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CHRISTOPHER MICHAELSEN[*]
Abstract
This article assesses British and Australian legal responses to the threat from international terrorism since 11 September 2001 from an international human rights law perspective. Examining the United Kingdom’s Anti-terrorism, Crime and Security Act 2001 (UK) and the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth), it is argued that both pieces of legislation raise serious concerns in relation to international legal obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the United Nations International Covenant on Civil and Political Rights (ICCPR). Both international treaties allow for derogation from certain provisions in times of ‘public emergency’ (Article 15 ECHR/Article 4 ICCPR). While the United Kingdom has officially derogated from some of its treaty obligations, Australia has yet to submit a similar notification. This article argues, however, that the United Kingdom’s derogation is unlawful. Likewise, current circumstances in Australia would probably not permit lawful derogation from the ICCPR.
The tragic events of 11 September 2001 (hereinafter 9/11) have led to a dramatic change in the perception of international terrorism. The unthinkable turned into reality and it soon became clear that the so-called ‘war on terrorism’ was to be one of the defining conflicts of the early 21st century. Proclaiming that the attacks on New York City and Washington were a threat to international peace and security, the United Nations (UN) Security Council, acting under Chapter VII of the UN Charter, called on all States to redouble their efforts to prevent and suppress the commission of terrorist attacks, including denying safe haven to those who finance, plan or support terrorist acts.[1] Governments around the world answered the UN call by enacting new legislation as part of their campaign to combat international terrorism. Unfortunately, many of these new anti-terrorism laws curtail civil liberties and human rights. While it cannot be denied that it was (and still is) sensible and necessary to reassess existing laws in the light of the 9/11 attacks, doubts arise as to whether the fight against international terrorism can be won ultimately by introducing new repressive laws.
The difficult question of how to respond to terrorism has not only arisen with the attacks of 9/11. For more than 35 years, policy makers, academics and lawyers have been preoccupied with developing efficient counter-terrorism models. While they were unable to develop a foolproof blueprint for effective and democratically acceptable counter-measures, terrorism experts agreed almost unanimously that any campaign against terrorism, if it were to be successful, had to adhere strictly to liberal democratic principles and the rule of law.[2] As British scholar Paul Wilkinson, pointed out, ‘[t]he primary objective of any counter-terrorist strategy must be the protection and maintenance of liberal democracy’. He concluded that ‘[i]t cannot be sufficiently stressed that this aim overrides in importance even the objective of eliminating terrorism and political violence as such’.[3] The maintenance of democracy requires, most of all, unfailing respect for three of liberal society’s fundamental values: the rule of law, civil liberties and human rights. In the context of human rights it is essential to comply with fundamental legal principles established in important international treaties, such as the UN International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). As confirmed by the UN General Assembly in Resolution 54/164, ‘all measures to counter terrorism must be in strict conformity with the relevant provisions of international law, including international human rights standards.’ [Emphasis added.][4] Liberal democratic countries such as the United Kingdom and Australia, which have played a significant role in the development of human rights standards, bear a particular burden to uphold these rights even during the gravest of emergencies.
This essay assesses British and Australian legal responses to the events of 9/11 from an international human rights law perspective. It examines the United Kingdom’s Anti-terrorism, Crime and Security Act 2001 (UK) (hereinafter ATCSA) and the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (Cth) (hereinafter ASIO Bill). Central to this analysis is the question whether or not British and Australian anti-terrorism laws are consistent with their international legal commitments, specifically with provisions of the ECHR and the ICCPR. It is argued that several passages of the ATCSA and the ASIO Bill raise serious concerns with regard to obligations under the international instruments. In a subsequent section, attention is drawn to circumstances in which breaches of international human rights law may be legally justifiable. Both the ECHR and the ICCPR allow for so-called ‘derogation’ from treaty obligations in times of ‘public emergency threatening the life of the nation’. Yet, the validity of any derogation depends on the fulfilment of strict legal requirements set forth in the treaties and further developed by relevant jurisprudence of the international monitoring organs. While the United Kingdom has officially derogated from Article 5 of the ECHR and Article 9 of the ICCPR due to threats from international terrorism in late 2001, Australia has yet to submit a notice of derogation. However, it might be asked, is the British proclamation legally valid? Answering this question requires analysis in three stages. First, it is examined whether and to what extent ‘international terrorism’ can qualify as ‘time of public emergency threatening the life of the nation’. Second, the question is whether or not the United Kingdom has fully complied with the requirements for lawful derogation. Finally, the analysis focuses on whether current circumstances would permit an Australian derogation from the ICCPR.
Anti-terrorism legislation in the United Kingdom is, of course, nothing new. Confronted with terrorism and political violence in both Northern Ireland and on the British mainland for decades, the United Kingdom had a wide range of legislative counter measures in place even before 9/11.[5] The centrepiece of this legislative framework was the Terrorism Act 2000 (UK), which placed many of the (temporary) emergency provisions of the 1970s and 1980s on a permanent footing. Nevertheless, in light of the 9/11 attacks, existing anti-terrorism laws were found to be insufficient and the British Government introduced the ATCSA into Parliament on 12 November 2001.[6] The ATCSA is a lengthy piece of legislation consisting of 129 sections and eight schedules, and is portrayed by some observers as the ‘most draconian legislation Parliament has passed in peacetime in over a century.’[6] While the ATCSA contains a number of reasonable provisions dealing with important security safeguards (ie powers to freeze ‘terrorist’ assets or reinforcing powers concerning security in the nuclear industry), the central and most controversial part (Pt 4) introduces powers to detain ‘suspected international terrorists’ indefinitely and without trial.[8]
According to s21(1) of the ATCSA, the Secretary of State may issue a certificate in respect of a person if he or she reasonably believes that the person’s presence in the United Kingdom is a risk to national security and that the person is a terrorist. For the purposes of this section ‘terrorist’ is defined as:
a person who (a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism, (b) is a member of or belongs to an international terrorist group, or (c) has links with an international terrorist group (s21(2)).[9]
‘Terrorism’ has the meaning given by s1 of the Terrorism Act 2000 (UK).[10] The core of the ATCSA is to be found in s23(1). It provides that a ‘suspected international terrorist’, upon certification, may be detained indefinitely if either a ‘point of law’ or a ‘practical consideration’ prevents his removal from the United Kingdom.[11] The provision applies to persons subject to immigration control under the Immigration Act 1971 (UK), and therefore does not apply to British citizens.
The detention of foreign nationals under s23 of the ATCSA is incompatible with Article 5 of the ECHR.[12] Article 5 of the ECHR guarantees the right to liberty and security, and principally seeks to prevent arbitrary interference by a public authority with an individual’s personal liberty. Nevertheless, the European Convention permits deprivation of liberty on condition that deprivation measures are ‘in accordance with a procedure prescribed by law’. Of particular relevance in the present context is Article 5(1)(f), which allows for ‘lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’. The purpose of s23 of the ATCSA is to detain suspected international terrorists who cannot be removed from the United Kingdom due to a point of law, in this case Article 3 of the ECHR.[13] Hence, detainees under s23 of the ATCSA are persons against whom action is not being taken with a view to deportation. Section 23 of the ATCSA therefore is in breach of Article 5(1) of the ECHR and does not fall under the exception of Article 5(1)(f)[14] or any other paragraph of Article 5(1).[15] Because of the incompatibility of s23 of the ATCSA with Article 5(1) of the ECHR some conservative members of Parliament wanted Home Secretary Blunkett to consider withdrawing from the European Convention altogether.[16] The British Government, however, preferred to derogate formally from Article 5(1) of the ECHR and issued an order in accordance with Article 15(3) of the ECHR.[17] No derogations were notified in relation to any other obligation under the ECHR.[18]
According to s25(1) of the ATCSA, a ‘suspected international terrorist’ cannot appeal to a British court of law against his or her certification under s21 of the ATCSA. Appeal is only available to the Special Immigration Appeals Commission (hereinafter SIAC),[19] which has the power to cancel the certificate if it believes that it should not have been issued in the first place.[20] This limited access to judicial review is in breach of Article 5(4) of the ECHR. Article 5(4) of the ECHR states that ‘[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.
SIAC is not a typical court of law integrated in the standard British court system. However, in X v United Kingdom, the European Court of Human Rights held that in the context of Article 5(4) of the ECHR ‘the word “court” is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country’. The term rather serves to denote ‘bodies which exhibit not only common fundamental features of which the most important is independence of the executive and of the parties of the case, but also the guarantees ... of [a] judicial procedure’.[21] While SIAC has been established as an impartial and independent tribunal with the same status as the High Court, and thus undoubtedly provides some degree of control, serious doubts arise as to whether proceedings before it offer sufficient guarantees of judicial procedure.
