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Issue of Terrorism and its Impact of the Human Rights.

   For a number of years, the UK has had to deal with terrorism. In particular, its experience with the Irish Republican Army, which has caused the UK to establish laws specific to this area. It was in 1974 when the British Parliament enacted the first Prevention of Terrorism (Temporary Provisions) Act. This identifies exactly how long the country has been dealing with such issues. However the public have become more aware of the growing threat of terrorism since the tragic September 11th disaster in America, 2001 and concerns are rising. Terrorism is defined by the European Union as being offences which “include international acts, by their nature and context, which may be seriously damaging to a country or to an international organisation, as defined under national law, where committed with the aim of; Seriously intimidating a population or, unduly compelling a government or international organisation to perform or to abstain from performing any act or, destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or international organisation”.

   It can be argued that Human Right’s legislation is not compatible with the fear of terrorism in a number of ways. In the Convention for the protection of Human Rights, Article 15; ‘Derogation in time of emergency’ states in paragraph 1 that “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 its other obligations under international law” therefore, in a situation where terrorist activity is suspected, certain measures which, under normal circumstances may violate government legislation, are able to be carried out in order to protect society at this particular point of time. In these situations however, it is necessary for the party to inform the Secretary General of the Council of Europe before taking these actions as in Article 15, paragraph 3.[1]

   Measures that may be derogated are those such as the detention of suspects for a period longer than the usual 48 hours for example, as in Section 12, paragraph 4 of the Prevention of Terrorism (Temporary Provisions) Act 1984.[2] This may not prove to be compatible with the terrorism threat due to the fact that, in certain situations where terrorism is suspected, it may be essential to make quick decisions or take spontaneous action in order to protect the lives of the individuals in danger. The current routine of having to inform and gain permission of a higher authority can be a lengthy process. It may therefore be seen as being an unsuitable or unsuccessful method of taking anti-terrorist measures.

   The UK government has created counter-terrorist legislation in order to protect the country from any further acts of terrorism in the future, in an aim to decrease the threat of terrorism from both national or international terrorists. The Terrorism Act 2000 was the primary piece of legislation that has been extremely successful in combating terrorism; it was passed by parliament on 20th July 2002. The main aims of the Act are to outlaw certain terrorist groups from the country, such as Al Qaida. The Act also increases the powers available to the police, for example the ability to carry out stop and search procedures on suspected terrorists and the ability to detain suspects for longer than a 48 hour period if necessary. It also creates new criminal offences such as training for terrorist purposes including training in the use of firearms, explosives or nuclear and chemical weapons.[3]

  In the case of Brogan and Others v United Kingdom (1988) 11 EHRR 117, four terrorist suspects were arrested suspected of being provisional members of the IRA. William McFadden, Michael Tracey, Terence Patrick Brogan and Dermot Coyle were arrested and detained under Section 12 of the Prevention of Terrorism Act 1984.[4] The defendants were released after four days and six hours, four days and eleven hours, five days and eleven hours and six days and sixteen and a half hours. Section 12, paragraph 4 of the ‘1984 Act’ state that, with permission of the Secretary of State, the person arrested can be detained for longer than the usual 48 hour period.[5] The defendants claimed that Britain had violated several paragraphs of Article 5 of the Convention of Human Rights. The applicants argued that there had been a breach of Article 5, paragraph 1(c)[6] on the grounds that they were not arrested on suspicion of an ‘offence’. Furthermore, after being arrested they were not promptly taken either before a judge or released, as it states they should have been in paragraph 3 of Article 5.[7] It was held that in all four accounts, there had been a violation of Article 5 of the convention.

   The case of Brogan and Others v United Kingdom[8] highlights the idea that even though legislation stands in place in order to stop terrorism, there still appears to be various faults with the Human Rights legislation that restrain the authorities from carrying out necessary procedures in order to detain suspects or carry out successful investigations with the aim of preventing terrorism. The theory that Human Rights are not compatible with trying to prevent or eliminate terrorist activity seems to be noticeable with relation to cases such as the Brogan Case.

   Another issue with regards to the fear of terrorism is the invasion of one’s privacy in order to reduce the threat of terrorism to the public. On Monday 5th January 2004, new security measures against terrorism began in Dulles airport in America. It is now compulsory for all passengers holding a United States visa to have both their fingerprints and photographs taken on arrival. They want to be able to record who enters the country and also when they leave. “By 2005, every port of entry on land, sea and air will have the photographic and fingerprinting technology” Sky News, 5th January 2004. France and Germany are already planning to fingerprint visa applicants and it is inevitable that this concept will be introduced into the UK. It will be seen as obtrusive among many members of the public and will definitely go against Article 8 of the European Convention of Human Rights, ‘The Right to respect for a private and family life’.[9]

   The right to privacy has caused much debate among the British public. The current government idea to introduce compulsory identification cards which must be carried by every member of the country has caused a lot of controversy. The aim of these cards is to “tackle fraud, combat terrorism and reduce crime” according to the Liberty organisation who’s aim is to protect Human Rights. They suggest that ID cards are not the answer in combating terrorism. “All the evidence from other European countries suggests that ID cards are expensive, ineffective and damage community relations. In Britain, opinion polls show that several million adults would refuse point blank to carry one. The government should think very carefully before spending billions of pounds on a scheme that could ignite such public outrage.” [10]

