Beyond Human Rights and the War on Terror

Satvinder S. Juss

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351006040
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

This edited collection provides a comprehensive, insightful, and detailed study of a vital area of public policy debate as it is currently occurring in countries across the world from India to South Africa and the United Kingdom to Australia. Bringing together academics and experts from a variety of jurisdictions, it reflects upon the impact on human rights of the application of more than a decade of the "War on Terror" as enunciated soon after 9/11.

The volume identifies and critically examines the principal and enduring resonances of the concept of the "War on Terror". The examination covers not only the obvious impacts but also the more insidious and enduring changes within domestic laws. The rationale for this collection is therefore not just to plot how the "War on Terror" has operated within the folds of the cloak of liberal democracy, but how they render that cloak ragged, especially in the sight of those sections of society who pay the heaviest price in terms of their human rights.

This book engages with the public policy strand of the last decade that has arguably most shaped perceptions of human rights and engendered debates about their worth and meaning. It will be of interest to researchers, academics, practitioners, and students in the fields of human rights law, criminal justice, criminology, politics, and international studies.

1 Assessing unconventional applications of the “terrorism” label

Sudha Setty¹

Introduction

When the government deems a situation to involve anything labeled as “terrorism,” a lot of things happen. Resources that are not available in other contexts are made available for the government to investigate and surveil suspects. The legal authority of the government to investigate, detain, interrogate, and punish increases dramatically. The right of the public to access information about the government’s actions diminishes significantly. The willingness of legislatures and judges to engage in meaningful oversight wanes. The sense of fear experienced by much of the public, as well as the societal stigma associated with the underlying suspect behavior, skyrockets.

Fully understanding what acts qualify as terrorism such that the enormous power of the law and the government ratchets up is essential. Yet international law has failed to define it fully, and lawmakers and judges in numerous countries struggle to understand the parameters and the application of the term. This ambiguity has been used by politicians and government officials for a variety of goals: sometimes to increase public fear and reduce levels of scrutiny by other branches of government,² sometimes to recognize a traditionally underfunded or politically marginal issue as “terrorism” in a good faith effort to increase public attention and resources, but sometimes for political manipulation such that non-terrorism crimes are redefined as terrorism, bringing with it all of the consequences that follow.

This chapter explores some non-conventional applications of the label of “terrorism” and considers calls for continued expansion of the definition of terrorism to encompass crimes that have not traditionally been considered terrorism.³

The first part briefly lays out the working definition of terrorism on an international level, and the gray areas in which individual nations make their own determinations as to what constitutes terrorism and what is instead considered ordinary crime.

The second part focuses on the definitions of terrorism under a number of common counterterrorism statutes in U.S. federal law, and then considers contexts that fall outside of the common usage terrorism in the context of U.S. law, exploring instances in which gang violence and animal rights-based crimes are treated legally as terrorism.⁴

The third part briefly considers the application of the label of “terrorism” in India, where concerns that broad and vague definitions of terrorism, religious bias against Muslims, and targeting of disfavored political minorities, combined with extraordinary powers granted to the government to deal with the threat of terrorism, pose a serious risk to due process and the rule of law.

Some have called on governments to continue to broaden the reach of counterterrorism law to reach other issues, such as sex trafficking⁵ or some mass shootings.⁶ This chapter concludes that most such efforts are founded in a good faith belief that the resources available to counterterrorism efforts will benefit other social justice causes,⁷ while some efforts are backed by powerful groups with political influence. However, because in many democratic nations terrorism is granted unique legal treatment as an area in which expansive government power with lessened oversight and protection for individual rights is considered acceptable, importing such standards into other contexts is inviting a distortion of the traditional limits on governmental power and would allow for increases in government abuse and overreach.

The Definitional Dilemma

The quest to establish a universal definition of terrorism is entangled in law, history, philosophy, morality, and religion. Many believe that the definitional question is, by nature, a subjective one that eludes large-scale consensus. However, to address the problem of terrorist activity, the law must first define terrorism’s parameters. This foundational question is of the utmost importance in determining who a state, nation, or international body will consider a terrorist and, therefore, who will be subject to the stricter laws, diminished rights protections, and harsher penalties that are concomitant with the designation of “terrorism.” For example, in different jurisdictions, the designation of terrorist activity could result in the criminalization of otherwise protected speech,⁸ a significant delay in access to counsel and other criminal due-process protections,⁹ trial in a specialized court with fewer protections for defendants,¹⁰ and, if convicted, significantly enhanced sentences for crimes.¹¹

The definitional ambiguity surrounding terrorism, along with the heightened legal and societal consequences of being designated as a terrorist, gives rise to international concern that governments will undercut civil liberties and civil rights by defining terrorism in an overly broad manner, allowing them to unfairly punish those who would not, in most situations, be considered by the international community as “terrorists.”¹²

The United Nations General Assembly has tried to establish an internationally accepted definition of terrorism numerous times since the 1960s,¹³ with the belief that “the effectiveness of the struggle against terrorism could be enhanced by the establishment of a generally agreed definition of international terrorism.”¹⁴ Each effort, however, failed based on the perceived subjectivity of any such definition, with some countries seeking exemptions for freedom-fighting or anti-colonial violence,¹⁵ and others seeking to ensure that state-sponsored violence is not categorized as terrorism.¹⁶ Nevertheless, almost all nations agreed that the definition of “terrorism” included common core elements such as the purposeful killing of civilians.