The European Court of Human Rights found it essential that the person concerned be present at an oral hearing, where he or she has the opportunity to be heard either in person or through a lawyer, and the possibility of calling and questioning witnesses.[22] In Bouamar v Belgium, for instance, the Court held that hearings before a juvenile court — undoubtedly a ‘court’ from the organisational point of view — conducted in the absence of the applicant’s lawyers did not satisfy the requirements of Article 5(4) of the ECHR.[23] Also required is the benefit of an adversarial procedure ensuring equality of arms.[24]
Proceedings before SIAC may be held in the absence of the appellant and/or his or her counsel. The detainee and his or her legal representatives will not be entitled to see all the evidence and will not be informed in detail about the reasons for the decisions that have been made in respect of him or her. Furthermore, the appellant’s legal representatives will be chosen for him or her by the Attorney–General and will not be responsible to the appellant.[25] Proceedings before SIAC therefore do not offer sufficient guarantees of judicial procedure and cannot be considered a ‘court’ within the meaning of Article 5(4) of the ECHR.
In contrast to the United Kingdom, Australia has had little or no experience of terrorism, and before 9/11 there were no Australian laws dealing specifically with terrorism.[26] A first package of anti-terrorism legislation, comprising five bills, was introduced into the Federal Parliament on 12 March 2002.[27] The most important bill of this first package was the controversial Security Legislation Amendment (Terrorism) Bill 2002 (Cth), which passed Parliament and the Senate only after it had been amended substantially to include recommendations by the Senate Legal and Constitutional Legislation Committee.[28] The second cornerstone of Australia’s new anti-terrorism laws was meant to be the ASIO Bill. Its main purpose was to authorise the detention by ASIO of persons for questioning in relation to terrorism offences, as well as the creation of new offences in respect to withholding of information regarding terrorism. The ASIO Bill was first introduced into Parliament on 21 March 2002 and was likewise subject to heated discussion.[29] While Attorney–General Daryl Williams was convinced that the new legislation would enable ASIO ‘to engage in an appropriate form of interrogation’[30] to gather relevant information for the prevention of terrorist attacks, critics argued that the bill was ‘rotten to the core’ and would establish ‘part of the apparatus of a police state’.[31] After contentious debate in the Senate, the Bill was referred to the Senate Legal and Constitutional Affairs References Committee for a public inquiry and report. Still, it was rejected by the Senate on 13 December 2002. The Bill was reintroduced into Parliament in late March 2003, subject to a number of minor amendments. After intense negotiations between the Government and the Opposition, the revised Bill finally passed the Senate on 26 June 2003.[32]
The ASIO Act authorises ASIO to seek a warrant to detain and question people for up to 24 hours. The person detained does not need to be suspected of any offence. People can be taken into custody without charges being laid or even the possibility that they might be laid at a later stage. According to s34D(1), it is sufficient that the ‘issuing authority’ has ‘reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence’. An ‘issuing authority’ is defined as a person, appointed by the Minister, who is a federal magistrate or a judge, who has consented to being appointed (s34AB). The warrant either requires a person to appear before a ‘prescribed authority’ to provide information or produce records or things or authorises a police officer to take the person into custody and bring him or her before a ‘prescribed authority’ for such purposes.[33] While a single warrant must not exceed 24 hours, it is possible to extend detention by requesting successive warrants. In total, the successive extensions may not result in a continuous period of detention of more than 168 hours (7 days) from the time the person first appeared before any ‘prescribed authority’ for questioning under an earlier warrant (s34D(3)(c).
The detention of non-suspects authorised by a non-judicial body for the mere purpose of questioning is incompatible with Australia’s international human rights commitments, specifically obligations under the ICCPR.[34] Article 9(1) of the ICCPR states that ‘[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention’. Referring to the ICCPR’s travaux préparatoires, Manfred Nowak pointed out that the term ‘arbitrary’ is not to be equated with ‘against the law’ but includes elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality.[35] Confirming this interpretation, the Human Rights Committee stated in Van Alphen v The Netherlands that detention ‘must not only be lawful but reasonable in all the circumstances’ and ‘must be necessary in all the circumstances, for example to prevent flight, interference with evidence, or the recurrence of a crime’. [Emphasis added.][36] It is difficult to see how the detention of non-suspects for the purpose of questioning and intelligence gathering can be regarded as ‘necessary and reasonable in all the circumstances’ when:
1. ASIO confirmed in April 2002 that ‘there is no known specific terrorist threat to Australia at present’.[37] Although Australia was a possible target, there were ‘a series of other countries more at risk of attack’, among them the United States and the United Kingdom.[38] Nonetheless, neither the United States nor the United Kingdom have felt compelled to introduce legislation that facilitates the detention of non-suspects for mere questioning purposes.
2. Even in circumstances where detention for questioning purposes is considered to be indispensable, there is no clear reason why such detention should not be strictly confined to those reasonably suspected of being terrorists or being involved in terrorist activities.
3. The ASIO Act, falls short of providing sufficient safeguards. Comparable legislation in Canada, for example, requires that a regular judge — independent from the executive — must make out the orders for so-called investigative hearings.[39] In the absence of similar provisions, the Australian proposals lack any necessity, reasonableness and proportionality in ‘all the circumstances’, specifically as response to a possible terrorist threat. In consequence, detention powers under the ASIO Act may be held to constitute arbitrary interference with the individual’s right to liberty and security as protected by Article 9(1) of the ICCPR.
The detention of non-suspects is not only unnecessary and disproportionate but also breaches Article 9(3) of the ICCPR. Article 9(3) requires that ‘[a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release’. Under the ASIO Act, persons are not detained on criminal charges, but for questioning purposes. However, it would be inconsistent with the ICCPR’s underlying principles if it granted greater rights to persons officially arrested on criminal charges than to those who are compulsorily detained for questioning in relation to terrorism offences. Article 9(3) therefore is also applicable to administrative detention for questioning purposes. As the Human Rights Committee stated in its General Comment 8, prompt appearance before a judge or other officer authorised by law to exercise judicial power requires that the period before appearance ‘must not exceed a few days.’[40] In Freemantle v Jamaica, a four day delay in bringing the detainee before a judge was found to violate Article 9(3) of the ICCPR.[41] Similarly, the European Court of Human Rights held in Brogan v United Kingdom that four days and 6 hours was too long to satisfy the requirement of ‘promptness’.[42] ASIO Act provisions allow for detention for up to 168 hours (7 days) without judicial oversight at all. These arrangements constitute a serious breach of Article 9(3) of the ICCPR.
A further point of concern is that a ‘prescribed authority’ oversees the detention of persons for questioning purposes.[43] Regarding Articles 9(3) and 9(4) of the ICCPR and Articles 5(3) and 6 of the ECHR, both the Human Rights Committee and the European Court have confirmed that the functions prescribed therein can only be carried out by a judicial body and not by quasi-judicial substitutes.[44] The ‘prescribed authority’, however, is a retired or current judge, or a President or Deputy President of the Administration Appeals Tribunal, appointed by the Minister under s34B. It may be argued that, as personae designatae, they are dependent on the favour of the executive if they wish to be reappointed. As an administrative body it is even ‘less’ judicial than the British SIAC. Rather it is similar to a British non-judicial body known as the ‘three wise men’. The ‘three wise men’ acted as a review of the Home Secretary’s decisions to remove aliens from the United Kingdom whose presence was deemed to be ‘not conducive to the public good’ for reasons of national security. The European Court held in Chahal v United Kingdom that the system of the ‘three wise men’ contravened the European Convention and that the national authorities could not be ‘free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved.’[45] In consequence, the ‘prescribed authority’ as established in the ASIO Act cannot be considered a ‘court’ or ‘officer authorised by law to exercise judicial power’ within the meaning of Articles 9(3) and 9(4) of the ICCPR.[46]
Section 34G of the ASIO Act contains offences (five years imprisonment) for failing to give the information, record or thing requested in accordance with the warrant. ‘Strict liability’ attaches to this offence and the detainee bears the burden of proof to establish that he or she does not have the information sought.[47] In effect, these provisions remove the right to silence and reverse the onus of proof. Moreover, while the Act protects the detainee against direct use of answers in criminal proceedings against him or her (except in proceedings for an offence against s.34G), it does not provide protection from derivative use of any answers in future proceedings. This means, for example, that if the police forces find evidence based on the person’s answers during questioning (eg by later finding incriminating material at the person’s premises), this evidence may be used against the person in criminal proceedings. These provisions breach the non-derogable right to be presumed innocent until proven guilty enshrined in Article 14(2) of the ICCPR and also recognised in Article 11 of the Universal Declaration of Human Rights and Article 6 of the ECHR. Article 14(3)(g) of the ICCPR further clarifies that the accused has the right ‘[n]ot to be compelled to testify against himself or to confess guilt’. In Saunders v United Kingdom the European Court of Human Rights found that the right of any person charged to remain silent and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure. The rationale of both rights lies, inter alia, in protecting the person charged ‘against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6’ of the ECHR (right to a fair trial). In consequence, the Court held that it was a violation of Article 6 of the ECHR to admit evidence during a criminal trial, which had been obtained at an earlier administrative hearing during which the accused had been compelled by statute to answer questions and adduce evidence of a self-incriminatory nature.[48] Similarly, the Human Rights Committee pointed out in its General Comment 13 that:
[i]n order to compel the accused to confess or to testify against himself, frequently methods which violate these provisions (Article 14 ICCPR) are used. The law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable [Emphasis added].[49]
The fact that the Human Rights Committee specifically used the term ‘wholly’ indicates that Article 14 of the ICCPR not only prohibits use immunity but also derivative use immunity. Section 34G of the ASIO Act is therefore in breach of Article 14 of the ICCPR.
