiming, inter alia, that the DPP’s power of certification fails to guarantee his right to equality and his right to a fair trial in due course of law before a jury of his peers, and it does not permit the plaintiff argument to be heard before the issue of the certificate, or dispute it afterwards. Moreover, it was claimed that that the exercise of the DPP’s powers could be predicated on false or inaccurate reasons, but there is no means of ensuring disclosure of such reasons, and that review is possible only where mala fides is demonstrated.

The Supreme Court dismissed Murphy’s claims, allowing trial to proceed. Continue reading “Taxes, juries and emergency powers: Murphy v Ireland”

Taxes, juries and emergency powers: Murphy v Ireland

Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda

David Miranda (Picture Credit: The Guardian)Stop and Search certainly was the hot human rights news story of last summer within the UK. Schedule 7 powers under the Terrorism Act 2000 allow for extended powers to stop and search, and even detain for up to nine hours individuals in the context of ports and airports, for the purpose of assessing whether they are linked to terrorism. That police powers should be extensive in this context might be thought relatively uncontroversial. After all, the potential to trap hostages in such a confined space was attractive to terrorist groups long before the 9/11 attacks displayed the potential of using civilian airliners as weapons. Continue reading “Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda”

Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda

Stateless Terrorists: Domestic and International Legal Implications

utf-8UNHCR-GLC-Statelessness-Poster-A1-screen2 (2)We are delighted to welcome this guest post by Ntina Tzouvala and Rumyana Grozdanova on Theresa May’s announcement of her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship. Ntina is Deputy Co-Convener of Law and Global Justice and a PhD student at Durham Law School who is currently researching on history and theory of public international law. You can contact her here or follow her on Twitter @ntinatzouvala

Rumyana is Deputy Co-Convener of the Human Rights Centre and a PhD student at Durham Law School who is currently researching the US programme of Extraordinary Rendition and its effects on the international legal framework. You can contact her here or follow her on Twitter @rgrozdan

On 12 November 2013 the Home Secretary, Theresa May, announced her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship even if this renders them stateless. In years following 9/11 and 7/7, domestic and regional counter-terrorism responses have reshaped the relationship between individuals and the state and in particular the relationship between individuals suspected of terrorism and the state. Through broad anti-terrorism legislation, law has become a tool for persecuting individuals suspected of terrorism; the new measures proposed by Theresa May are yet another domestic step in what has been described as the ‘weaponisation of law’ (1). In the context of the transnational counter-terrorism operations led by the US and UK (also known as the ‘War on Terror’), the UK Terrorism Act 2000 introduced tougher and more extensive anti-terrorism measures in comparison the USA Patriot Act 2001. The existing definitions of terrorism were vastly expanded from politically motivated violence to include politically and religiously motivated serious property damage and interference with electronic systems; protests and strikes could thus potentially fall under the definition as well. The 2000 Act also outlined a proscription regime based on intelligence evidence, which by its nature was secret and introduced offences relating to being a member of or identifying with a proscribed organisation. Other broad offences were introduced, which appeared to push the boundaries of inchoate or pre-crime liability by criminalising the possession of articles. Due to the broad scope and span of the legislation, these offences could potentially by applied to individuals who are suspected of terrorist activities. This legislative approach towards a permanent basis for anti-terrorism measures in times of normalcy as opposed to times of national exigency was followed by the Anti-Terrorism, Crime and Security Act, 2001. The 2001 Act revived the offences of failure to provide information to the authorities, the use of immigration law as part of anti-terrorism law and a renewable 15 month derogation from Article 5(1)(f) the European Convention on Human Rights. The derogation in question was used to authorise indeterminate administrative detention of non-UK citizens suspected of involvement in terrorist activities however could not be deported due to the principle of non-refoulement. It was struck down by a House of Lords decision, which found the post 9/11 derogation to be both disproportionate and discriminatory by focusing on non-UK citizens only as posing a threat of terrorist activities. Perhaps the most significant legal development of the post 9/11 and 7/7 UK approach is the return to the regular renewal of the anti-terrorism legislation, which in 2006 and 2008 included minor expansions to the definition of terrorism (2). In short, domestically, the adopted definitions of terrorism have legitimised and normalised broad sweeping counter-terrorism measures. A significant development within this context is the recent case of R v. Gul. The UK Supreme Court found that there is no basis on which the ‘natural, very wide, meaning’ of the definition of terrorism under the 2000 legislation could be read restrictively as the definition ‘had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take.’ Thus potentially anyone can be a suspect of terrorism or terrorist related activities as illustrated aptly by the recent 9 hour detention of David Miranda at Heathrow Airport. Historically, few words have been plagued by so much indeterminacy, subjectivity and political disagreement as the word ‘terrorism’ (3). The term has gradually developed into one of the most pejorative words in the English language with a power focused on condemnation and response rather than explanation. Taking into account the pejorative connotations associated with the term terrorist suspect and the potential implications for an individual under the current anti-terrorism framework in the UK, the reasons behind Theresa May’s proposal lie elsewhere.

