Après Charlie: The Progress of the UK's new Counter-Terrorism and Security Bill

Charlie Hebdo Attack: Picture Credit - The TelegraphThe Counter-Terrorism and Security Bill currently being hustled through Parliament with unseemly haste was announced in a blaze of rhetoric. Theresa May told a rapt 2014 Conservative Party Conference that she wanted to see “new banning orders for extremist groups”. There was talk of re-establishing the Broadcasting Ban (which did so much in the 1980s and early 1990s to help out jobbing actors who could do a passable Gerry Adams impression – Stephen Rea included). “Foreign Fighters” would be prevented from returning to the United Kingdom. Foreign Secretary Phillip Hammond even floated the idea of levelling treason charges against those taking part in Islamic State activities overseas, even though various modern terrorism offences of universal jurisdiction exist. Continue reading “Après Charlie: The Progress of the UK's new Counter-Terrorism and Security Bill”

Après Charlie: The Progress of the UK's new Counter-Terrorism and Security Bill

Northern/Irish Feminist Judgments: First Workshop 'The Foreign Subject'

NIFJPWe are delighted to welcome back Ruth Houghton, a Graduate Teaching Assistant and Ph.D. candidate at Durham Law School who has previously written for us here and here. Ruth is also a commentator on the Northern/Irish Feminist Judgments Project. The post was published on Inherently Human.

The Project

As has been previously mentioned on this blog, the  Northern/Irish Feminist Judgments Project (@irishfjp) is led by Aoife O’Donoghue (Durham Law School), Julie McCandless (LSE Law) and Máiréad Enright (Kent Law School). A feminist judgments project writes the ‘missing feminist judgment’; it takes original decisions and rewrites them from a feminist perspective. Abiding to the strictures of precedent and custom that judges adhere to, the feminist judge shows how the law could have been interpreted or applied differently. This particular project builds on the work of the Canadian, Australian and English feminist judgments projects, and focuses specifically on the creation of identity in Ireland and Northern Ireland. The project will explore both jurisdictions, rewriting cases from both the Irish and Northern Irish courts. The Northern/Irish Feminist Judgments project explores the building of communities and the importance of diaspora for Irish identity as well as creating a space to explore the ways that Northern Irish and Irish identities have ‘affected, and defined themselves in relation to one another over time’.

First Drafting Workshop

On the 23rd October 2014, in Ulster University, five feminist judges presented their draft judgments to an interdisciplinary audience. The judges were free to choose the cases that they wanted to rewrite from a feminist perspective, which meant that there was a broad range of issues covered. From Irish constitutional law to vicarious liability for child sexual abuse, from employment law to public appointments and police powers and duties, these cases raised questions about community, identity, harm and the limitations of the legal systems.  The cases that were discussed at this workshop were; In re White (Judge: Catherine O’Rourke), McGimpsey v Ireland (Judge: Aoife O’Donoghue), In re E (Judge: Colin Murray), O’Keefe v Hickey (Judge: Maeve O’Rourke) and Flynn v Power (Judge: Eoin Daly).

Interspersed between the cases, were panels from scholars and activists from a variety of disciplines. The project aims to engage with the particular social, political and sectarian context and so issues of religion, sexuality and abortion were discussed during the two-day’ workshop. Photographer and filmmaker Emma Campbell (@frecklescorp) shared her video, When they put their hands out like scales, which includes the words from the Hansard debate on abortion in the Northern Ireland Assembly on 20th June 2000. Listening to words from the debate highlighted the prevalence of religion within the political debate on abortion. The images of walkways, paths and finally images of the docks were used to demonstrate the journeys women in Ireland have to take to seek an abortion and ultimately the denied statehood of these women. The extent to which abortion effects the construction or deconstruction of women’s identities was highlighted in the short-film as an actor read aloud Mrs Carson’s statement from the debate in the Assembly, ‘they should not be made to feel like criminals having to hide their identities. Nor should they be ostracised by society.’ Leanne McCormick demonstrated the role of female sexuality in the creation of women’s identities. She displayed images from ‘douching’ advertisements and told of how women were represented within trial reports from the early 20th century following accusations of abortions, attempted terminations and infanticide.

