Ten years on it’s time for a roots and branch review of counter-terrorism laws and measures

28 September 2011 marks a decade since the adoption of Security Council resolution 1373 concerning measures to combat terrorism. Ten years on, and against the background of involvement in counter-terrorism issues as an academic, a consultant, and an ad hoc adviser to various United Nations agencies, I have been asked how I might advise the Attorney-General of Australia if he were to undertake a roots and branch review of Australia’s counter-terrorism laws and measures. My advice would be lengthy, but key to it I would identify what I see as ten key lessons learnt over the last decade. Lesson 1: Combating terrorism outside the rule of law and contrary to human rights

States have a nationally-focussed obligation to protect their citizens from acts of terrorism, and an internationally-focussed duty to contribute to combating international terrorism where this amounts to a threat to peace and security. But this is not an obligation that trumps all others: the combating of terrorism must be undertaken in compliance with all international obligations, including human rights law, refugee law, and humanitarian law. Not only is this a legal obligation, it is also reaffirmed by the Security Council, General Assembly and Human Rights Council. Notwithstanding this, the years following 9/11 saw a radical shift to giving absolute priority to security considerations. Counter-terrorism laws, policies and practices in all regions of the world have violated human rights. Examples include the unlawful rendition of terrorist suspects to secret places of detention and the torture and ill-treatment of detainees. Even outside these more obvious and egregious examples, countermeasures have frequently been designed with insufficient regard to human rights.

Lesson 2: Most States have resisted adopting a war paradigm

From the early days after 9/11, the US Bush Administration asserted that its fight against Al-Qaeda amounted to a “war against terrorism”, pushing aside the relevance and application of international human rights law. Most States have resisted adopting a war paradigm, accepting that there can be no generic “war against terrorism”, albeit that the law of armed conflict may be relevant in certain defined periods of time, in certain geographical areas, and in respect of certain identifiable parties to an armed conflict. Furthermore, international human rights law continues to apply even in situations of armed conflict, as reaffirmed by the International Court of Justice in its Advisory Opinion on the construction of a wall in the occupied Palestinian territories.

Lesson 3: States have too-easily adopted ‘exceptional’ measures

Given the fear-inducing nature of terrorism, counter-terrorism laws and policies have frequently been designed under a framework of exceptionalism rather than a framework of normalcy. This has been seen through the derogation from rights and freedoms. Ignoring the legal pre-requisite for valid derogations from human rights, this has normally failed to establish an actual or imminent threat to the life of the nation. It has also overlooked the fact that human rights law is capable of dealing with threats such as terrorism under limitation provisions within human rights treaties. Furthermore, the enactment of robust legislation has frequently been rushed, including in Australia, often allowed because of the existence of sunset clauses. Reality has shown, however, that once enacted, legislation subject to sunset clauses is usually renewed without a proper consideration of its continued relevance. A third element of exceptionalism is seen in the undermining of the primacy of the criminal justice system. Instead of treating terrorism as a form of serious crime fought within a law enforcement framework, measures where due process guarantees do not apply have been increasingly used, in respect of which the intelligence community has had increasing control.

Lesson 4: Lack of a universally agreed-upon definition

Thirteen universal subject-specific conventions exist, each dealing with different aspects of counter-terrorism, although there is no generally-applicable and universally-accepted definition of terrorism. This has often resulted in the use of broad and over-reaching definitions in national legislation. Because of their link to terrorism offences, and criminal and administrative measures, wide definitions have created great potential for abuse. The former UN Special Rapporteur on counter-terrorism has articulated a concise definition compatible with counter-terrorism and human rights. Based on Security Council resolution 1566, his approach comprises three cumulative elements: (1) action corresponding to an offence under the 13 universal terrorism-related conventions (or, alternatively, action corresponding to all elements of a serious crime defined by national law); and (2) action done with the intention of provoking terror or compelling a government or international organisation to do or abstain from doing something; and (3) action passing a certain threshold of seriousness (the intentional taking of hostages, or action intended to cause death or serious bodily injury, or action involving lethal or serious physical violence). Many national definitions of terrorism go beyond this third threshold of seriousness, including in Australia where, for example, terrorism includes acts intended to cause economic damage.

Lesson 5: The problem has not gone away

Ten years on from the adoption of resolution 1373, the problem of terrorism persists and, many would argue, has entrenched itself and spread. The reasons are numerous, and debateable in some instances, but the international community has agreed upon the recognition and relevance of conditions conducive to the spread of terrorism. The UN Global Counter-Terrorism Strategy recognises that human rights compliance while countering terrorism is an indispensible part of a successful medium- and long-term strategy. The Strategy recognises the violation of human rights as a long-term condition conducive to the spread of terrorism. While making it clear that such conditions can never excuse or justify terrorism, this represents a clear affirmation by all UN Members that effective counter-terrorism measures and the protection of human rights are not conflicting, but rather complementary and mutually reinforcing goals.

