Routledge Handbook of Law and Terrorism

Genevieve Lennon, Clive Walker, Genevieve Lennon, Clive Walker

• Publisher: Routledge
• Year: 2015
• eBook ISBN: 9781134455164
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

In the years since 9/11, counter-terrorism law and policy has proliferated across the world. This handbook comprehensively surveys how the law has been deployed in all aspects of counter-terrorism. It provides an authoritative and critical analysis of counter-terrorism laws in domestic jurisdictions, taking a comparative approach to a range of jurisdictions, especially the UK, the US, Australia, Canada, and Europe.

The contributions to the book are written by experts in the field of terrorism law and policy, allowing for discussion of a wide range of regulatory responses and strategies of governance. The book is divided into four parts, reflective of established counter-terrorism strategic approaches, and covers key themes such as:

• Policing and special powers, including surveillance
• Criminal offences and court processes
• Prevention of radicalisation and manifestations of extremism
• Protective/preparative security
• The penology of terrorism

In addressing counter-terrorism laws across a broad range of topics and jurisdictions, the handbook will be of great interest and use to researchers, students and practitioners in criminal law, counter-terrorism, and security studies.

1

Introduction

Genevieve Lennon and Clive Walker

Framing the law and terrorism

Triggering events

Terrorism laws have proliferated since the events of 9/11. Those attacks were deemed to demonstrate to the world not only a heightened risk of terrorism but also need for imperative action by all states. That message was promulgated immediately by the United Nations Security Council which, by Resolution 1368 on 12 September 2001, ‘Call … on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions…’. Further details followed in Resolution 1373 of 28 September 2001, which required compliance with international laws against terrorism financing, the passage of domestic laws against recruitment and other forms of support, no safe havens, and the institution of the Counter-Terrorism Committee (CTC) to chivvy national implementation. This intervention demanded a substantial augmentation of pre-existing requirements to impose economic sanctions on those linked to the Taliban and Al Qa’ida.¹ The international clamour for action by no means ended in 2001, and aside from the ongoing activities of the CTC, new demands have been issued in 2005 for laws against the incitement and glorification of terrorism² and in 2014 against the phenomenon of foreign terrorist fighters being exported to theatres of conflict such as Iraq and Syria.³ Expressions of concern about the impact on human rights have tended to take longer to develop, whether in international or domestic laws.⁴

Leaving aside to other works the development and implementation of the international law against terrorism,⁵ this Handbook focuses upon the domestic law reactions to terrorism that have flowed from these triggering events. Our mission is to deliver an authoritative, comprehensive, and critical analysis of how laws are, and ought to be, invoked in domestic jurisdictions against terrorism. In furtherance of that objective, we shall next consider the framing concepts that have impacted on the manifold reactions of states.

Potential framing concepts

In the days after 9/11, it seemed that a binary between either ‘Total War on Terror’ or ‘Total Counter-Terrorism’ was presented as the fundamental frameworks to be selected. The ‘Total War on Terrorism’ was adopted as the headline US reaction by President George W Bush on 20 September 2001:⁶

Our war on terror begins with al Qaida, but will not end until every terrorist group has been found, stopped and defeated… And we will pursue nations that provide aid or safe havens to terrorists. Every nation, in every region, now has a decision to make: either you are with us, or you are with the terrorists.

The rhetoric of this ‘Global War on Terror’, as it became known, has been considerably toned down since President Obama assumed office in 2009.⁷ But, with drones still busy and detention facilities in Guantánamo Bay still populated, the overall stance cannot yet be depicted as ‘postwar’.⁸ Other countries too have played a part in the ‘Total War on Terror’, especially by participating in the conflict in Afghanistan (and latterly in Iraq and Syria against Islamic State) and also by facilitating US activities relating to irregular rendition and detention.⁹ Conversely, the alternative approach of bringing terrorist leaders before international criminal courts remains untested, albeit that the then UN High Commissioner for Human Rights, Mary Robinson, considered that crimes against humanity under the Rome Statute 1998, article 7, had been perpetrated on 9/11.¹⁰ However, even in the US,¹¹ domestic counter-terrorism laws have been reinforced (especially by the USA PATRIOT Act 2001),¹² and it is this option of ‘Total Counter-Terrorism’ that is explored in this book reflecting, overall, a drift from the ‘Total War on Terror’ to ‘Total Counter-Terrorism’.