The construction of the foreign subject

The theme of the first drafting workshop was the ‘Foreign Subject’. Ex-President of the United States of American, Bill Clinton was noted to have said that ‘the most urgent issue facing the world [is] that of identity’ (quoted by Marianne Elliott). The creation of identities in Ireland and Northern Ireland was the focus of the panels at the first drafting workshop. Scholars from history, sociological, English literature and law came together to discuss the effects of the social, geographical, political and religious contexts on the construction of Irish identities. One element of this identity creation was migration and more broadly, travel and movement. Louise Ryan argued that identity is relational; it is located within particular places and created by the different relations between people. She discussed the effect of migration to England on Irish identity, showing how the perception of Irish people in England effects the way individuals present their Irish-ness.

In particular, the panels were interested in the way more marginalised groups build identities or have identities imposed upon them. Throughout the workshop the term foreign was constantly conceptualised and reconceptualised, stretched and expanded, to include those groups of people who are considered ‘foreign’ because they do not fit within societies expectations. ‘Foreign’ could include migrants, religious identities, LGBT persons, or women. Marianne Elliot noted how the word for foreign and protestant in Irish is the same and Anne Mulhall from University College Dublin spoke on the representation of migrant and LGBT persons in campaign literature.

One of the questions that the project seeks to explore is the role of the judiciary in the creation of identities. In judicial decisions, identities are created and the case law acts as a permeant record of this identity. The McGimpsey v Ireland case is an interesting example of the way litigants are constructed by the courts. The McGimpsey brothers lived in Northern Ireland and were well-known political actors amongst unionist supporters, their political belief was a rejection of Irish jurisdiction over Northern Ireland. They took a case to the courts in the Republic of Ireland challenging the Anglo-Irish Agreement of 1985. Even though the brothers rejected Ireland’s territorial claims and unionists in general would have been disliked in the Republic, when the case was in the High Court in the Republic of Ireland, Barrington J described the litigants as being ‘patently sincere and serious people’. Emphasising the brothers’ good standing within the community and their public and civic lives, the court fashioned an ideal litigant. This raises the question whether a housewife could have brought the same case and received the same favourable treatment; a question that Aoife O’Donoghue considered in her feminist rewrite of the Irish Supreme Court judgment.

The interrelationship between questions of community and identity in Northern Ireland and Ireland is strong. The community in Northern Ireland meant Protestant and Catholic or Unionist and Nationalist. Marianne Elliot highlighted how these different community groups had very different oral histories, which are used to crystallise identities. The pervasiveness of this divide is seen by the nature of party politics, which draws a distinction between “unionist”, “nationalist” and “other”. Yet, Myrtle Hill, a historian at Queen’s University Belfast and Monica McWilliams from the Transitional Justice Institute, talked about and shared experiences of the women’s movement in Northern Ireland in the 1970s. They noted how the movement distanced itself from the political-party lines that were drawn and engaged in cross-community activism. More recently, the Northern Ireland Women’s Coalition created in 1996, also refused to align with one ideology and were designated as “other” within the Irish National Assembly.

Still, a reoccurring trend in the Northern Irish and Irish judgments was the construction of identity along political and sectarian lines, dividing the community into Protestants and Catholics or unionists and nationalists. In re White concerned the appointment of representatives to the Northern Ireland Parades Commission (overseeing the parades or marches that take place in Northern Ireland). Despite the fact that women took part in the parades and were affected by the parades that took place on their streets, in the original decision it was held that ‘representative of the community’ did not include representing women. Similarly, in the case of McGimpsey v Ireland the original judgment talks of majority and minority community (invoking the Protestant majority and the Catholic minority). There is no thought to those people who fell outside of these divides, in particular those people who were excluded by the community: in response to the 1978 draft Homosexual Offences (Northern Ireland) Order, the Democratic Unionist Party started a petition to “Save Ulster from Sodomy”.