Finally, and most disturbing, the ASIO Bill also permits the detention of children. Section 34NA provides that a person between the ages of 16 and 18 can be detained for questioning purposes if it is likely that this person ‘will commit, is committing or has committed a terrorism offence’. While these powers raise utmost ethical concerns, they may also violate essential provisions of the UN Convention on the Rights of the Child to which Australia became a party in 1991. In particular, it breaches Article 37(b) which provides that no child should be deprived of his or her liberty arbitrarily and that any detention should ‘be used only as a measure of last resort and for the shortest appropriate period of time’. [Emphasis added.][50] Furthermore, any child is to be presumed innocent until proven guilty.[51]
In addition to several limitation clauses governing certain individual rights, both the ECHR and ICCPR contain a derogation clause with specific standards for emergencies.[52] While the State parties may not derogate from the entire treaty, they may legally suspend their obligation to respect and enforce specific rights contained in the convention during times of ‘war or other public emergency threatening the life of the nation’.[53] In other words, not all rights enshrined in the ICCPR or ECHR are absolute. In exceptional circumstances, State parties are permitted to take measures that interfere with the enjoyment of rights otherwise protected by these instruments. Yet, even during the gravest of emergencies a number of rights are strictly ‘non-derogable’ on the grounds that they are too fundamental and too precious to be dispensed with. The ICCPR’s and ECHR’s derogation articles’ purpose is thus to balance the most vital needs of the state in times of crisis with the strongest protection of human rights possible. The derogation’s validity depends on the fulfilment of several legal requirements. First, the derogating government must establish the existence of a ‘public emergency threatening the life of the nation’. Second, the ‘public emergency’ must be officially proclaimed and relevant treaty organs must be notified. Third, the measures, which derogate from any obligation under the treaty, must only be to the extent strictly required by the exigencies of the situation. Finally, these measures must neither be inconsistent with other obligations under international law nor discriminatory.
The ICCPR and ECHR both lack a specific definition of ‘time of public emergency threatening the life of the nation’. Nevertheless, the international monitoring organs established under the treaties, notably the European Court and Commission (the Strasbourg authorities), have extensively interpreted the term and provided jurisprudence valuable for determining its meaning and scope. As the Strasbourg authorities tend to examine Article 15 in its natural and common sense, and due to the fact that many provisions in the ICCPR and ECHR are similar, in particular the derogation clauses, European decisions and findings are readily applicable to ICCPR cases.
The first substantive interpretation of Article 15 of the ECHR was made in Lawless v Ireland.[54] Confirming the European Commission’s determination that Article 15 should be interpreted in the light of its ‘natural and customary’ meaning, the European Court of Human Rights defined ‘time of public emergency’ as ‘an exceptional situation of crisis or emergency which afflicts the whole population and constitutes a threat to the organised life of the community of which the community is composed’.[55] The definition was further developed and clarified in the Greek case.[56] Reaffirming the basic elements of the Court’s approach in Lawless v Ireland, the Commission emphasised that the emergency must be actual or at least ‘imminent’, a notion that is present in the Merits judgment in French (authentic version) but not in the English version.[57] In order to constitute an Article 15 emergency, the Commission held that a ‘public emergency’ must have the following four characteristics:[58]
1. It must be actual or imminent.
2. Its effects must involve the whole nation.
3. The continuance of the organised life of the community must be threatened.[59]
4. The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by Convention for the maintenance of public safety, health and order, are plainly inadequate.[60]
As stated by the European Commission in the Greek Case, and by the Human Rights Committee in its General Comment 29, the State Parties bear the burden of proof in establishing the existence of a ‘public emergency’.[61] However, in assessing whether a ‘public emergency’ exists and what steps are necessary to address it, States are granted a so-called ‘margin of appreciation’. The doctrine of margin of appreciation thus illustrates the general approach of the international organs to the difficult task of balancing the sovereignty of Contracting Parties with their obligations under the Convention.[62] In the context of derogation in times of ‘public emergency threatening the life of the nation’, the margin of appreciation represents the discretion left to a State in ascertaining the necessity and scope of measures of derogation from protected rights in the circumstances prevailing within its jurisdiction.[63] In Ireland v United Kingdom, the European Court held that:
[i]t falls in the first place to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article 15(1) leaves the authorities a wide margin of appreciation. [Emphasis added.][64]
Yet, the Court stressed that states do not enjoy an unlimited margin of appreciation. The discretion of the State is ‘accompanied by a European supervision’.[65] The Strasbourg Court generally seems prepared to grant a much wider margin of appreciation than the monitoring organ of the ICCPR, the Human Rights Committee. In Landinelli Silva v Uruguay, for instance, the Committee found that ‘the State Party is duty-bound to give a sufficiently detailed account of the relevant facts when it invokes Article 4(1)’ and that it is the Committee’s function ‘to see to it that States parties live up to their commitments under the Covenant.’[66]
Article 4(1) of the ICCPR requires that the existence of a public emergency be ‘officially proclaimed’. As explained by the Human Rights Committee in its General Comment 29, states ‘must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers’.[67] Failure to comply with this requirement constitutes a violation of international law. This legal effect distinguishes the proclamation from the international duty to notify under Article 4(3) and Article 15(3). As Manfred Nowak observed, the latter is not a necessary condition of the lawfulness of emergency measures, but serves only the purpose of supervision by the international monitoring organs.[68] Surprisingly, the requirement of official proclamation does not appear expressly in the ECHR. Indeed the European Court in the Lawless case found that Article 15 does not oblige ‘the State concerned to promulgate the notice of derogation within the framework of its municipal laws.’[69] However, Article 15 also provides that any derogation measure must be consistent with other obligations under international law. As a consequence, it appears that states party to both the ECHR and the ICCPR would still have to fulfil the requirement of ‘official proclamation’. Among others, this issue arose in Brannigan and McBride v United Kingdom [1993] ECHR 21; (1993) 17 EHRR 539. Intervening NGOs challenged the United Kingdom’s declaration of a state of emergency on the grounds that it was not ‘officially proclaimed’. However, the European Court was satisfied that the detailed explanation by the Home Secretary in the House of Commons was sufficient to comply with the proclamation requirement. In any case, declarations of ‘public emergency’ must be made in good faith. Although not explicitly expressed in the derogation clauses themselves, the good faith principle can be derived from certain other provisions of the two treaties, which provide that no state may perform any act aimed at the destruction or undue limitation of rights and freedoms protected by the instruments.[70] It is also recognised in Principle 62 of the Siracusa Principles, which states that any proclamation of a public emergency not made in good faith constitutes a violation of international law.[71]
A fundamental requirement for any measures derogating from the ECHR or the ICCPR is that such measures are limited ‘to the extent strictly required by the exigencies of the situation’.[72] In other words, derogation measures must be strictly proportionate. The principle of proportionality constitutes a general principle of international law and includes elements of severity, duration and scope.[73] It is equally applied by the Strasbourg authorities and the Human Rights Committee, yet with slightly different nuances.[74] Any derogation measure must fulfil the following five basic requirements:
1. The measures must be necessary, ie actions taken under ordinary laws and in conformity with international human rights obligations are not sufficient to meet the threat.
2. The measures must be connected to the emergency, ie they must ‘prima facie’ be suitable to reduce the threat or crisis.
3. The measures must be used only as long as they are necessary, ie there must be a temporal limit.
4. The degree to which the measures deviate from international human rights standards must be in proportion to the severity of the threat, ie the more important and fundamental the right which is being compromised, the closer and stricter the scrutiny.
5. Effective safeguards must be implemented to avoid the abuse of emergency powers. Where measures involve administrative detention, safeguards may include regular review by independent national organs, in particular, by the legislative and judicial branches.
In determining whether derogation measures are strictly required by the exigencies of the situation, a certain ‘margin of error’ must be granted to the national authorities. In other words the doctrine of margin of appreciation is applicable, not only in the process of assessing the existence of a ‘public emergency’, but also in the context of proportionality. The European Court held in Ireland v United Kingdom that it falls to the Contracting Party to determine ‘how far it is necessary to go in attempting to overcome the emergency’.[75] Again, Strasbourg seems to grant a substantial amount of discretion to national governments. On the other hand, the Siracusa Principles explicitly state that the principle of strict necessity shall be applied in an ‘objective manner’ and, moreover, that ‘the judgment of the national authorities cannot be accepted as conclusive’.[76]
Article 4(1) of the ICCPR also states that derogation measures may not be inconsistent with other obligations under international law. Furthermore, they may not involve discrimination ‘solely on the ground of race, colour, sex, language, religion or social origin’. The ICCPR’s travaux préparatoires indicate that some delegations suggested extending the non-discrimination clause to include the criteria of national origin. The proposal, however, was rejected on the grounds that disparate treatment of enemy aliens would be necessary during wartime. While the principle of consistency also appears in Article 15 of the ECHR, the non-discrimination passage is missing in the European derogation clause. Nevertheless, the absence of the non-discrimination principle in Article 15 of the ECHR effectively has no major consequences, as discriminatory application of derogation measures is in most cases incompatible with the general non-discriminatory provision of Article 14 of the ECHR.[77] Moreover, arbitrary discrimination against disfavoured groups of various types would be usually difficult to justify as being ‘strictly required by the exigencies of the situation’. In contrast to Article 4(1) of the ICCPR, Article 14 of the ECHR also prohibits discrimination on the basis of national origin.