Lesson 6: Accountability for human rights violations

Concerning the conduct and complicity of State authorities in counter-terrorism operations, accountability for human rights violations has gone largely unaddressed, or has been actively impeded. For example, despite the existence of evidence warranting investigations into ‘enhanced interrogation techniques’ (authorised by the Bush Administration and undertaken by the CIA), including waterboarding and other forms of torture or ill-treatment, there has been a completely inadequate response by the US Attorney-General to the investigation and prosecution of suspected perpetrators and commanders. Remembering that the Global Strategy identifies the violation of human rights as a condition conducive to the spread of terrorism, this lack of accountability cannot be allowed to persist.

Lesson 7: Effective remedies for those whose human rights have been violated

Access to effective remedies and reparations is a right under international human rights treaties and norms concerning State responsibility. Those whose rights have been violated by counter-terrorism measures must have access to effective remedies, including in respect of privatised counter-terrorism functions. The former UN Special Rapporteur on counter-terrorism has identified this as one of ten best practices, noting that remedial provisions should be framed in sufficiently broad terms to enable effective remedies according to the requirements of each particular case including, for example, the exclusion of evidence obtained in violation of human rights. Despite this, there has been an inappropriate use of State secrecy doctrines, or other means of preventing the disclosure of information, to frustrate access to remedies.

Lesson 8: Regular review of the content and operation of laws and practices

Lesson 8 has been identified by the former UN Special Rapporteur as a best practice towards ensuring that special powers are effective and continue to be required, and also to help avoid their “normalisation” or de facto permanent existence. Periodic review enables assessments of whether the exercise of counter-terrorism powers has been proportionate and thus whether, if such powers continue, further constraints on their exercise should be introduced. Regular review should include: (1) annual government review of and reporting on the exercise of powers under counter-terrorism laws; (2) annual independent review of the overall operation of counter-terrorism laws; and (3) periodic legislative review. Not all of these features have been part of reviews undertaken within Australia.

Lesson 9: Proportionality as a balance between ameliorating effects and negative impacts, not between security and human rights

Recognising that there is an obligation to comply with human rights while countering terrorism (Lesson 1), and that human rights compliance and the countering of terrorism are complementary and mutually reinforcing goals (Lesson 5), practitioners often struggle to adequately deal with proportionality. A careful application of human rights law allows effective responses to the challenges of counter-terrorism, which must be achieved under legal prescriptions necessary to pursue legitimate aims, such as national security or the protection of public safety, proportionate to those ends. When speaking of proportionality, there is no trade-off to be made between security and human rights. There is no “zero sum game”, where one participant’s gains result only from another’s equivalent losses. As captured by the UN Rapporteur, the balance is to be found within human rights law itself: “Law is the balance, not a weight to be measured”, he has said.

Lesson 10: Victims of terrorism have in large part been inadequately considered

States have a duty under international human rights law to protect those within their territory and jurisdiction against the impairment of their rights by non-State actors, including terrorists. The situation of victims of terrorism has nevertheless been too often overlooked, other than in an ad hocmanner and sometimes only in the immediate aftermath of a terrorist attack. There remains no international compensation fund for victims, despite this having been on the agenda of the Security Council’s resolution 1566 Working Group since 2005. The Global Strategy calls on States to protect the rights of victims of terrorism, and to consider putting into place national systems of assistance that would promote the needs of victims of terrorism and their families. This represents a best practice not just because it assists the rebuilding of lives, but it can also help to reduce tensions in society that might themselves result in conditions conducive to the spread of terrorism. Bringing the perpetrators of terrorist acts to justice is also vitally important in this regard.

These ten lessons are just some of the key lessons taken from experiences in combating terrorism over the past decade. They are all inextricably linked to suppressing conditions conducive to the spread of terrorism, and to the recognition that the combating of terrorism and the protection of human rights are mutually reinforcing and vital to achieving a sustainable counter-terrorism strategy. To paraphrase a recent statement by the High Commissioner for Human Rights to the Human Rights Council, a failure to recognise and implement this principle of mutual reinforcement “…too often [leads] to an erosion of rights and foster[s] a culture of diffidence and discrimination which, in turn, perpetuates cycles of violence and retribution”.

Dr Alex Conte is Permanent Representative to the United Nations for the International Commission of Jurists