The feminist judgments in the Northern/Irish Feminist Judgments Project demonstrate how these decisions could have been decided or reasoned differently to improve the place of women and minorities within society. Each judge had a different feminism and so had different methods of creating a feminist judgment. By placing women within the text of the judgment, by focusing on the specific gendered nature of the harm suffered, by telling the stories of the women involved or in the cases of In re White and McGimpsey v Ireland by reconceptualising ‘community’, the Northern/Irish Feminist Judgments Project is able to critique the original decisions. The Irish feminist judges are now challenging judicial decisions that had a negative effect on women and minority groups.

The Northern/Irish Feminist Judgments Project has been assisted by research from Zoe Carter and Eleanne Hussey (LSE) and Ellen Jepson from Gender and Law at DurhamThank you to the University of Ulster, Transitional Justice Institute and Law School for hosting and supporting the first workshop.

Northern/Irish Feminist Judgments: First Workshop 'The Foreign Subject'

A new Constitutional Settlement for Northern Ireland: Queries from International Law

287px-Uk_map_home_nations (1)This post was jointly written by regular contributor Aoife O’Donoghue and Ben Warwick. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights. 

The starting gun has been fired on constitutional debate in the UK. The prospect of Scottish independence, potentially increased powers for devolved governments, a new English Assembly, a re-formed relationship with human rights and a reformulation of the relationship with the EU, are all being more or less vigorously discussed. Whilst there has been some public debate about the constitutional issues facing the UK, there remain a number of covert agendas. Each of these agendas represents both threats and opportunities for Northern Ireland. The tendency to define constitutional changes by reference to internal factors is a misguided one. Such an approach neglects the significant external implications of internal debates. Rather, changes to the UK’s constitutional settlement must be situated in the broader regional and international political and economic context. The realities of modern globalisation and commerce, mean that external bodies and countries are both influenced by, and influencers of, ‘internal’ debates and thus cannot be ignored.

For England, and the UK, the electoral fortunes of the Conservative party lurk beneath the surface. Under threat from UKIP, and in arguably long-term decline, the Tories have sought to both capitalise and stave off threats from the Right. The party have undoubtedly seen an opportunity to separate unpopularity in Scotland (the party has just one MP out of 59 potential seats and in contrast to Labour), from relative success in England. Significant devolution to an English Assembly would likely leave the Conservatives (or at least the right of British politics) with a majority. This opportunism can explain changes of heart on devolution.

In Scotland, the covert agendas belong(ed) to the markets. Dominant economic actors vocally campaign(ed) against independence on the basis that it would harm jobs and the prosperity of Scots. This was an important consideration for many, but for the Boards of Directors and CEOs making the threats it was not the primary motivation. Rather, the continued profitability and favourable tax regime for corporations were the unspoken motivation for such a fight against Scottish independence. Companies were concerned, not with the general welfare of the Scots, but with the potential disruption to their healthy profits.

As ever for Northern Ireland, much remains unsaid. There is fear of covert and/or incremental changes that erode cultural identities and (Unionist/Nationalist) identity politics remain an on-going and dominating factor in debates. Besides the internal ‘blockages’, there are also external implications including repercussions for Northern Ireland’s voice in debates on human rights, economic powers, and the division of power in the UK. This is crucial, as a strong voice within the UK affects the province’s capacity to deal with the issues of austerity, social security, rural and urban poverty, policing and employment.

At the Conservative Party Conference in October there was a clearly voiced intention to introduce changes to the UK Human Rights Act (HRA) and the relationship with the European Convention on Human Rights and the associated European Court of Human Rights. It was stated that if changes to that relationship could not be made, a Conservative Government would withdraw from the Convention. As has been noted elsewhere this is a particularly pertinent issue for Northern Ireland as the Good Friday Agreement places the introduction of the HRA as central to its settlement.  Under the settlement the UK agreed to:

complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention,  including power for the courts to overrule Assembly legislation on grounds of inconsistency.

