In UK, the issues of infringement of human rights in relation to anti-terror began when the House of Lords in December 2004, ruled out that the preventative detention powers of the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 violated the prohibition of discrimination. Dominik Bender (2004) examined the implications of immigration laws to combat terrorism (Lord Carlile of Berriew Q.C, Home Office). Daniel Moeckli (2008) investigated the practices of liberal democracies after the September 11 attacks on the U.S.A, which had systematically discriminated the liberty interests of the other groups of people. The aim of his study was to uncover how the war on terror had restricted the liberties of different categories of persons is compatible with these human rights.
The Anti-Terrorism Crime and Security Act (ATCSA) 2001 gave powers to executive detention of foreign terrorist suspects, the prevention of Terrorism Act 2005 gave special powers to the Home Office to impose control orders to the terror suspects (Home Office). The Terrorism Act 2006 created more terrorists offences and extended police powers. In 2007 until recently further plans were announced to introduce new anti-terrorism laws to extend the time limit on police detention without charge (Wilson, 2005, p108). This was a call to give more powers to the authorities to continue questioning the terrorists suspects even after discharge, also the constant surveillance of their movements through CCTV and the establishment of a new data sharing systems among police and other intelligence organizations.
The digest of jurisprudence of the United Nations (U.N) and Regional Organizations on the protection of human rights while countering terrorism addressed that human rights laws have to be fairly applied in accordance to the leg mate national security and protection of fundamental freedoms, therefore human rights must be applied in the context of the right to non-discrimination. The Secretary General stated that defending human rights of all not only those suspected of terrorism, but also those victimized by terrorism, and those affected by the consequences of terrorism was essential to all components of an effective counter-terrorism strategy (U.N).
It has become a norm in Europe that after a terrorist attack, new security legislation and other measures are established to combat the threat of terrorism, however most of these policies seem to have neglected the human rights of the minority groups. Conor Gearty (2003) politically highlighted the legal significance of response to terrorism which respects human rights, as
“The spuriously deployed notion of the terrorists is the cornerstone of the counter terrorist enterprise; if it can be dislodged then it will be a small victory of many of the things that we hold valuable and which collectively help to civilize us; integrity in our use of language; honestly in our moral judgments; consistency in our approach to international affairs; respect for the human rights of all and not just those we know. At the very least, the political air would be easier to breathe if this fog of dangerous liquistic vacuity could somehow be lifted” (Moeckli, 2008, p2).
Conor (2003) stated that human rights laws needs to be respected to all individuals regardless of their origins and other implications of discriminatory activities, as the law enforcement methods contribute to the continual threat of peace across Europe. In most of the European countries legislation on terrorism are similar if not the same.
Unlike the U.S.A and the U.K, Germany had been combating domestic terrorism for decades, this gave it experience in tailoring its laws to meet the challenges of security (Beckman, 2007, p89). In German, the parliament approved two anti-terrorism Legislations immediately after the September 11th attacks on America. The first package created laws to ban religious groups with extremist tendencies and criminalized membership and support of foreign-based terrorist organization. The second package, known as Terrorismusbeka”mpfuhgsgesetz (Anti-Terrorism Act) gave powers to information gathering and surveillance system of intelligence services, this act also gave more powers to the Bundesgrenzschutz (Federal Border Guard). In 2005, the Luftsicherheitsgesetz (Aviation Security Act) gave powers to the armed forces, air carriers and airport companies to protect the aviation from terrorist attacks. It is worth to note that all the terrorism legislation talked about so far seek to protect members of the society from terrorists, as if terrorists where not members of the society. The question which arises is why is it that the European countries established these specific legal regimes, creating new terrorist offences and authorizing special powers and procedures to deal with terrorism for the law enforcement agencies.
The Germany Terrorism Act 2006 gave powers to the law enforcement to request for information from social insurance agencies therefore the law enforcement applied a wide discretion on deciding how and who see information insurance agencies.
Numerous instruments were deployed internationally to protect human rights to all persons. The Universal Declaration of Human Rights (UDHR) of 1948 guarantees the right to equality and non-discrimination. The international government on Civil and Political Rights (ICCPR) prohibits discrimination on race, nation or ethnic origin. Daniel Moeckeli (2008) questioned if these human right laws would really be effective on the current situation of terrorist threat. The most common issue that was seen to divert from the international human rights legislations is the executive Detention of foreign terrorist’s suspects. In a letter from nine men detained in Belmarsh, expressed their emotions to the officials, by saying “We have never had a trial. We were found guilty without one. We are imprisoned indefinitely and probably forever, we have no idea why. We have not been told what the evidence is against us. We are here. Speak to us. Listen to us” (Moeckli, 2008, p99).
The detention of suspected terrorists is one of the measures the European States have adapted to as a tool to fight terrorism. Executive detention are generally not prohibited, they are deployed in times of crisis like terrorism, criminal suspects, the mentally ill, drug addicts and to all those who pose a risk to national security (Beckman, 2007, p92). These executive detention powers are mostly applied to foreign nationals therefore this is seen as discriminatory to other individuals. For example, many foreign nationals are continually detained in Guantanamo Bay by the Americas. Guantanamo Bay is a Prison operated by the Americans outside their territory land because of fear that they violet human rights of these in custody there. The British Home Office suggested the implications of executive detentions by stating “While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The government believes that such draconian powers would be difficult to justify. Experience has demonstrated the dangers of such an approach and the damage it can do to community cohesion and thus to the support from all parts of the public that it is so essential to encountering the terrorist threat” (Moeckli 2008, p115).