   In comparison to the above argument, there is the argument that Human Rights are compatible with the current fear of terrorism. Primarily, Article 2 of the Convention of Human Rights is our ‘Right to Life’. The threat of terrorism and terrorist attacks on society violates this right, our right to life. Every individual is entitled to the right to life and any threats against this right provide suitable grounds for conviction. In instances where ones life has been taken as a result of terrorist activity then an effective investigation into the murders must take place in order to comply with this Article. As in Finucane v. United Kingdom (2003) 37 EHRR 29. In this case Mr Finucane, a solicitor from Northern Ireland was shot dead by two masked gunmen on February 12th 1989. He had represented individuals from both sides of the Northern Ireland conflict as well as a few high profile cases and an investigation was carried out into his death. No suspects were found guilty of the murder due to lack of evidence. Mrs Finucane, the victim’s wife claimed that there had been ‘no effective investigation into her husband’s death’ and that there had been a violation of Article 2 of the convention of Human Rights. Paragraph 1 states “everyone‘s right to life shall be protected by law.”

   There is an obligation of the state to protect every individuals right to life, as in Article 2 of the convention, this is read in conjunction with the State's general duty under Article 1, “requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The purpose of such investigation is to secure the implementation of domestic laws protecting the right to life and, in cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.” Paragraph 67, Finucane v. United Kingdom (2003) 37 EHRR 29.

   Article 15[11] of the convention, although not without fault as explained previously, clearly backs up the fear of terrorism and is extremely necessary in times of terrorist threats. This article allows a state in a ‘public emergency’ to derogate itself from its obligations under the convention. Those of a high authority, such as the police force are given extra powers and are able to carry out procedures which, under normal circumstances would be a violation of certain rights. This does not include obligations stated in Articles 2, 3 and 4.[12] For example, one is still entitled to their right to life. This article is essential in instances where threats have been made against the public and extreme action needs to be taken in order to protect the country. As stated in the Human Rights Act 1998[13] “the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted.”

   In conclusion, it is difficult to establish whether the fear of terrorism is or is not compatible with Human Rights. There are a number of cases in favour of both arguments, however it is clear that the legislation and security procedures aimed at tackling the current terrorism crisis is proving to be successful and has resulted in the prevention of a number of potential terrorist attacks on Europe and America, the main targets of terrorism. It can therefore be argued that the breach of certain Human Rights, such as privacy for example, is essential in order to protect today’s society from the danger that terrorism inflicts upon it.

Bibliography
Internet Articles:
Modi, K., Wadham, J., ‘Anti-Terrorism legislation in the United Kingdom and concerns arising from it’ (2003) Liberty:
http://www.liberty-human-rights.org.uk . Last visited 11.01.2004
Tanca, A., “Human Rights, Terrorism and Police Custody: The Brogan Case” (1999) European Journal of International Law:
http://www.ejil.org/journal/vol1/no1/art16.html . Last visited 11.01.2004
Textbooks:
Slapper, G., Kelly, D., (2003) The English Legal System, 6th ed. Cavendish Publishing Limited, London.
Websites:
http://www.coe.int/defaultEN.asp
http://www.ejil.org/journal/vol1/no1/art16.html
http://www.hmso.gov.uk/acts/acts1998/80042--h.htm
http://www.homeoffice.gov.uk/terrorism/govprotect/leglislation/index.html
http://www.hrw.org/un/chr59/counterterrorism.html
http://web.lexis-nexis.com/professional/
http://www.liberty-human-rights.org.uk/issues/id-cards.shtml
http://www.liberty-human-rights.org.uk/issues/terrorism.shtml
http://www.sky.com/skynews/article/0,,30000-12966914,00.html
http://www.westlaw.com
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[1] Article 15, para. 3 of the Convention for the protection of Human Rights “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 therefore…”
[2] Section 12, para. 4 of the Convention for the protection of Human Rights “A person arrested under this section shall not be detained in right of the arrest for more than 48 hours after his arrest; but the Secretary of State may, in any particular case, extend the period of 48 hours by a period or periods specified by him”
[3] Information supplied by the counter-terrorism legislation section of the Home Office web site (see bibliography).
[4] The Prevention of Terrorism Act 1984 was revoked and the Prevention of Terrorism Act 1989 now stands in its place.
[5] Section 12, para. 5 of the Prevention of Terrorism (Temporary Provisions) Act 1984 “Any such further period or periods shall not exceed five days in all”
[6] Article 5, para. 1(c) of the Convention for the protection of Human Rights “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”
[7] Article 5, para. 3 of the Convention for the protection of Human Rights “Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article 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 pending trial.”
[8] (1988) 11 EHRR 117
[9] Article 8, para. 1 of the Convention for the protection of Human Rights “Everyone has the right to respect for his private and family life, his home and his correspondence”
[10] Source of quote: http://www.liberty-human-rights.org.uk/issues/id-cards.shtml
[11] Article 15, para. 1 of the European Convention of Human Rights “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 its other obligations under international law”
[12] Article 15, para. 2 of the European Convention of Human Rights “No derogation 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.”
[13] Chapter 42, Sched. 3, para. 9.

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