The Irish Government, in return, agreed to incorporate the ECHR into its law and there is no suggestion of a change. The Good Friday Agreement is partially a bilateral agreement between the UK and Ireland, the Conservative proposals would, if enacted, violate international law. Besides legality, courtesy would require the UK to consult with Ireland about such changes, perhaps with a view to releasing Ireland from its obligations. Given that there was a vote in both the Republic and Northern Ireland on the Good Friday Agreement, it is perhaps democratically questionable to change its terms without consulting both constituencies again.

Bordering on the EU

Of further consideration is the potential of the UK leaving the EU and its impact. As the Republic is outside Schengen there is little problem with the open status of the Ireland-UK border. Without wishing to ape the rather ridiculous depictions of what a border with an independent Scotland would look like, should the UK leave the EU and Ireland enters Schengen, it would make the open border problematic. In particular with a dominant aim of UK political actors being to stop inward migration, the border could not be as porous.  Whilst the Irish are (legally) not to be treated as ‘foreigners’ under the Ireland Act 1949 other EU citizens entitled to continue to come to Ireland may pose practical and political difficulties. Further, the entitlement of those born in Northern Ireland to dual citizenship is problematic. If an individual chose to register for an Irish passport they would be able to maintain their EU citizenship even if the UK left. This would be in stark contrast to other UK passport holders in Scotland, England or Wales.

Leaving the EU would also impact upon the Transatlantic Trade and Investment Agreement currently being negotiated with the USA. While there is not space here to discuss the many problematic elements of this trade deal, a UK that sat outside of the EU would leave Northern Ireland without preferential access to the USA. Leaving the EU would also put the UK in an entirely different position within the World Trade Organisation. While currently the UK is an individual member, all of its negotiations are conducted as one EU block. Therefore while the UK would stay as a member of the WTO, it would negotiate as a standalone state rather than part of the world’s biggest market. Again, as the Republic would remain part of the EU’s block in the WTO, it would maintain the many and varied benefits that the EU maintains due to its global economic power.

Goodbye Good Friday

A further indication of the external nuances of the UK’s current constitutional soul-searching lies with border polls. Whilst there has been much talk of a border poll in Northern Ireland, this has largely neglected the voice of the Republic. The Good Friday Agreement mandated a right to self-determination for the people of the Republic in the following terms:

it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

It is by no means certain that a vote in the Republic on the matter of unification would bring about a majority of yes voters. No vote took place when East Germany rejoined West Germany, partly because the German Constitution never gave up its claim to all of its territory. The Irish situation differs as a result of the changes to Articles 2 & 3 of the Irish Constitution. Further, it was by no means certain that the West Germans would vote to integrate their East German neighbours. The requirement of self-determination for North and South would mean that even if Northern Ireland voted for a unification of Ireland, there would be no certainty of a united Ireland

There are undoubtedly significant international effects that flow from a renegotiation of the UK’s constitutional position(s). Yet the current internalised approach to considering the constitutional issues is masking the broader effects. From human rights, to the EU, to the TTIP and the Good Friday Agreement, there are significant ramifications that urgently need discussed. Having these debates by reference to the Conservative Party’s self-interest, economic hegemonies, or identity politics can only lead to a transient conclusion to the international issues.