This statement draws on distinction between the exceptive detention of citizens involved in terrorism and foreign nationals. Foreign national’s detention without trial is clearly justified to protect the national security. As mentioned in previous paragraphs that the European nations are under international and national law-which mainly prohibits discrimination, despite this the States considerable treat foreign nationals suspected of terrorism differently to domestic terrorist (Moeckli 2008, p130). Powers of executive detention that are deployed to foreign terrorist’s suspects oppose the international human rights legislations. This different treatment of foreign terrorists and domestic terrorist was unsuitable and ineffective in combating terrorism, it only fueled more hatred and terror activities among societies and nations, and it had been proved not prevent terrorist threats (Townshend 2002, p6).
The trial of foreign terrorist suspect is different from that of a citizen suspected of terrorism. The foreign terrorist suspect does not have the same rights and safe guards in the judicial process. The right to non discriminatory suggests that all criminals should be tried by the same judicial system. However, most European States have developed special tribunals to try foreign terrorist’s suspects. Recently European States have resulted to the alternative court structures, even though there is no proof that the normal judicial process has failed to try foreign terrorist’s suspects. There are no reasonable grounds to try foreign suspects in separate courts systems as this only gives room for discrimination in the passing of sentences, therefore a breach to the international and national laws on human rights. The United Nations basic principles on the Independence of the Judiciary stated that “Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures” (Moeckli 2008, p131).
Most European States have established special tribunal courts which involves special experts to deal with cases of asylum and young offences. However in the military courts a non accused soldier cannot be released on bail, does not have the right to jury trial and is not necessary legally represented at the trial. This issue rises that most of the foreign terrorists suspects are associated with the military proceedings therefore they are subjected to the terms and conditions of the court martial. Immigration was another area which was flooded with new legislation and laws to tackle terrorism.
The laws on immigration are not harsh when traveling within Europe. A link has been developed between the administration of immigration control and national security. The immigration laws and policies can be said that they are used as a tool to fight foreign terrorists, this had changed the shape of immigration and globalization. After the 7th July London bombings, the Security Council called for all the European States to strengthen their borders and immigration laws in an attempt to block the terrorists from entering into Europe. In this it is clear that the terrorist is seen as a non-European person, this proves to be problematic as “terrorism” is an idea which can be used by any individual anywhere (Richardson 2006, p143).
There had been a rise in fraud of travel documents and this can be the direct effect of the tight screening when applying for passports. Therefore it is argued that the authorities had been given too much power in monitoring of suspects, increase border control powers, expulsion, and exclusion data sharing in the immigration. The immigration laws and policies have been used to detain terrorist suspects until they are investigated. Deportation of foreign nationals on national security grounds is applicable and justified. The implication of using immigration as a tool to fight terrorism is that it contributes to the social constructions of immigration such as refugees, asylum seekers, religion and race. It was until after September the 11th where immigration laws concentrated on grounds of nationality, race, ethnicity and religion as key components in their investigations. The international convention on the elimination of all forms of racial discrimination (ICERD) stated that the prohibition of distinctions on the basis of race, color, descent or national or ethnic origin. Shortly after the London bombings Ian Johnston, chief constable of British transport police stated that “We should not waste time searching old white ladies. It is going to be disproportionate. It is going to be young men, not exclusively but it may be disproportionate when it comes to ethnic group” (31st July, 2005). According to the new immigration laws and policies some activities discriminate the minority groups in the fight of terrorism (Wilson 2005, p109).
To conclude Richard Wilson states that human rights since the attack on the world trade center in the U.S.A and the war on terror are a luxury one can not afford. It is clear that these policies have caused damage to the democracy and human rights not only in Europe but worldwide. Therefore it should call on all the international policy makers and activists in the field of human rights to develop a counter terror strategy which will take human rights seriously.
Bibliography
Beckman J (2007) Comparative Legal Approaches to Homeland Security and Anti-terrorism Ashgate Publishing Ltd
Elworthy S and Rifkind G (2006) Making Terrorism History Rider London
Scott M G et al (2004) 21 Debated Issues in the world Politics 2nd edition Pearson education
Scraton P (2002) Beyond September 11th An Anthology of Dissent Pluto Press
Richardson L (2006) What Terrorists Want Louise Richardson London
Moeckli D (2008) Human Rights & non Discrimination in the War on Terror Oxford University Press
Mill J S (1982) On Liberty Penguin Books London
Townshend C (2002) Terrorism A very Short Intro Oxford University Press London
Wilson R (2005) Human rights In the war on Terror Cambridge University press
Assessed 21st May 2008
Assessed 22nd May 2008
http://security.homeoffice.gov.uk/news-publications/publication-search/anti-terrorism-crime-securityact Assessed 22nd May 2008
Assessed 22nd May 2008