Circumstances which can provoke the proclamation of a ‘public emergency’ were originally considered to involve war, internal unrest, natural disasters or economic crises.[78] The phenomenon of terrorism was not contemplated when the ECHR and the ICCPR were drafted in the aftermath of World War II. Yet, all cases that have reached the European Court of Human Rights on Article 15 of the ECHR have concerned threats to internal security arising from acts of terrorism. In Lawless, Ireland v United Kingdom, and Brannigan and McBride, the governments’ declarations of ‘public emergency’ were triggered by terror campaigns of the Irish Republican Army and their Unionist counterparts. Both Catholic and Protestant terrorist organisations were operating in Northern Ireland and, to a lesser extent, in England. Unlike these traditional forms of terrorism, however, the threat from Islamic extremism is not limited by geography. Terrorism today is a complex and global problem, not necessarily a localised and domestic one. As the United States Coordinator for Counterterrorism, Ambassador Francis X Taylor, pointed out, ‘small cells of terrorists have become true transnational threats — thriving around the world without any single state sponsor or homebase. [Emphasis added.]’[79] Moreover, unlike its previous manifestations, contemporary terrorism is hardly attributable to a confined number of terrorist organisations, even though it has been mainly associated with Al–Qaeda.[80] In other words, the threat scenario is much more diffuse and abstract. Most experts therefore expect the ‘war on terror’ to last for many years, with Islamic fundamentalist terrorism remaining a menace of profound concern. An important question that now has to be asked is: What implications do these findings have for the interpretation of international human rights treaties, specifically in the context of derogations due to threats from international terrorism?
In most circumstances the existence of a ‘public emergency threatening the life of the nation’ is or will be claimed in relation to a threat. In consequence, there has to be an assessment of the risk of the execution of the threat, as well as its seriousness. This assessment has to be conducted on a case-by-case basis. Because the terrorist threat is usually ‘international’ and non-specific, the government’s burden of justification in respect of the existence of a ‘public emergency’ is particularly high. In addition, the margin of appreciation granted to individual States in assessing the existence of a ‘public emergency’ and the proportionality of response measures need to be reconsidered and adjusted. The more global and non-specific the threat, the less the amount of discretion left to the State. As the threat of international terrorism is global, national authorities are not necessarily in a better position to decide on the imminence of a ‘public emergency’. Quite the opposite: other countries might even have superior intelligence on specific terrorist threats. Consequently, reactions and perceptions of other States have also to be taken into account. As far as the threat level in European countries is concerned, it is significant that an overwhelming majority of Council of Europe states have not regarded the actual terrorist threat to be of sufficient gravity to meet the ‘public emergency’ criteria and find enough flexibility in the ECHR’s standards to accommodate any special provisions for counter-terrorist purposes. Besides, in its Resolution 1271 (2002), the Parliamentary Assembly of the Council of Europe called upon all member states ‘not to provide for any derogation to the European Convention of Human Rights’ and to ‘refrain from using its Article 15 to limit rights and liberties guaranteed under its Article 5 (right to liberty and security)’. [Emphasis added.][81] This can be seen as an indication that, at present, the threat from international terrorism in Europe should not be considered as constituting an Article 15 emergency.
At the time of writing there have been no terrorist incidents directly attributed to Islamic extremism in the United Kingdom or anywhere else in Europe.[82] Terrorist attacks believed to have been conducted by Al–Qaeda took place in Kenya, Tanzania, Yemen, Saudi Arabia, Tunisia, and, on 11 September 2001, in the United States. In consequence, the current situation is completely different to the United Kingdom’s position in Northern Ireland, which the European Court of Human Rights found to constitute an Article 15 ECHR ‘public emergency’. Between 1972 and 1992, over 40 000 terrorist incidents related to the Northern Ireland conflict caused approximately 3000 deaths and injured thousands more. [82] This level of atrocity is clearly on a much greater scale than the international terrorism, which has afflicted the United Kingdom since 9/11. Terrorism at that time was occurring on a regular basis over a long period of time directly affecting the day-to-day lives of British citizens and creating a certain kind of general panic. Although it may be said that there is real concern among the population regarding acts of international terrorism, the level of public anxiety is in no way comparable to the fear caused by Northern Ireland related terrorist incidents. Moreover, those terrorist activities were directly connected to the affairs of the British Government. In contrast, Islamic extremist terrorism, for the most part, finds its roots in the Israeli-Palestinian conflict and American military presence in the Arab world.[84] Apparently recognising these fundamental differences, the United Kingdom’s claim of the existence of an Article 15 ECHR emergency is not based on the actual existence of a ‘public emergency’ but rather on imminent threats from international terrorism. As the ‘public emergency’ is being claimed in relation to a threat, the United Kingdom bears a heavy burden to establish that it is facing the risk of an immediate execution of this threat. Yet, Home Secretary David Blunkett and several other government officials stated repeatedly on a number of occasions that there was ‘no immediate intelligence pointing to a specific threat to the United Kingdom’.[85] If the threat is neither immediate nor specific, then how can there be a ‘public emergency threatening the life of the nation’?
The British claim of the existence of a ‘public emergency’ rests mainly on the assumption that, as a result of its strong support for the United States and Israel, even before the war in Iraq, the United Kingdom has become a potential target. However, in its submission to the Council of Europe, the United Kingdom did not explain why it should be more affected than other major European countries, which are also close allies of the United States. Given the exceptionality of measures, and the fundamental importance of Article 5 of the ECHR (right to liberty and security), such clarification would have been necessary. In the absence of sufficient explanation, it remains questionable whether there is a ‘public emergency’ within the terms of Article 15 of the ECHR existing at this time. It is also significant that the Human Rights Committee, in its concluding observations dated 2 November 2001, following the examination of the United Kingdom’s fifth periodic report on the implementation of the ICCPR, expressed ‘concern’ about the British government’s proposals to derogate.[86]
Nonetheless, in A and others v Secretary of State for the Home Department, SIAC held on 30 July 2002 that the United Kingdom government was:
entitled to form the view that there was and still is a public emergency threatening the life of the nation and that the detention of those reasonably suspected to be international terrorists involved with or with organisations linked to Al Qa’ida is strictly required by the exigencies of the situation.[87]
On this issue, the Court of Appeal upheld SIAC’s judgment on 25 October 2002. However, apart from the general finding that ‘no other European nation is threatened in quite the same way’, neither SIAC nor the Court of Appeal explained why the United Kingdom should be distinguished from its neighbours.
A State Party derogating from the ECHR or ICCPR must issue the proclamation of ‘public emergency’ in good faith.[88] Equally, restoration of a state of normalcy, where full respect for the international instruments can again be secured, must be the predominant objective of derogation.[89] On 12 November 2001, Home Secretary David Blunkett publicly declared a ‘state of emergency’. At the same time, Blunkett told the Guardian that the declaration was not a response to any imminent terrorist threat, but rather a ‘legal technicality’, necessary to ensure that certain anti-terrorism measures that contravene the ECHR could be implemented.[90] Moreover, in a statement to Parliament on 15 October 2001, Blunkett said that there was ‘no immediate intelligence pointing to a specific threat to the United Kingdom’. The Home Secretary’s public pronouncements therefore raise grave concerns that the United Kingdom sought to derogate from its international human rights obligations in the absence of conditions qualifying as a bona fide state of emergency.[91]
Doubts also arise as to whether British measures are ‘strictly required by the exigencies of the situation’.[92] First, it is generally questionable whether powers contained in ss21–23 of the ATCSA are strictly necessary. In Aksoy v Turkey the European Court of Human Rights found that not even the undoubted ‘public emergency’ in southeast Turkey could justify the detention of the applicant for 14 days, without sufficient judicial control, on suspicion of involvement in terrorist offences.[93] In the light of the Aksoy decision it is difficult to ascertain how indefinite detention of suspected international terrorists can be ‘strictly required’, even in circumstances that amount to an Article 15 emergency. Moreover, the United Kingdom government has not established why actions taken under existing laws and in conformity with international human rights obligations are not sufficient to meet the terrorist threat. The Terrorism Act 2000 (UK), for instance, provides extensive powers for the arrest and prosecution of those reasonably suspected of being involved in terrorism. In particular, s41(1) of the Terrorism Act states that ‘[a] constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist’.