A new Constitutional Settlement for Northern Ireland: Queries from International Law

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

Rule of Law v National Security: The Big Fight Live

Hanging Boxing GlovesIn his understated way, Lord Justice Gross announced the latest round of the prize-fight that has defined so much of the debate on the role of the legal system in a liberal democracy since the 9/11 attacks (at [4]): “From time to time, tensions between the principle of open justice and the needs of national security will be inevitable.” This morning’s decision in Guardian Media v AB CD once again saw national security, long-running champion interest in the UK legal systems, take to the ring being heralded (at [4]) as “a national interest of the first importance”. Continue reading “Rule of Law v National Security: The Big Fight Live”

Rule of Law v National Security: The Big Fight Live

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

The Commonwealth and Sri Lanka: Perils of Joining Global Clubs

imagesThe recent Commonwealth Summit, held in Sri Lanka, attracted a tremendous amount of attention, far more than is normally paid to this organisation. Sri Lanka’s dismal human rights record during and since the final Governmental push against the Tamil Tigers in the north of the country has been well documented by the media, NGOs and the United Nations. While the human rights violations and war crimes committed in 2009 and the continuing humanitarian crisis remain unpunished the recent Heads of Government Summit meeting, chaired by Prince Charles, in the Queen’s absence, as head of the Commonwealth, offered an opportunity to the Commonwealth’s other members to reproach the Sri Lankan Government for its crimes and abuses. Three alternative approaches were taken. On one side India, alongside Canada and Mauritius boycotted the event in some form or altogether. Other states, most particularly the UK and Australia chose to attend but on the proviso that they would both visit the Tamil region and voice their concerns with the Sri Lankan Governments, while other states, perhaps the majority of members, chose to not bring the subject up at all. This raises the question of both membership of international organisations and the treatment of members by such organisations. Ought the organisation take a stand when its purported aims and purposes are clearly violated by a member or should it, like the United Nations, aim for universal membership in order to attain its full purpose.

The Commonwealth, as an international organisation, is in many ways unique. Unlike most other inter-governmental organisations it lacks legal personality and membership is based upon a very fluid idea of conforming with its aims of democracy, human rights and the rule of law as outlined in its Charter. It’s historical link to the British Empire no longer holds traction in its operation. This is reflected both in its name change from the British Commonwealth and the fact that some of its 53 members, for example Rwanda, are neither former colonies of the UK nor, upon membership, English speaking. While the Queen stands as its head, it also has a large number of Republics, for example India, among its members. While its most famous element is probably the Commonwealth Games, to be held next year in Glasgow, it does operate on a much broader platform which, as previously mentioned, aims to uphold democracy, human rights and the rule of law at its core, which might suggest that Sri Lanka may potentially have an issue with its membership. Historically, the Commonwealth has been active with regard to members meeting the these criteria, most particularly for violations of the Harare Declaration. Nigeria was suspended  following its execution of Ken Saro-Wiwa just prior to a Heads of Commonwealth Summit.  Pakistan has been suspended on several occasions, for example, following the military coup by Pervez Musharraf. Fiji have also been suspended several times. This appears to suggest that suspension for violations of the Harare Declaration, of both large and small members, for violations of democracy and human rights, even on the eve of summits, has a precedent for the organisation. It also suggests that holding a summit in the capital of a country that several members have cause to call for suspension from the organisation should raise serious questions for the organisation. Though, the present Director General of the organisation, Kamalesh Sharma appears not to regard it as such a serious issue, indeed it has been alleged that he did not pass legal advice that Sri Lanka had violated the Commonwealth Charter before the Summit;

In the time to come, I trust that people will see… that indeed very significant advances have been made in the interests of the people of Sri Lanka.

Of course the Commonwealth is not the first organisation to face such an issue. The United Nations, after an initial phase of Cold War politics on membership, delaying several states, including Ireland, from joining, has gone for universal membership. This is despite several member having been found to be in violation of the UN Charter under Chapter VII (Security Council binding resolutions) of the Charter. Articles 5 and 6 of the UN Charter allows for suspension or expulsion. There is no provision for leaving the UN in the Charter. Only one state Indonesia has sought to do so, but it sought to rejoin very quickly and was treated by the organisation as if it had not left. Several states have been excluded from UN activities, for example South Africa, under apartheid was excluded from General Assembly activities, while Serbia and Montenegro was prevented from acting as the successor state of Yugoslavia. The Council of Europe has never suspended a member although it has suspended Belarus from its guest status due to its undemocratic character. There is no provision for full suspension from the EU. Under Article 7 of the Treaty of the European Union there may be suspension of certain rights if a member persistently breaches the EU’s founding values (respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities).  This has never been used, though the 2000 election of the far right Freedom Party in Austria, came the closest. Within the African Union Egypt has been suspended since the coup of 2013, Madagascar since 2009, Guinea-Bissau since 2012 and Central African Republic since 2012. This makes the African Union the most active suspender of membership for violations of its Charter. This kind of activity by the African Union also precludes claims that such suspension is only a tool of Western States attempting to impose their standards on other countries.