It could be assumed that this response to the recent Supreme Court decision in the case of Secretary of State for the Home Department v. Al-Jedda. In this case, the Court found that section 40(4) of the British Nationality Act 1981 prevents the Home Secretary of depriving someone from his/her British citizenship ‘if she is satisfied that the order would make them stateless.  By repealing the law, Theresa May will seek to remove this restriction and allow for more flexibly in measures taken against suspected terrorists. Significantly, the Secretary of State presently commands a wide discretion when it comes to deprivation of citizenship. Since 2002 the Secretary of State has the right to deprive of citizenship not only naturalised citizens, as was the case until then, but also has power to remove citizenship from all British citizens. The Act was further amended in 2006 to expand the discretion of the state – now any British citizen can be deprived of their citizenship ‘if the Secretary of State is satisfied that deprivation would be conducive to the public good’. Prior to this amendment, the Secretary of State had to be satisfied that the person had done something ‘seriously prejudicial to the vital interests of the United Kingdom. The inherent indeterminate scope and ambiguity of the ‘public good’ criteria has thus significantly enhanced state power when it comes to removal of citizenship.

Section 40(4) is perhaps one of the last legal safeguards against misuses of the Act. Statelessness significantly imperils the rights of an individual; most crucially it renders them exceptionally vulnerable as it would be almost impossible to acquire travel and identification documents and legally reside in a territory. The international community was determined to limit the occurrence of such precarious experiences after the infamous Nuremberg Laws and the Holocaust. Following World War II, the granting and removing of nationality ceased to be an unlimited prerogative of the state as international legal documents began imposing constraints on signatory states. Article 15(1) of the Universal Declaration of Human Rights adopted in 1948 notes that  ‘Everyone has the right to a nationality’. While the Declaration did not have a legally binding character when adopted, today it is generally accepted that it has acquired international customary law status and is therefore binding upon all states. Furthermore, two conventions with exclusively focusing on statelessness have been drafted under the auspices of the UN. The 1956 Convention Relating to the Status of Stateless Persons attempted to mitigate the adverse impact of statelessness by designating a minimum standard of treatment for stateless people. The 1961 Convention on the Reduction of Statelessness sought to reduce the occurrence of the phenomenon by imposing significant limitations on states’ discretion to manage their citizenship laws with a view to limit incidents of statelessness.  This Convention came into force in 1975 and after this date its provisions set out significant international legal limitations for states parties to it, including the UK, which ratified the Convention in 1966. Articles 7, 8 and 9 impose limitations on the deprivation of nationality if a state act results in rendering an individual stateless; therefore, the UK’s discretion on the matter is curbed under international law.