Before exploring further, it might be questioned whether this drift from one approach to another is desirable or not. On the one hand, military deployment against terrorism can enjoy some advantages. It meets some public and media expectations for severe and punitive action, which may foment dissent and deterrence amongst the terrorists. On the other hand, the ‘Total War on Terrorism’ approach tends to involve blunt military instruments, the effectiveness of which can be questioned. Recently, the House of Commons Defence Committee report, Securing the Future of Afghanistan, concluded that after a decade or so of involvement, ‘The best the UK can do is to withdraw in good order and engage with external partners to improve the chances of Afghanistan going forward.’¹³ Likewise, President Karzai mused in October 2013 about a failed mission that had left his country unstable.¹⁴ This mode of approach is also highly controversial because of its disregard for the regular safeguards of civil society and international law.¹⁵ The doctrine of the ‘Global War on Terror’ was consequently rejected by the UK former Foreign Secretary, David Miliband, who stated that ‘the notion is misleading and mistaken. The issue is not whether we need to attack the use of terror at its roots, with all the tools available. We must. The question is how.’¹⁶

The ‘Total Counter-Terrorism’ approach is meant to reflect some recognition of the importance of broader concepts of ‘human security’.¹⁷ One might find some resonance here with more philosophical approaches to the meanings of security as sûreté and securité, translated as notions that by sûreté, citizens gain security only through Hobbesian sovereign power, whereas that sûreté can threaten the securité of the individual in the Lockean perspective of a citizen requiring protection against the state.¹⁸

In order to impose a clear and coherent framework upon the delivery of ‘Total Counter-Terrorism’ in substance, this book adopts a policy-driven strategic approach. Counter-terrorism strategic policy provides for the most rational and coherent way of making sense of the relevant laws, even though this basis for rationalisation is post hoc, given that crisis events have often been the true prompt for new laws. One of the clearest and most sophisticated expositions of domesticated counter-terrorism strategy can be found in the UK’s Countering International Terrorism strategy documentation (‘CONTEST’), which was first published in 2006.¹⁹ Delivery of the strategy continues to be organised around four principal workstreams as follows:

• Pursue: to stop terrorist attacks.

• Prevent: to stop people becoming terrorists or supporting violent extremism.

• Protect: to strengthen our protection against terrorist attack.

• Prepare: where an attack cannot be stopped, to mitigate its impact.

The CONTEST framework has been highly influential, being reflected, if not reproduced wholesale, elsewhere. Thus, the European Union Counter Terrorism Strategy 2005 commits the EU ‘[t]o combat terrorism globally while respecting human rights, and make Europe safer, allowing its citizens to live in an area of freedom, security and justice’.²⁰ While Member States retain the primary responsibility for combating terrorism, the EU role is important and comprises: strengthening national capabilities;facilitating European cooperation; developing collective capability; and promoting international partnership. The Strategy is divided into the four pillars: ‘Prevent’, ‘Protect’, ‘Pursue’, and ‘Respond’. This taxonomy sounds very redolent of the CONTEST approach and in substance is identical since ‘Respond’ covers the ‘Prepare’ agenda.

Next, the US National Strategy for Combating Terrorism 2006 adopts short-term goals, including killing or capturing terrorists, denying havens and material resources, as well as strengthening resilience (mainly the task of the Department for Homeland Security); the longterm project is to win the battle of ideas, ultimately by ‘the advancement of freedom and human dignity through effective democracy’.²¹ In this way, ‘Pursuit’, ‘Protect/Prepare’, and ‘Prevent’ are reflected, though the means adopted reveal some marked differences because of the rhetoric of ‘the war on terror’ and its later modulations.

Finally, there is the United Nations Global Counter Terrorism Strategy 2006.²² That document places great emphasis on addressing the conditions conducive to the spread of terrorism and state capacity building that must be placed alongside the military and policing measures to prevent and combat terrorism, which were emphasised in September 2001. It also crucially encompasses in Part IV ‘Measures to ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism’, the absence of which from the mechanisms put in place in 2001 has been an enduring criticism. Overall, the United Nations Global Counter Terrorism Strategy 2006 betrays more similarities than differences to the UK’s CONTEST strategy, though it does emphasise that ‘Pursuit’ and so on must be set within a ‘human security’ context, which gives emphasis to the root causes of terrorism. The concept of human security remains controversial and has not been broadly incorporated into national legal policy, and so it will be tackled in the context of ‘Prevent’ rather than as a distinct strategy.