The UK Government in explaining its rationale for attending the Summit, Prime Minister Cameron stated that:

I will be clear with Sri Lankan President Rajapaksa – it’s time the appalling & chilling events in his country are investigate

This was supplemented by Foreign Secretary William Hague’s argument that engagement is necessary to ensure that Sri Lanka permits an independent investigation (whether international or not appears to be unsettled) does hold some wait. Indeed it could be argued that like the United Nations it is better to have everyone present and debating than outside and not listening. Nonetheless, in an Organisation such as the Commonwealth, that has a history of suspension the lack of suspension in this case looks like a tacit agreement that what has happened does not reach the same standard of violation as committed by Nigeria, Pakistan or Fiji, yet arguably the Government in Sri Lanka’s continued actions are just as, if not more significant than these countries. The evidence produced by the United Nations is just one example of how clear the matter has now become. Further, in holding the summit in Colombo, it certainly seems to put clear water between it and those states previously suspended. This is a great pity as it places the Commonwealth’s recent position as a strong supporter of human rights into disrepute. While organisations can chose their courses of action when it comes to suspension, once a precedent is set, as it was here, to not take action has a much more serious consequence of enabling impunity to continue.

The Commonwealth and Sri Lanka: Perils of Joining Global Clubs

The Fog of Juridification, Functionality and Everything Foreign

Wounded soldiersWe are delighted to welcome this post from Jane Rooney on the recent report published by think-tank Policy Exchange on apparent  human rights infringements during battlefield operations. Jane is the Deputy Convener of Law and Global Justice at Durham and Ph.D. candidate at Durham Law School. On 18th October 2013, think tank Policy Exchange published a report entitled, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’[1] co-authored by Thomas Tugendhat and Laura Croft and which will inevitably form the basis of the next Strategic Defence and Security Review. The report was written as a reaction to Smith & Ors v The Ministry of Defence[2], a case brought to the Supreme Court by relatives of British soldiers who died whilst serving in Iraq, with the relatives successfully claiming for compensation under the Human Rights Act 1998. The report denounces the decision in this case, stating that it represents the culmination of a ‘legal siege’ over British military operations, ‘eroding freedom of movement on the battlefield.’[3]

The recommendations of the report can be summed up as proposing that Parliament legislate on Combat Immunity; that Parliament legislate to exempt the Ministry of Defence from the Corporate Manslaughter and Corporate Homicide Act; that the United Kingdom (UK) derogates from the European Convention on Human Rights (ECHR) during deployed operations; and that legal aid should be removed from lawsuits brought by foreign nationals against the UK government. The underlying narrative of these proposals is, firstly, that Parliament should intervene to control the ‘judicial activism’ or ‘judicial creep’ of the Courts and secondly, that ‘foreign courts’ should not be able to control domestic decision-making and foreign nationals should not be able to access English domestic courts, which form familiar rhetoric in the Conservative party agenda. But what is the main problem that the report intends to fix?

The report states that the problem is broadly that there is a creep of civilian law into the military and that international humanitarian law (IHL) provides the proper balance between protecting individuals and serving military effectiveness. In a recent blog post on the report[4] it was highlighted that the civilian law habitually applies in times of war and that they are not mutually exclusive from one another. Instead, that author pointed out that the ‘real problem’ was the effect of the extensive extraterritorial application of the ECHR and the indeterminate interrelationship between international human rights law and IHL. However, they do not constitute the problem so much as they constitute the reasons for a particular problem and again we must ask, what is the problem identified by the report?