Admittedly, the UK has altered its obligations under the treaty by tabling a reservation. Nevertheless, the repeal proposed by the Home Secretary appears to exceed the scope of the reservation itself. The reservation only covers the deprivation of citizenship of naturalised citizens. Hence, one could reasonably argue that the 2002 amendment of the British Nationality Act 1981 was already in violation of the 1961 Convention. More importantly, the text and spirit of the reservation strongly indicates that it refers to individuals convicted by a court of law for ‘seriously prejudicing the vital interests of Her Britannic Majesty’. There is no evidence that the reservation was intended to be applicable to ‘suspects of terrorism’. Such an interpretation broadens the scope and span of the reservation in a manner that undermines the object and purpose of the Convention itself (5). Hence, the mantra that British citizenship is ‘a privilege, not a right’ and as a corollary that it is strictly and solely within the UK Government’s authority to manage citizenship rules are deceptive, as they involve (purposefully) a disregard for international legal obligations.

(1) Kennedy, D., Of War and Law (2006, Princeton; Princeton University Press) and Murphy, C. C., EU Counter-Terrorism Law (2012, Oxford; Hart Publishing);

(2) The list of Acts containing the term ‘terrorism’ in their title and the full texts of the Terrorism Act 2006 and the Counter-Terrorism Act 2008 are available at http://www.legislation.gov.uk/primary?title=Terrorism

(3) Saul, B., Defining Terrorism in International Law (2006, New York; Oxford University Press), see also Gearty, C., Liberty & Security (2013, Cambridge; Polity Press)

(4) United Kingdom of Great Britain and Northern Ireland

“[The Government of the United Kingdom declares that], in accordance with paragraph 3 (a) of Article 8 of the Convention, notwithstanding the provisions of paragraph 1 of Article 8, the United Kingdom retains the right to deprive a naturalised person of his nationality on the following grounds, being grounds existing in United Kingdom law at the present time:  that, inconsistently with his duty of loyalty to Her Britannic Majesty, the person

“(i) Has, in disregard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another State, or
“(ii) Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.”

(5) Article 31(1) of the Vienna Convention on the Law of Treaties provides us with a useful guide as for the interpretation of treaty obligations: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Stateless Terrorists: Domestic and International Legal Implications

Organization for the Prohibition of Chemical Weapons (OPCW) wins the Nobel Peace Prize

Contrary to many predictions this year’s Nobel Prize has gone to an international institution, the Organization for the Prohibition of Chemical Weapons (OPCW). Several organisations have won the prize before including, the UN, Médecins Sans Frontières, the International Labour Organisation, and controversially, in 2012 the EU. The OPCW is an organisation tackling a very particular issue, the dismantlement of Chemical Weapons. Awarding the Peace Prize to this form of organisation is somewhat rare though examples such as International Campaign to Ban Landmines (ICBL) and the Intergovernmental Panel on Climate Change (IPCC) provide some precedent for the choice. Of course, the OPCW has come to recent prominence due to the chemical attacks in Syria and Security Council Resolution 2118 which specifically requires Syria to co-operate with the OPCW in the destruction of its chemical weapons stockpiles. Although the Nobel’s Committee were clear that it was not just for this reason that they received the award. Indeed, disarmament is specifically mentioned in Alfred Nobel’s will.

The OPCW established in 1997, is a relatively new organisation, although a ban on the use of Chemical Weapons dates from 1925 under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. The organisation itself emerged from the Chemical Weapons Convention which went further than simply banning their use but also a prohibition on the development, production, stockpiling and use of chemical weapons as well as their destruction. It has 189 state signatories, thus simply on numbers a very successful treaty. Of the non-signatories the wrangling between Egypt and Israel is one of the more interesting turns with the former promising to ratify if the latter signs the Treaty on the Non-Proliferation of Nuclear Weapons. Israel has stated that it will ratify the CWC if other non-parties in the region do so as well.