Second, the principle of proportionality requires the government to demonstrate that the measures impair the right at issue, in this case, the right to liberty and security, as little as reasonably possible in order to achieve the legislative objective. The ATCSA’s purpose is to protect the United Kingdom from acts of international terrorism. Central to the introduction of the Act is the assumption that the United Kingdom could be subject to an attack of the magnitude of the 9/11 atrocities. The 9/11 attacks on the United States are believed to have been carried out by Al–Qaeda, the only international terrorist organisation at the time considered to be capable of conducting large-scale terrorist operations. Indeed, the British government found that ‘[n]o other organisation has both the motivation and the capability to carry out attacks like those of the 11 September — only the Al Qaida network under Usama bin Laden’.[94] The claim of the existence of a ‘public emergency’ is consequently dependant on the threat posed by the Al–Qaeda network. However, ss21–23 of the ATCSA do not only apply to suspected terrorists associated with the Al–Qaeda group, but to all international terrorists, whether they threaten the national security of the United Kingdom or other states altogether.[95] In other words, ATCSA provisions facilitate, for instance, indefinite detention of suspected Tamil Tigers or operatives from the Kurdish PKK and cover even persons that only have ‘links’ to the aforementioned organisations.[96] The scope of detention powers therefore goes well beyond what could be reasonably considered as ‘strictly required by the exigencies of the situation’.
Third, as only the Al–Qaeda network has the ‘motivation and capability’ to pose a threat to the security of the United Kingdom constituting an Article 15 emergency, the government bears the burden to establish evidence for the continuing operational effectiveness of the terrorist organisation. A failure to do so would result in current measures being no longer strictly required by the exigencies of the situation. After an allegedly successful military campaign in Afghanistan, the detention of several Al–Qaeda fighters in Guantanamo Bay and the capture of the suspected mastermind of the 9/11 attacks in Pakistan in February 2003, a long-time CIA terrorism official and now head of the State Department’s counter-terrrorism office, Cofer Black, described the Al–Qaeda leadership’s losses as ‘catastrophic’ and pointed out that the broader network ‘has been unable to withstand the global onslaught’ of counter-terrorism operations.[97] President George W Bush, in a speech on 5 May 2003, noted that ‘...about half of all the top Al–Qaeda operatives are either jailed or dead’ and that ‘in either case, they’re not a problem anymore.’[98] The President’s judgment might be overly optimistic as it cannot be ruled out that terrorists associated with the Al–Qaeda network will conduct further attacks in the future. However, in the light of these statements and the allegedly successful counter-terrorism operations, it seems questionable whether al–Qaeda can nonetheless pose a threat to the United Kingdom which is so potentially serious that it requires extraordinary powers as set forth in ATCSA.[99]
Fourth, the ATCSA measures are disproportionate in the sense that they do not provide sufficient safeguards to avoid abuse of emergency powers. Detention orders are subject only to an appeal to SIAC rather than to a regular court of law. SIAC was originally instituted to hear appeals against immigration and deportation decisions that have been taken on national security grounds. It is not designed to deal with issues of indefinite detention.[100] Furthermore, SIAC proceedings lack fundamental guarantees of judicial procedure.[101] Given the fundamental importance of the right to liberty and security (Article 5 ECHR/Article 9 ICCPR), it is not strictly required by a public emergency, allegedly caused by threats from international terrorism, to deny suspected international terrorists basic judicial principles, such as the right to a fair hearing or trial.
In A and Others v Secretary of State for the Home Department, both the Court of Appeal and, to a lesser extent, SIAC were reluctant to exercise close scrutiny as to whether measures under the ATCSA were ‘strictly required by the exigencies of the situation’. Referring to Home Secretary v Rehmann[102] and Brown v Stott,[103] the Court of Appeal held that:
[d]ecisions as to what is required in the interest of national security are self-evidently within the category of decisions in relation to which the court is required to show considerable deference to the Secretary of State because he is better qualified to make an assessment as to what action is called for’.[104]
While it appears that the Court uses the deference to the Home Secretary’s decision as a substitute for coherent legal analysis of the issues at stake, this finding is also inconsistent with European case law. Although granting a certain margin of appreciation to governments, the European Court of Human Rights expressly stated that this does not mean that national authorities could be ‘free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved’.[105] This implies that the amount of discretion, which is left to the executive by a domestic court, is much less than the discretion that is granted by the European Court.
As indicated, derogation measures must fulfil the requirements of consistency and non-discrimination. The United Kingdom has derogated from Article 5(1) of the ECHR and Article 9(1) of the ICCPR only. However, as British derogation measures also breach Article 5(4) of the ECHR,[106] they lack required consistency with other obligations under international law.
Furthermore, the derogation measures do not fulfil the requirement of non-discrimination. Sections 21–23 of the ATCSA apply only to persons subject to immigration control under the Immigration Act 1971 (UK). They do not apply to British citizens. These arrangements may be inconsistent with the requirement of non-discrimination as set forth in Article 14 of the ECHR and Article 4(1) of the ICCPR. While not explicitly mentioned in Article 4(1) of the ICCPR or Article 15(1) of the ECHR, it has long been recognised in the international law of human rights that, in the absence of war, disparate treatment on the grounds of national origin may be incompatible with the non-discrimination provisions.[107]
Not all differences of treatment are considered to be discriminatory. In Belgian Linguistics the European Court of Human Rights held that only those differences in treatment for which the State could not give a ‘reasonable and objective’ justification are discriminatory.[108] Nonetheless, the burden of justification is particularly high if certain grounds of discrimination are relied upon such as race, sex, nationality, and illegitimacy. This was confirmed in Gaygusuz v Austria, where the Court held that differences in treatment on the grounds of nationality require very weighty justification.[109] In the present case, the United Kingdom government needs to establish that treating British nationals differently from aliens is reasonably and objectively justified. A distinction would be reasonably and objectively justified if the terrorist threat to the United Kingdom exclusively originates from the alien section of the population. However, the threat is not so confined. Hundreds of British nationals attended Al–Qaeda training camps in Afghanistan.[110] Indeed, would-be shoe bomber Richard Reid holds British citizenship.[111] In these circumstances it is difficult to ascertain how the United Kingdom derogation can be regarded as other than discriminatory on the grounds of national origin.
While the violation of the principle of non-discrimination was confirmed by the SIAC judgment in A and others v Secretary of State for the Home Department, the Court of Appeal reached a different conclusion on the basis that British nationals are not in an analogous situation to foreign nationals who currently cannot be deported because of fears for their safety.[112] ‘Such foreign nationals do not have the right to remain in the United Kingdom but only a right not to be removed’. However, this difference in legal status is neither relevant nor reasonably justifiable as the threat from acts of international terrorism stems from British nationals and aliens alike. Given that the threat is neutral as to nationality, the distinction between the legal status of the two groups bears no connection to the justification for detention. In consequence, the difference in legal status is not sufficient to meet the requirement of ‘very weighty justification’.
Summing up, the United Kingdom’s derogation from the ECHR and ICCPR is unlawful. The existence of a ‘public emergency’ remains questionable and its proclamation was not made in good faith. Moreover, the derogation measures lack any proportionality, and do not fulfil the requirements of consistency and non-discrimination.
Much of what has been said in relation to the existence of a ‘public emergency’ in the United Kingdom is applicable to the situation in Australia. To this date there has not been any terrorist incident on Australian soil. Nor, indeed, has Al–Qaeda even been identified unambiguously as the perpetrator of the attacks on the United States. Responding to a series of questions from members of the Senate’s Legal and Constitutional Legislation Committee, ASIO confirmed in April 2002 that there was ‘no known specific terrorist threat to Australia at present’ and that there were a ‘series of other countries more at risk of attack’.[113] Since April 2002, Canberra’s unconditional support of American foreign policy and Australian involvement in the war on Iraq has undoubtedly increased Australia’s profile as a terrorist target. Besides, the Federal Government’s advice on ‘how to spot a terrorist’ and freely dispatched fridge-magnets containing emergency instructions for terrorist attacks are likely to have heightened public anxiety. Nevertheless, while Australia may be in a state of alert, the actuality or imminence of a ‘public emergency’ remains strongly questionable. In particular, it is hard to see why Australia should be more affected by international terrorism than major European countries such as the United Kingdom, Germany, France or Italy.[114]
At the time of writing, Australia has neither proclaimed the existence of a ‘public emergency’ nor notified the UN Secretary–General about its intention to do so. According to ASIO there is currently ‘no known specific terrorist threat to Australia’.[115] It is therefore doubtful whether any proclamation could be regarded as made in good faith. In addition, even if it is assumed that the present threat to Australia constitutes an Article 4 ICCPR ‘public emergency’, it is highly unlikely that the detention of non-suspects, authorised by a non-judicial body for the mere purposes of intelligence gathering, is justifiable as ‘strictly required by the exigencies of the situation’.
First, it is generally debatable whether the detention of non-suspects is essential in order to gather intelligence on terrorist activities. The Government must demonstrate that the legislative objective of the ASIO Act, ie collecting intelligence that assists in the investigation of terrorism offences, cannot be achieved sufficiently by other means. To this date, Canberra has not established evidence that the collection of relevant intelligence is not achievable through other, less repressive, courses of action.