The answer is in the Smith case itself. Two sets of claims were brought against the Ministry of Defence (MoD), the ‘Challenger claims’ and the ‘Snatch Land Rover claims’. The ‘Challenger claims’ were brought under negligence in respect of the death of one party and the injury of two others, which occurred during a friendly fire incident in a Challenger II tank taking part in the offensive on Basra in 2003. The ‘Snatch Land Rovers’ claims were brought under the Human Rights Act 1998 alleging that the MoD was in breach of the obligation to safeguard life protected by ECHR article 2 due to failing to take reasonable measures in light of the real and immediate risk of soldiers with patrolling obligations. In both instances, the MoD was found to have failed to provide adequate equipment for the protection of soldiers’ lives. In particular, Snatch Land Rovers had no protection against improvised explosive devices (IEDs) and having been withdrawn from the battlefield as the result of the death of soldiers seven months previous to the incident in question, were re-introduced by the MoD without further enquiry. The report seeks to highlight the dangers that do, and furthermore could, potentially flow as a result of enabling servicemen or women to claim against the MoD either by evading the law on Combat Immunity or claiming under the Human Rights Act.

What happens when servicemen or women or their relatives are allowed to claim against the MoD? What detriment ensues?

The first argument is that it will be expensive.  In the report, the compensation costs are not at the forefront of their concerns. It is the cost of the lawyers that will be required to act on behalf of the MoD which are of greatest concern.[5] With legal costs projected as amounting to £36 million a year, the litigation that ensues from claims against the MoD constitute another form of ‘lawfare’ attempting to cripple British security and military effectiveness.[6] Other costs identified in the report predominantly concern inquiries into the rights violations of foreign nationals in war zones which detract from the main subject matter at hand, which is whether Smith will result in an onslaught of compensation claims from injured servicemen and women and their relatives which will be financially impossible for the MoD to respond to. No figure is provided for the latter kinds of claims. We can deduce from this that this is not the main concern flowing from the Smith case. We need to look elsewhere to establish why the Smith case is so damaging to the military effectiveness of the British forces.

There are a number of assertions in the report which are paramount to explaining what the main concern is arising from the report:

“Lawsuits undermine the fundamental rationale for an armed force: the transfer of physical risk. At its core, this is what the military does. Volunteers…take up the burden of protecting society and remove the requirement for self-defence from the wider community.”[7]

Lord Hope’s reference to statements from the 2006 Parliamentary Assembly of the Council of Europe, that “members of the armed forces cannot be expected to respect humanitarian law and human rights in their operations unless respect for human rights is guaranteed within army ranks,”[8] is interpreted by the report as claiming that servicemen and women cannot voluntarily surrender their ECHR rights, and that the army cannot protect the rights of others if they do not have rights themselves.[9] It finds Lord Hope’s statement abhorrent stating that it is “surely wrong and demeaning to assert that Service personnel who voluntarily sacrifice some of their rights, albeit temporarily, are incapable of upholding the rights of others as a result.”[10]Aside from a blatant manipulation of words, there is the question of whether the servicemen and women (or their relatives) who attempt to bring actions against the MoD under the Human Rights Act did conceive of themselves as voluntarily surrendering all of their rights? It is most probable that they did not. But the entire assumption is that when servicemen and women conceive of themselves as having rights they pose a “mortal threat to the culture and ethos of the military which cannot be easily reversed.”[11]

Having deduced the main substantive point of the report it is particularly important to acknowledge how the report has attempted to detract from what could be conceived as a very unpopular assertion: that British servicemen and women have no right to have rights.