From their widespread use by all sides in World War I, the use of chemical weapons was almost immediately considered to be beyond the pale. Their indiscriminate nature, long-term effects and the suffering of those exposed to them meant that they were abhorred almost immediately after their first modern use in 1914. Chemical warfare was used both during and after the War though the latter occasions were generally outside of Europe by colonial forces against uprisings. Most notoriously by Mussolini’s forces in Ethiopia and Japanese forces in China, despite the 1925 Protocol. Their use in Yemen in 1963, in the Iran-Iraq War, by Iraq against the Kurds in 1988 remained the most high-profile state uses of these weapons until the recent attacks in Syria. While several terrorists groups, most notoriously Aum Shinrikyo’S use of Sarin gas in Tokyo in 1994 and 1995 also showed their devastating character. The Nobel Committee clearly stated that other uses of chemical weapons outside of warfare such as its use in the murder of millions in concentration camps during World War II also forms part of the importance of the organisation and its activities.

The Panel makes quite clear that the awarding of the prize should also bring attention to the lack of co-operation that the OPCW has experienced from states that hold chemical weapons stockpiles and are signatories to the Convention particularly regarding  the deadline for their destruction;

Certain states have not observed the deadline, which  was April 2012, for destroying their chemical weapons. This applies especially to the USA and Russia.

Given that the USA was at the forefront of the condemnation of Syria’s use of chemical weapons and Russia was its primary defender (though they disputed that it was the Syrian State that used the weapons) this is an important statement. The USA’s violation of its own international legal obligations regarding the holding of chemical weapons somewhat lessons its ability to engage in finger wagging.

The OPCW’s current activities in Syria now comes under more intense and renewed scrutiny. This places more pressure on the Organisation to succeed in meeting the nearing deadline for the completion of the disarmament task. Arguably their success in this activity ought not to be the basis on which this choice by the Nobel Committee is measured. Like many international organisations and unlike well known bodies such as the UN or the IMF, their activities often go unnoticed and their record of success in the destruction of these chemical stockpiles and monitoring of their potential creation is a more suitable basis for evaluation. While their may be some surprise that high profile individuals had not received the award, this choice emphasises the importance of international co-operation in the creation of law and organisations that hold back some of war’s worst excesses and fulfills Nobel’s intention to recognise the importance of disarmament in the maintenance of peace.

Organization for the Prohibition of Chemical Weapons (OPCW) wins the Nobel Peace Prize

Grozdanova on US Surveillance Leaks

Rumy

We are very pleased to welcome this guest post from Rumyana Grozdanova (left). Rumyana is a Deputy Co-Convener of the Human Rights Centre and a PhD student at Durham Law School who is currently researching the US program of Extraordinary Rendition and its effects on the international legal framework. You can contact her here or follow her on Twitter @rgrozdan

On Monday 13 May this year, Associated Press revealed that the US Department of Justice had secretly obtained two months of personal and office phone records of reporters and editors for Associated Press (AP). The records outlined the outgoing phone calls of individual reporters, the general AP office numbers in New York, Washington and Hartford, Conn., and the main phone number for AP in the House of Representatives press galleries; in total, the records for more than 20 separate phone lines were seized – the number of journalists who would have used those phone lines is not known. This highly controversial and worrying intrusion on journalistic freedom and civil liberties has been subsequently defended by US Attorney General Eric Holder with reference to the omnipresent counterterrorism narrative; according to him, a story run by AP had posed a major threat to the security of the American public. Jay Carney, the White House spokesman, in noting that President Barack Obama had not been privy to the actions of the Justice Department, added that a careful balance must be attained between the need for secret and classified information to remain secret in the interests of national security and press freedom and civil liberties. Continue reading “Grozdanova on US Surveillance Leaks”

Grozdanova on US Surveillance Leaks

Book Publication: EU Counter-Terrorism Law

Some readers may be interested in the recent publication of my monograph, EU Counter-Terrorism Law: Pre-emption & the Rule of Law. The book is the first sustained study of EU legislation in the field of counter-terrorism. It critically examines EU counter-terrorism measures to ascertain how rule of law principles have been affected in the ‘war on terror’. The book opens with an overview of the “war on terror”. It notes that the trend in both the UK and US

has been towards pre-emptive intervention that attempts to eliminate threats to national security before they arise. Building on twentieth-century ideas of risk and actuarial justice, these trends undermine traditional legal protections by shifting the target of law enforcement from acts already committed to action that may be committed in the future.