Second, as indicated, the ASIO Act allows for detention of non-suspects on the basis that such detention ‘substantially assists the collection of intelligence material that is important to a terrorism offence’. The intelligence information sought in no way has to have any connection to the terrorist activities and possible threats by the Al–Qaeda network. However, as the existence of the ‘public emergency’ is likely to be claimed on the ground of imminent threats by Islamic fundamentalist terrorism, a specific reference to it would be indispensable. In consequence, the scope of ASIO Act provisions is not strictly required by the ‘exigencies of the situation’.
Third, measures as introduced by the ASIO Act are disproportionate since they do not provide sufficient safeguards to avoid abuse of emergency powers. The detention of non–suspects is overseen by a non-judicial body lacking necessary independence from the executive. The ASIO Act does not allow for adequate judicial review of measures that seriously curtail the fundamental right to liberty and security.
Finally, any Australian derogation from the ICCPR would lack consistency with other obligations under international law. As indicated, the ASIO Act provides for powers to detain children. These arrangements contravene essential provisions of the UN Convention on the Rights of the Child (hereinafter CROC).[116] In the light of these factors, Australia is not lawfully entitled to derogate from its international human rights obligations under the ICCPR.
One of America’s founding fathers, Benjamin Franklin, warned in 1759 that ‘[t]hey that can give up essential liberty to obtain a little temporary safety neither deserve liberty nor safety’.[117] Ironically, the United Kingdom and Australia today are on the verge of giving up essential liberty without being able to obtain even temporary safety. It has been no part of the argument presented in this article that governments should be denied powers they genuinely need to defend our liberal democratic way of life against the scourge of international terrorism. But these powers need to strike a proper balance between the vital needs of the state and the liberty of its citizens, between national security necessities and international human rights obligations.
The British Anti-terrorism, Crime and Security Act 2001 (UK) and the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) have not come close to accomplishing this delicate task. In particular, various provisions of both pieces of legislation raise serious concerns in relation to the United Kingdom’s and Australia’s legal commitments under the ECHR and the ICCPR respectively. As a consequence, the British Government submitted derogation from both treaties. However, for a number of reasons the legal validity of this derogation remains problematic. First, even granted a wide margin of appreciation, the United Kingdom has not sufficiently established that it faces a ‘public emergency threatening the life of the nation’ within the meaning of Article 15(1) of the ECHR and Article 4(1) of the ICCPR. Second, serious doubts arise as to whether the proclamation of the ‘public emergency’ has been made in good faith. Third, indefinite detention of suspected international terrorists regardless of whether or not they have links with the Al–Qaeda network could hardly be regarded as strictly required by the exigencies of the situation, in particular, as persons detained under ATCSA provisions do not have access to regular judicial review. Finally, measures as introduced by the legislation violate the principle of non-discrimination. The United Kingdom Government has failed to give a reasonable and objective justification for differently treating British nationals and aliens.
In contrast to the United Kingdom, Australia has not officially proclaimed derogation yet, and, indeed, it is highly doubtful that current circumstances would allow for derogation from the ICCPR. First, it is difficult to see how there can be a ‘public emergency’ in the terms of Article 4(1) of the ICCPR existing in Australia at this time. Second, proposed measures arguably fail to fulfil the further requirements of lawful derogation. The detention of non-suspects authorised by a non-judicial body for the mere purpose of questioning goes well beyond what is strictly required to defend Australia from acts of international terrorism. In addition, several passages of the ASIO Act are not only inconsistent with ICCPR provisions but also with Australia’s other obligations under international law, specifically with the CROC.
Speaking to the Australian Law Council one month after the 9/11 attacks, High Court Justice Michael Kirby rightly warned that:
[e]very erosion of liberty must be thoroughly justified. Sometimes it is wise to pause. Always it is wise to keep our sense of proportion and to remember our civic traditions as the High Court Justices did in the Communist Party Case of 1951.[118]
Such restraint at the height of the Cold War and in the ‘golden age’[119] of Soviet espionage should have served as an example today, both in the United Kingdom and Australia.
[1] UN Doc S/Res/1368 (2001) and UN Doc S/Res/1373 (2001).
[2] See Henry H Han, Terrorism & Political Violence: Limits & Possibilities of Legal Control (1993); Peter Janke (ed), Terrorism and Democracy (1992); Alex P Schmid and Ronald D Crelinsten (eds), Western Responses to Terrorism (1993); David A Charters (ed), The Deadly Sin of Terrorism: Its Effect on Democracy and Civil Liberty in Six Countries (1994). See also Paul Wilkinson, Terrorism Versus Democracy: The Liberal State Response (2001).
[3] Paul Wilkinson, Terrorism and the Liberal State (2nd ed, 1986) at 125. Moreover, several scholars argued that an ability to deal with terrorism in a way that is widely held to be in conformity with established political and judicial principles will, in actuality, strengthen the commitment to uphold democratic institutions and, thus, further isolate and weaken those who seek to destroy them. See, for example Peter Chalk, ‘The Liberal Democratic Response to Terrorism’ (1995) 7(4) Terrorism and Political Violence 10.
[4] UN Doc A/Res/54/164 (1999).
[5] Relevant legislation includes the Terrorism Act 2000 (UK), the Immigration Act 1971 (UK), the Extradition Act 1989 (UK), the Taking of Hostages Act 1982 (UK), the Customs and Exercise Management Act 1979 (UK) and the Export of Goods (Control) Order 1994 (UK).
[6] The Act received Royal Assent on 14 December 2001. The full text version and other related information can be found at <http://www.hmso.gov.uk/acts/acts2001/20010024.htm> (24 May 2003).
[7] Adam Tomkins, “Legislating against Terror: the Anti-terrorism, Crime and Security Act 2001” [2002] (Summer) Public Law 205 at 205. See also Rhiannon Talbot, “The Balancing Act: Counter-terrorism and Civil Liberties in British Anti-terrorism Law” in John Strawson (ed), Law After Ground Zero (2002) 123 at 123–132. Talbot, however, examines British counter-terrorism legislation from a civil liberties angle rather than from the international human rights perspective.
[8] For a good summary of the principal changes made by the ATCSA, see <http://www.homeoffice.gov.uk/oicd/antiterrorism/atcsa.htm> (6 Jan 2003).
[9] According to s21(3), a ‘group is an international terrorist group for the purposes of subsection (2)(b) and (c) if – (a) it is subject to the control or influence of persons outside the United Kingdom, and (b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.’ Section 21 (4) states that ‘[f]or the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.’
[10] For the Terrorism Act 2000 (UK) see <http://www.hmso.gov.uk/acts/acts2000/20000011.htm> (2 Jan 2003). Section 1 reads:
(1) In this Act “terrorism” means the use or threat of action where –(a) the action falls within subsection (2),(2) Action falls within this subsection if it –
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(a) involves serious violence against a person,(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(4) In this section –
(a) “action” includes action outside the United Kingdom,(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.’
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
[11] Examples of a ‘point of law’ preventing removal include other international obligations such as Article 3 of the ECHR (see n13). An example of ‘practical consideration’ would be the absence of relevant travel documents.
[12] The author acknowledges that the ATCSA provisions also breach obligations under the ICCPR, specifically Article 9(4). Although there are slight differences in the wording of Article 5 of the ECHR and Article 9 of the ICCPR, the provisions are similar. As Article 9(4) of the ICCPR will be subject to an in-depth analysis in the Australian context, focus here is on Article 5 of the ECHR only.
[13] The paradigmatic example for removal from the United Kingdom being prevented by a ‘point of law’ is the case where such removal would expose the person to the risk of torture, or of inhuman or degrading treatment (Article 3 ECHR). See Chahal v United Kingdom [1996] ECHR 54; (1996) 23 EHRR 413.
[14] In Chahal v United Kingdom the European Court of Human Rights held that ‘any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible’: Chahal v United Kingdom, id at 465.
[15] In particular, s23 of the ATCSA does not fall under the exception of Article 5(1)(c) of the ECHR.
[16] Patrick Wintour, ‘Blunkett rejects “airy fairy” fears’, Guardian (Manchester) (12 Nov 2001) at 2.
[17] Human Rights Act 1998 (Designated Derogation) Order 2001 (UK). The relevant passage reads: ‘There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom. As a result, a public emergency, within the meaning of Article 15(1) of the Convention, exists in the United Kingdom’ (Sch Article 2).
[18] The United Kingdom also notified the UN Secretary–General of its Article 4(1) ICCPR derogation from Article 9(1) of the ICCPR.
[19] SIAC was established by the Special Immigration Appeals Commission Act 1997 (UK) to hear appeals against immigration and deportation decisions that have been taken on national security grounds.
[20] It seems worthy to note, however, that a cancellation does not prevent the Secretary of State from issuing a new certificate, ‘whether on the grounds of a change of circumstance or otherwise’ (s27(9)).
[21] X v United Kingdom [1981] ECHR 6; (1981) 4 EHRR 188 at 207.
[22] See, for example Singh v United Kingdom, Hussain v United Kingdom [1996] ECHR 8; (1996) 22 EHRR 1.