With a strong post-September 11 mandate to establish robust counterterrorism measures,¹⁷ but without universal definition of terrorism on which to depend, the United Nations Security Council has established partial measures, such as including general descriptions of acts that fall within the rubric of terrorist activity without purporting to fully define terrorism. One working definition used by the United Nations is:

Terrorism is, in most cases, essentially a political act. It is meant to inflict dramatic and deadly injury on civilians and to create an atmosphere of fear, generally for a political or ideological (whether secular or religious) purpose. Terrorism is a criminal act, but it is more than mere criminality.¹⁸

Security Council Resolution 1566 offers this partial definition:

criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism … .¹⁹

Although seemingly expansive, Resolution 1566 limits the use of the label of “terrorism” to offenses that are recognized in previously agreed-upon international conventions and protocols, thereby tethering the implementation of Resolution 1566 to offenses commonly understood to fall under the umbrella of terrorism. Further, the language of the resolution limits its application to acts that are intended to provoke terror and/or compel a political response from a government.

Even with these interpretive limitations, the Security Council went further in protecting individuals and organizations from inappropriate designation as “terrorists” given the harsh consequences of such a designation. The Security Council designated an Ombudsperson to field petitions from individuals and organizations seeking to be delisted from being subject to international sanctions as terrorists.²⁰ Concerned about the severe repercussions of being designated as a terrorist, various Member States also moved to make the designation process more transparent, allowing for a challenge and delisting process for individuals and organizations, and strengthening international security by bolstering the perceived legitimacy of the United Nations as a regulator of security matters.²¹

Non-traditional applications of “terrorism” in the United States

In the United States, federal law and agencies utilize dozens of different definitions of terrorism based on the function of the agency and the purpose for which the definition is used.²² Two commonly used federal definitions can be found in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)²³ and the USA PATRIOT Act (“Patriot Act”) of 2001,²⁴ and they are worth considering here in terms of applying “terrorism” to conventional and unconventional contexts.

The AEDPA was enacted in response to the 1993 World Trade Center bombings and the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City as part of a broader plan to prevent material support to terrorists that was seen as essential to those bombings. Under the AEDPA, terrorism is defined as:

An activity that involves a violent act or an act dangerous to human life, property, or infrastructure, and appears to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of government by mass destruction, assassination, kidnapping, or hostage-taking.²⁵

The AEDPA is a wide-reaching statute, defining terrorism for the purpose of designating Foreign Terrorist Organizations (FTOs) and freezing the assets of such organizations.²⁶ The consequences of FTO designation can be severe—financial intuitions may block or freeze assets of an FTO,²⁷ individuals may be barred from entry into the United States,²⁸ and material support to such an organization is a criminal offense carrying potentially lengthy prison sentences.²⁹ Therefore, the procedural safeguards for erroneous designation, however limited, are crucial.

One such safeguard in the FTO designation process is the opportunity to contest the designation proposed by the State Department. This layer of judicial review offers some protection against arbitrariness in the designation that might otherwise constitute a substantive due process violation, and requires some disclosure of the basis upon which the State Department made its determination.³⁰ A second important safeguard is the mandatory review and renewal process: at least every five years, the State Department must review the designation to determine whether it should be revoked based on changes to the organization’s actions or in the national security assessment by the United States.³¹ These safeguards echo the review and delisting process that the United Nations adopted to improve procedural protections against erroneously being labeled as a terrorist and suffering the ramifications of that inappropriate designation.

The Patriot Act is also a reactive statute, passed in immediate response to the September 11, 2001 attacks. It includes a panoply of counterterrorism resources for the government: an increase in surveillance powers and government authority to conduct intelligence-gathering operations in matters of suspected terrorism, allowing for the civil seizure of assets based only on probable cause, heightened punishments for any of the underlying crimes related to the newly broadened understanding of “domestic terrorism,” and numerous other powers.

The Patriot Act definition of terrorism includes:

[A]cts dangerous to human life that are a violation of the criminal laws of the United States or of any State [that] appear to be intended to intimidate or coerce a civilian population; to influen...