The book seeks to assess how these developments have had an impact on the rule of law. It develops a critical understanding of the EU rule of law and then goes on to analyse five key facets of EU counter-terrorism: Continue reading “Book Publication: EU Counter-Terrorism Law”

Book Publication: EU Counter-Terrorism Law

A Radical Review of UK Terrorism Legislation?

This week saw the release of the second report of the current Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts. The report is a remarkable work, running to over 140 pages in length, and covering several topics in depth. Although the role requires a report covering the whole legislation, the Reviewer, David Anderson QC, has paid particular attention to the definition of terrorism, the availability of bail in relation to terrorist offences and the system of proscription of organisations.

The report has attracted some press attention, though perhaps less than would have been the case during the heady Blair/Brown years of a perpetual counter-terrorism legislative cycle. The BBC coverage offers analysis by Continue reading “A Radical Review of UK Terrorism Legislation?”

A Radical Review of UK Terrorism Legislation?

The Difficulties in Defining Terrorism under International Law

We are delighted to welcome this second guest post from Anna Marie Brennan. Anna Marie  is PhD Candidate in Law at University College Cork and Visiting Scholar at the Lauterpacht Centre for International Law at Cambridge University. She will be a legal intern on the Radovan Karadzic defence team at the International Criminal Tribunal for the Former Yugoslavia in 2012.

Numerous countries have had to deal with the tragic consequences of terrorist attacks. However, there is still very little consensus within the international legal community concerning what behaviour constitutes an act of terrorism. This lack of consensus has made it virtually impossible to adopt an international convention on terrorism that includes a legally binding, all-inclusive definition of terrorism. In the past, the UN Security Council has considered terrorism to include violent acts by private individuals or groups which may or may not have been State sponsored. However, beyond this general description little can be learned from UN Security Council practice about what conduct constitutes terrorism other than the fact that terrorist acts constitute a threat to international peace and security.

Continue reading “The Difficulties in Defining Terrorism under International Law”

The Difficulties in Defining Terrorism under International Law

Counter-terrorism, Rights and the Rule of Law: How Far Have We Come Since Executive Detention?

We are delighted to welcome back Rachel Herron, a PhD candidate at Durham Law School. This post focuses upon TPIMs and the new Enhanced Terrorism Prevention and Investigation Measures legislation in the UK.  Rachel has previously worked as a solicitor in private practice. You can read some of Rachel’s previous posts here and here.

Since 9/11 the reluctance of the Government to adhere to the normal tenets of human rights-protection and the rule of law in counter-terrorism measures has been demonstrated with a fairly depressing repetitiveness.  This is particularly clear in relation to pre-charge restrictions placed individuals thought to be involved in terrorist activities.

In the immediate aftermath of 9/11 the rapidly enacted Anti-Terrorism Crime and Security Act of 2001 (‘ATCSA’) implemented a policy of executive detention of non-UK nationals (s.23). Little over four years later the House of Lords handed down the oft-cited and widely commented upon judgment in A v Secretary of State for the Home Department (‘A’) holding that the power was incompatible with the ECHR.  The judgment was seen by some as striking a first, and significant, blow against the Government’s counter-terrorism agenda and as sending a clear rights-enforcing message. Through the subsequent enactment of the Prevention of Terrorism Act 2005 the Government replaced executive detention with control orders (ss.1-9).  This regime remedied one source of criticism of executive detention by allowing individuals of any nationality to be detained.  Continue reading “Counter-terrorism, Rights and the Rule of Law: How Far Have We Come Since Executive Detention?”

Counter-terrorism, Rights and the Rule of Law: How Far Have We Come Since Executive Detention?