[23] Bouamar v Belgium [1988] ECHR 1; (1987) 11 EHRR 1.
[24] Sanchez-Reisse v Switzerland [1986] ECHR 12; (1986) 9 EHRR 71; Lamy v Belgium (1989) 15 EHRR 529. See also Toth v Austria [1991] ECHR 72; (1991) 14 EHRR 551; Kampanis v Greece [1995] ECHR 22; (1995) 21 EHRR 43.
[25] Special Immigration Appeals Commission Act 1997 (UK), s6.
[26] Except in the Northern Territory, see Criminal Code Act (1983) (NT) Pt III Div 2.
[27] These five bills include the Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (Cth), Suppression of the Financing of Terrorism Bill 2002 (Cth), Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 (Cth), Border Security Legislation Amendment Bill 2002, Telecommunications Interception Legislation Amendment Bill 2002 (Cth).
[28] The Bill introduced a definition of ‘terrorist act’ into federal law and contains criminal sanctions for involvement with a terrorist organisation, including for providing support or funding, recruiting members, directing its activities or being a member. According to s102.1, a terrorist organisation is ‘an organisation that is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs)’.
[29] The ASIO Bill (Third Reading) is available at <http://zem.squidly.org/cache/asio-11100200.pdf> . For the ASIO Bill (First Reading) see <http://www.aph.gov.au/house/committee/pjcaad/TerrorBill2002/terrorism2002.pdf> . For the revised version of 20 March 2003, see <http://parlinfoweb.aph.gov.au/piweb/Repository/Legis/Bills/Linked/17040301.pdf> .
[30] Quoted by Mark Forbes, ‘Deadlock on ASIO Bill’, The Age (Melbourne) (13 Dec 2002) [Emphasis added.]. See also Daryl Williams, ‘How the anti-terrorism laws assure security and freedom’, The Age (Melbourne) (11 June 2002) at 13.
[31] George Williams, ‘Why the ASIO Bill is Rotten to the Core’, The Age (Melbourne) (27 Aug 2002) at 15. For a critical examination of Australian anti-terrorism legislation see also George Williams, ‘One Year On: Australia’s Legal Response to September 11’ (2002) 27(5) Alt LJ 212; Joo-Cheong Tham, ‘ASIO and the Rule of Law’ (2002) 27(5) Alt LJ 216.
[32] Act No 77, 2003. Attorney–General, Stronger Tools for ASIO to Combat Terrorism (News Release 72/03) (26 June 2003): <http://nationalsecurity.ag.gov.au> (10 July 2003).
[33] According to s34B, a ‘prescribed authority’ may be a retired superior court judge, a current State or Territory Supreme Court or District Court judge, or a President or Deputy President of the Administrative Appeals Tribunal.
[34] Australia signed the ICCPR on 18 December 1972 and ratified it on 13 August 1980.
[35] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) at 178.
[36] Van Alphen v The Netherlands (1990) HRC Comm No 305/1988, UN Doc A/45/40 at para 5.8. See also A v Australia (1997) HRC Comm No 560/1993 at para 9.2.
[37] ‘Australia will be terrorist target for years: ASIO’, The Age (Melbourne) (19 Apr 2002).
[38] Ibid.
[39] Bill C–36 (An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism) 2001 (Can), s83.28(1) and s83.28(11): <http://www.parl.gc.ca/37/1/parlbus/chambus/house/bills/government/C – 36/C – 36_4/C – 36TOCE.html> (3 Mar 2003).
[40] Human Rights Committee (hereinafter HRC), General Comment 8 (1982) at para 2.
[41] Freemantle v Jamaica (1998) HRC Comm No 625/1995.
[42] Brogan v United Kingdom [1988] ECHR 24; (1988) 11 EHRR 117.
[43] See above n33 and accompanying text.
[44] See above nn20–25 and accompanying text.
[45] Chahal v United Kingdom, above n13 at 469.
[46] The ASIO Act may also violate Article 17(1) of the ICCPR which provides that ‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’ In McVeigh, O’Neill & Evans v United Kingdom (1981) 5 EHRR 71 the European Commission of Human Rights found that the detention of suspected terrorists for 45 hours without access to their wives breached Article 8 of the ECHR, the equivalent to Article 17 of the ICCPR in the European Convention.
[47] For ‘strict liability’, the Criminal Code Act 1995 (Cth), s6.1.
[48] Saunders v United Kingdom [1996] ECHR 65; (1996) 23 EHRR 313.
[49] HRC, General Comment 13 (1984) para 14.
[50] The UN Convention on the Rights of the Child (hereinafter CROC): <http://www.unicef.org/crc/crc.htm> (13 Feb 2003).
[51] The Bill may also breach Articles 2(2), 3(1) and 19(1) of the CROC. Article 2(2) provides that a child must not be discriminated against on the basis of the expressed opinions of their parents. Article 3 (1)1 provides that ‘in all actions concerning children ... the best interests of the child shall be a primary consideration’. Article 19(1) provides that the State must take all appropriate measures to protect the child from all forms of injury or abuse.
[52] Accounts on emergency derogations in general include Rosalyn Higgins, ‘Derogations under Human Rights Treaties’ (1976–77) 48 The British Yearbook of International Law 281; Thomas Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (1981) 72; Joan F Hartman, ‘Working Paper for the Committee of Experts on the Article 4 Derogation Provision’ (1985) 7(1) Human Rights Quarterly 89; David J Harris, Michael O’Boyle & Chris Warbrick, Law of the European Convention on Human Rights (1995) at 489–507; Jochen A Frowein & Wolfgang Peukert, Kommentar – Europäische Menschenrechtskonvention (2nd ed, 1996) 479–85; Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception: With Special Reference to Travaux Préparatoires and Case-Law of the International Monitoring Organs (1998).
[53] Article 15 of the ECHR reads:
‘1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law.
2. No derogations from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.’
Article 4 of the ICCPR reads:
‘1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Convenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other State Parties to the present Covenant, through the intermediary of the Secretary–General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.’
[54] Lawless v Ireland (No 3) [1961] ECHR 2; (1961) 1 EHRR 15.
[55] Id at 31.
[56] Greek Case (1969) 12 Yearbook ECHR 1
[57] The relevant part reads: ‘Une situation de crise ou de danger public exceptionnelle et imminente...’ [Emphasis added.]
[58] Greek Case, above n56 at para 153.
[59] Some members of the Commission argued that when the organs of the State are functioning normally, there is no grave threat to the life of the nation and, therefore, emergency measures are not legitimate. However, the majority in the Commission did not follow this reasoning. In practice, both criteria (2) & (3) are generally applied in a rather relaxed way.
[60] Evidence of these requirements being recognised as general legal standards in the process of determining the meaning of ‘public emergency’ can also be found in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (hereinafter Siracusa Principles), reproduced in ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1985) 7(1) Human Rights Quarterly 3. The Siracusa Principles were drafted by a group of 31 distinguished experts in international law convened by a number of well-respected organisations such as the International Commission of Jurists. The Conference was held in Siracusa, Italy in Spring 1984. In addition, these criteria are expressed in the International Law Association’s (hereinafter ILA) work on the issue: Paris Minimum Standards of Human Rights Norms in a State of Emergency ILA, (hereinafter the Paris Minimum Standards), reproduced in ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985) 79 AJIL 1072.
[61] HRC, General Comment 29 (2001) at paras 4 and 5.
[62] As Ronald St J Macdonald observed, it is the doctrine of margin of appreciation which allows the Court to escape the dilemma of ‘how to remain true to its responsibility to develop a reasonably comprehensive set of review principles appropriate for application across the entire Convention, while at the same time recognising the diversity of political, economic, cultural and social situations in the societies of the Contracting Parties’. See Ronald St J Macdonald, ‘The Margin of Appreciation’ in Ronald St J Macdonald, Franz Matscher & Herbert Petzold (eds), The European System for the Protection of Human Rights (1993) 83 at 83.
[63] See, for example Thomas A O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4(4) Human Rights Quarterly 474.
[64] Ireland v United Kingdom (1978) Series A No 35 at 78–9.
[65] Ibid.
[66] Landinelli Silva v Uruguay (1981) HRC Comm No 34/1978 at para 8.3.
[67] HRC, General Comment 29, above n61 at para 2. This requirement mainly seeks to reduce the incidence of the de facto states of emergency by obliging states to declare the emergency following the procedures of municipal law.
[68] Nowak, above n35 at 80.
[69] Lawless v Ireland, above n54 at paras 4–5.
[70] Joan Fitzpatrick, Human Rights in Crisis: The International System for Protecting Rights During States of Emergency (1994) at 59.
[71] A reference to a bona fide proclamation is also made in Principle 66 of the Siracusa Principles.
[72] See Article 15(1) of the ECHR and Article 4(1) of the ICCPR.
[73] See, for example Marc-André Eissen, ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights’ in Ronald St J Macdonald, above n62 at 125–137.
[74] Ibid.
[75] Above n64 at 78–9.
[76] See Principles 54 and 57 of the Siracusa Principles.