The canvass on which the laws of ‘Total Counter-Terrorism’ have been inscribed since UNSCR 1373 is vast and complex, so that ‘Total Counter-Terrorism’ has reached the four corners of the world.²³ Some indication has already been given of US-based reactions, which have varied from Presidential Military Orders²⁴ pursuant to the ‘Total War on Terror’ through to detailed legislation, such as the USA PATRIOT Act 2001,²⁵ which is designed to bolster surveillance, prXotective security, and criminal prosecutions. The neighbours of the US have been expected to follow suit, and Canada has been an active²⁶ and sometimes overly compliant²⁷ partner. Within Europe, there is a contrast not so much between common law and civil law jurisdictions but rather between jurisdictions that had already experienced a long pre-9/11 history of terrorism²⁸ and those that have been (often reluctant) latecomers to the field.²⁹ The message that specialist counter-terrorism laws are obligatory has also reached Africa,³⁰ Asia,³¹ and Australasia,³² though it has sometime taken prolonged pressure to achieve results.³³

In response, some authors have attempted to draw up similarities and differences between laws on a global scale,³⁴ or in the common law sphere,³⁵ or in civil law systems.³⁶ Many more have adopted thematic approaches, such as relationships between counter-terrorism laws and human rights, or the role and impact of the judiciary or other branches of state.³⁷ Our own favoured approach tends towards the thematic. Given the scale of law-making since 9/11, it would not be an availing approach to attempt to cover in one book every jurisdiction (or even every ‘leading’ jurisdiction) or every manifestation of counter-terrorism laws. As a result, our main focus will be on some of those jurisdictions that have taken the lead in producing legal innovations and setting legal standards, but, within that context, we shall adopt a thematic approach to the substance of counter-terrorism law, examining categorical approaches rather than specific instances. We shall equally place emphasis upon critical commentaries not only from academic commentators but also from official reviews, whether by specially appointed national reviewers³⁸ or committees or by international officers such as the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

Scheme of book contents

This Handbook builds upon, but does not purely or exclusively reproduce, the boundaries set by the UK’s CONTEST documentation. Instead it amalgamates the variations in these different statements of policy-driven strategies. It will use ‘Prevent’, ‘Prepare’, ‘Protect’, and ‘Pursue’ as shorthand for the strategic objectives that have been discussed. Adapting therefore from CONTEST, this Handbook is divided into four Parts: ‘The boundaries and strategies of national counter-terrorism laws’; ‘The pursuit of terrorists by criminal process and executive measures’; ‘Protective security’; and ‘Preventive measures’.

Part I: The boundaries and strategies of national counter-terrorism laws

Part I will set out the boundaries and strategies relevant to counter-terrorism. A fundamental boundary that applies, no matter which strategies and consequent tactics are adopted, relates to the definition of ‘terrorism’. This is explored in Chapter 2 that examines how ‘terrorism’ came to be conceived of as a legal concept in the mid-twentieth century, expanding across states that experienced national liberation or separatist violence through, in the 1970s and 1980s, to states confronting extreme left-wing or political violence. The chapter charts the various – ultimately futile – attempts at obtaining an international consensus on the definition, and the use of sectoral counter-terrorism measures. Turning then to conceptions of terrorism since 9/11, measures by the UN Security Council and the question of whether terrorism is a customary international crime are considered alongside analysis of the trends in terms of national legal definitions of terrorism. While a definition serves various functions, including demonstrating societal condemnation and triggering special powers, legal definitions carry great risks to human rights. Additional discussion of the definitions of terrorism in particular jurisdictions and their impact in relation to Pursuit, Prevent, Protect, and Prepare is found across the collection. Drawing in particular on the work of Schmitt and Agamben,³⁹ it has been argued that no limits should be placed on the state’s efforts at self-preservation in the face of exceptional threats. This question of what, if any, limits should be placed on the state in its fight against terrorism, and how the often conflicting objectives of individual freedoms should be weighed against collective security is examined through the lens of the Spanish and British experiences of, and legal reactions, to terrorism in Chapter 3 with a focus on the adoption, in both jurisdictions, of the ‘criminal law of the enemy’.⁴⁰ This deviation from the ‘criminal law of the citizen’ removes terrorist suspects from regular criminal norms and precepts, viewing them solely as sources of danger. Examples include pre-emptive powers, the curbing of procedural rights, and the severity of sentencing. Such ‘enemy’ law carries significant risks for the conscionable treatment of individuals and the legitimacy of the liberal democratic state. Another boundary, albeit one which has been becoming more blurred, is that between war and terrorism. Chapter 4 ex...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Table of abbreviations
• Contributors
• Preface, David Anderson QC
• 1 Introduction
• PART I The boundaries and strategies of national counter-terrorism laws
• PART II The pursuit of terrorists through national criminal justice process and executive measures
• PART III Protective security
• PART IV Preventive measures
• Bibliography
• Index