Firstly, the report is not about human rights concerns detracting from the obligations of the military during life or death situations: the “removal of the protections once granted to those who risked all for their country”[12] or to ensure that “commanders from the most junior upwards understand that decisions made in the confusion of battle will not be held to a standard designed for those who have never known such pressures.”[13]

 Secondly, it is not about the expansive approach taken to the extraterritorial application of the ECHR. Indeed the decisions of Al Skeini and Al Jedda represented a leap forward in extending the jurisdiction of signatories to the ECHR to protect individual rights, providing the flexible ‘public powers’ model which enabled for the requisite jurisdiction to be found with regard to isolated rights violations abroad, rather than merely allowing jurisdiction to be found when a state had ‘effective control’ of the territory of another state and therefore responsible for all rights violations in that territory, a much higher threshold to meet. However, engaging in an analysis of how one could attempt to limit the liability of states under the ECHR when acting abroad by invoking Article 15 ECHR, which allows for a state to derogate from most rights in ‘times of war or other public emergency threatening the life of the nation’, is a point of concern.[14]

The extraterritoriality jurisprudence was invoked in order to explain how it was that the Smith case ever became possible and we still have to make a value judgment about whether we agree or disagree with what Smith entails. Furthermore, applying Article 15 extraterritorially is not an impossibility. The Court merely stated in Bankovic, remarking upon the extraterritorial application of Article 15, that “Article 15 itself is to be read subject to the “jurisdiction” limitation enumerated in Article 1 of the Convention.”[15] Because of the expansion of the concept of jurisdiction under the ECHR, Article 15 could potentially be applied in the circumstances in Smith. (Even though on closer examination, ‘threatening the life of the nation’ could infer that Article 15 could only be applied domestically). One must think of the implications of enabling this provision to be effective. It would represent a very serious roll-back in human rights protection and the enforcement of state responsibility when states act abroad. Again, we must shift the emphasis away from the fact of extraterritoriality, which has not necessarily proved to be detrimental to military effectiveness itself, and look more closely at the ‘problems’ that purport to ensue from what it has enabled – the Smith case.

Thirdly, the report is not about ‘juridification’ of the military.[16] It is not about the myriad of assaults that the judiciary has allegedly committed against the military from many different fronts, with one facet being that it empowers servicemen and women to bring actions against the MoD. It is about the threat of a changing ethos which is admittedly facilitated by the judiciary, an ethos which propounds the humanity of soldiers fighting on the ground and the empowerment of those individuals to see themselves as such. Furthermore, the term ‘juridification’ is used to imply that it is self-evidently a bad thing and it is a reason not to trust any eventualities that flow from it. It is a reason not to afford rights to servicemen because those rights come from juridification. It is necessary to look behind this term and look at the substantive results of it in order to evaluate whether it does encroach upon the effectiveness of the military.

A smoke screen of juridification, foreign courts, foreign nationals, and functionality have effectively obscured the main substantive point of the report. It is necessary that the fog is parted and that the newly found rights protection for British servicemen and women, who are afforded inadequate equipment for their own physical safety when carrying out military operations abroad, remains intact.


[1] Thomas Tugendhat and Laura Croft, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’, Policy Exchange 2013

[2] Smith & Ors v The Ministry of Defence [2013] UKSC 41 (19 June 2013)

[3] The Fog of Law (n 1, p. 11)

[4] Aurel Sari, ‘Better Get A Lawyer: Are Legal Constraints Defeating Britain’s Armed Forces on the Battlefield?’ http://www.ejiltalk.org/author/asari/

[5] The Fog of Law (n 1, p. 35)

[6] Ibid.

[7] Ibid. p. 18

[8] Lord Hope, para 53, 54: Smith and Others v The Ministry of Defence [2013] UKSC 41

[9] Ibid. p. 31

[10] Ibid. p. 31

[11] Ibid. p. 11

[12] Ibid. p. 10

[13] Ibid. p. 11

[14] Better Get a Lawyer, n 4

[15] Banković and Others v. Belgium and Others [GC] (dec.), App. No. 52207/99, para 62

[16] Ibid. p. 16

The Fog of Juridification, Functionality and Everything Foreign

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