[77] See, for example Jaime Oraa, Human Rights in States of Emergency in International Law (1992) at 178.
[78] Id at 30–31.
[79] Francis X Taylor, ‘The Global War Against Terrorism: The Way Ahead’, Address to the Institute for National Strategic Studies, National Defense University, Washington DC, 23 October 2002: <http://www.state.gov/s/ct/rls/rm/14570pf.htm> (2 Mar 2003).
[80] The list of Islamic extremist terror organisations is both a long and an open one. It is also noteworthy that although the 9/11 attacks are considered to be initiated by Usama bin Laden, to this date, neither Al–Qaeda nor any other terrorist group has officially claimed responsibility.
[81] Parliamentary Assembly of the Council of Europe, Combatting Terrorism and Respect for Human Rights, Res 1271 (2002) at paras 9 and 12(v): <http://assembly.coe.int/Documents/AdoptedText/ta02/ERES1271.htm> (18 Jan 2003).
[82] The author acknowledges that European countries, particularly France, Germany (eg Munich Olympics 1972) and the United Kingdom (eg Lockerbie crash of Pan Am 103, 1988), have been subject to attacks from terrorist groups with links to the Middle East. However, to this day, there have not been any attacks in Europe from Islamic fundamentalist terrorists commonly associated with Al–Qaeda.
[83] Figures quoted by Tomkins, above n7 at 215–6.
[84] See, for example Rohan Gunaratna, Inside Al Qaeda: Global Network of Terror (2002); Yonah Alexander & Michael S Swetnam, Usama bin Laden’s al–Qaida: Profile of a Terrorist Network (2001); Bruce Hoffman, Inside Terrorism (1998).
[85] Wintour, above n16.
[86] ‘The Committee notes with concern that the State Party, in seeking inter alia to give effect to its obligations to combat terrorist activities pursuant to Resolution 1373 of the Security Council, is considering the adoption of legislative measures which may have potentially far-reaching effects on rights guaranteed in the Covenant, and which, in the State Party’s view, may require derogations from human rights obligations. The State Party should ensure that any measures it undertakes in this regard are in full compliance with the provisions of the Covenant, including, when applicable, the provisions on derogation contained in Article 4 of the Covenant’: HRC, Concluding Observations of the Human Rights Committee, United Kingdom of Great Britain and Northern Ireland (6 Dec 2001) at para 6.
[87] SIAC judgment in A and others v Secretary of State for the Home Department (30 July 2002) Appeal No: SC/1–7/2002.
[88] See above notes 67–71 and accompanying text. As the British government notified the Council of Europe and the UN Secretary–General about the derogation from the ECHR and ICCPR, the requirement of notification has been fulfilled and is not discussed here any further
[89] HRC, General Comment No 29, above n61 at para 1.
[90] Wintour, above n16.
[91] Well respected human rights lawyer David Pannick QC, in an opinion prepared for the National Council for Civil Liberties (Liberty), made the additional point that the derogation from Article 5(1) is prompted by concern about an inability to remove foreign nationals from the United Kingdom because of Article 3 of the ECHR. He was ‘very doubtful’ that it is a valid use of Article 15(1) to impose detriments on persons because they seek to take advantage of rights conferred by Article 3, especially when Article 15(2) prohibits any derogation from Article 3 itself because of its fundamental nature. For Pannick, it is strongly arguable that the Home Secretary is not seeking to derogate from Article 5(1) because of a public emergency threatening the life of the nation, but because Article 3 prevents him removing from the United Kingdom asylum-seekers who may face persecution abroad. See Joint Committee On Human Rights, Anti-terrorism, Crime and Security Bill: Further Report, Fifth Report, (hereinafter Joint Committee on Human Rights Fifth Report) HL 51, HC 420, Session 2001–2002, Appendices, Appendix 5 at para 6(5): <http://www.publications.parliament.uk/pa/jt200102/jtselect/jtrights/51/5102.htm> (20 Feb 2003).
[92] It is significant to note that some of the measures, as a former Home Secretary admitted in the House of Lords, have been ‘hanging around in the Home Office for a long time’ waiting for a suitable legislative opportunity to arise. Quoted by Tomkins, above n7 at 220.
[94] Quoted in Joint Committee on Human Rights Fifth Report, above n91 at Appendix 3, para 10.
[95] In Home Secretary v Rehman [2001] UKHL 47; [2001] 3 WLR 877 at 884 (Lord Slynn of Hadley) and 894 (Lord Hoffman), it was held that ‘action against a foreign state may be capable indirectly of affecting the security of the United Kingdom’ and that ‘the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interests of national security’.
[96] For the Tamil Tiger example, see Joint Committee On Human Rights Fifth Report, above n91 at Appendix 3, para 21–2.
[97] Walter Pincus & Dana Priest, ‘Spy Agencies’ Optimism on Al Qaeda is Growing’, Washington Post (6 May 2003) at A16.
[98] Quoted in Mark Hosenball & Michael Isikoff, ‘Al Qaeda Strikes Again’, Newsweek (26 May 2003) 24 at 26.
[99] Terrorism experts believe that recent terorist attacks in Riyadh and Morocco were ‘probably not orchestrated by Al Qaeda’ and have ‘little or no connection to Usama bin Laden’. The attacks are rather believed to have been carried out by local groups with anti-monarchist motivations: William O Beeman, ‘Saudi-Bombing – A Calculated Act With a Political Message’, Pacific News Service (14 May 2003).
[100] It is not without significance that a number of British MPs rejected extending SIAC powers to rule on appeals of detention orders. Replying to the Home Secretary’s argument that MPs did not object to the creation of SIAC in 1997, one MP pointed out that ‘had MPs known that SIAC – a star chamber of an organisation, with draconian powers over evidence – was to be used as an appeals procedure, not for deportation but for the indefinite incarceration of people without charge or trial, MPs would not have voted for it’. See Bob Marshall-Andrews MP, A Fundamental Attack on Liberty Which Must Be Stopped: <http://www.poptel.org.uk/scgn/articles/0112/page6d.htm> (4 Feb 2003).
[101] See above notes 20–25 and accompanying text.
[102] [2001] UKHL 47; [2001] 3 WLR 877 at 896–7 (Lord Hoffman).
[103] [2000] UKPC D3; [2001] 2 WLR 817 at 834–5 (Lord Bingham of Cornhill).
[104] A and others v Secretary of State for the Home Department [2002] EWCA Civ 1502 at para 40 (Lord Woolf CJ).
[105] Chahal v United Kingdom, above n13 at 469.
[106] See above notes 20–25 and accompanying text.
[107] Paris Minimum Standards, above n60 at section B2(d). As Colin Warbrick observed correctly, the list of prohibited grounds of discrimination is both a long one and an open one: Colin Warbrick, ‘The Principles of the European Convention on Human Rights and the Response of States to Terrorism’ (2002) 3 European Human Rights Law Review 287 at 313–14.
[108] Belgian Linguistics Case (No 2) [1968] ECHR 3; (1968) 1 EHRR 252.
[109] Gaygusuz v Austria [1996] ECHR 36; (1997) 23 EHRR 364 at 381.
[110] Peter Beaumont, ‘Briton held in US camp as al–Qaeda prisoner’, The Observer (London) (13 Jan 2002) at 1. In addition, nine British citizens allegedly involved in terrorist activities were detained as a consequence of allied military action in Afghanistan. One of these detainees was recruited by a British preacher from a London mosque. See, for example Richard Willing, ‘London Mosque Called Central to al–Qaeda Efforts’, USA TODAY (30 Aug 2002) at A03.
[111] Richard Reid tried to blow up a transatlantic flight from Paris to Miami on 22 December 2001 using explosives hidden in his sports shoes. See, for example Gary Younge & Duncan Campbell, ‘Shoe-bomber sentenced to life in prison’, Guardian (Manchester) (31 Jan 2003) at 16.
[112] Above n104 at paras 45–56.
[113] Above n37.
[114] An audiotaped message from Usama bin Laden in November 2002 warned of further terrorist attacks on countries ‘allying themselves with America’. Although bin Laden referred to Australia as potential future target, Australia was mentioned only after Britain, France, Italy, Canada and Germany: ‘Official: Voice on tape is bin Laden’s’, CNN News, 13 Nov 2002: <http://www.cnn.com/2002/WORLD/meast/11/12/binladen.statement> (13 Nov 2002).
[115] Above n37.
[116] See above notes 50–51 and accompanying text.
[117] Benjamin Franklin, Historical Review of Pennsylvania (1759), quoted in Emily Morison Beck (ed), Bartlett’s Familiar Quotations: A Collection of Passages, Phrases, and Proverbs Traced to their Sources in Ancient and Modern Literature (15th and 125th anniversary edn, 1980) at 348.
[118] Michael Kirby, Australian Law – After September 11, 2001, Speech to the Law Council of Australia, 32nd Australian Legal Convention, 11 October 2001: <http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_after11sep01.htm> (14 Jan 2003).
[119] Joseph M Siracusa, ‘The “New” Cold War History and the Origins of the Cold War’ (2001) 47(1) Australian Journal of Politics and History 149.
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