Counter-Terrorism Legislation and Fundamental Rights
PhD Student on Faculty of Law, University of Brasília, Brazil
Abstract: In this article author addresses national security documents of United States (US) and European Union (EU) and later measures their impact on constitutional and fundamental rights. That is why the paper starts with demonstrations of definitions about terrorism that can be found in most important national and international documents and security strategies. Later, through analysis of documentation, the matter shall come to the power of counter-terrorism legislation in EU and US and lead to presentation of two different approaches in understanding counter-terrorism legislation, the ones that author found appropriate to be part of the paper and that were also named by the same. Situation on counter-terrorism legislation in Brazil shall be described just before author concludes that none of the above described approacher are solution for current “game on fundamental rights” and tries to answer the previously presented debate by posing possible solution and ground point to the future research.
Keywords: counter-terrorism, legislation, fundamental rights, definitions, law.
Fundamental rights and freedoms were created and fought as ideals that should have been protected and preserved for many generations in the future and to give a new frame for understanding relation between individuals and their governments. The project called Universal Human Rights is one of the greatest civilization pride ever made with most amazing diplomatic efforts performed in the history. Still, with the new world order, better said globalized order where main goal became to protect its national sovereignty and integrity, national security passed into being both – mean and the goal. Considered like that, it has started to be slowly put before human rights. After first greater terrorist attack on the soil of United States of America (US), the things started rapidly to develop in the direction of absolute protection of the national security which made huge impact on legal structure of many countries, especially those that have suffered terrorist attacks. That is why the story on counter-terrorism legislation has to start with September 11. The terrorist attacks on US on September 11, 2001, took more than three thousand lives and changed image of the world. Photos of “burning twins” circled the planet in just couple of hours and became the symbol of new American “war on terror”, as George W. Bush named the future compass of American foreign affairs. On the other side of the Atlantic, European Union (EU) has firmly denounced the attacks on US and promised all need support to her alliance over the sea. Furthermore, in the wake of other terrorist attacks since September 11, such as the Bali bombings of October 12, 2002, the Madrid bombings of March 11, 2004 and the London bombings of July 7 and 21, 2005, western nations have sought to consolidate, and indeed to extend upon, this post-September 11 body of counter-terrorism law.
The indicated counter-terrorism legislation, has made impact on traditional structure and nature of legal principles, especially when it starts dealing with the impact on human rights. These include human rights that underline western liberal democracies such as the right to silence, the rights to freedom of expression and association and the right not to be detained except after a fair trial. The impact of these counter-terrorism laws upon such a principles has been their most controversial aspect. The laws have upset long held understandings of how legal systems should operate, especially in regard to the treatment of criminal suspects and the powers given to investigating authorities. Even before terrorist attacks in US, on World Conference on Human Rights in Vienna in 1993, some country officials, mostly coming from Asia, had stated that human rights need to be limited and that cannot be consider universally. The foreign minister of Singapore warned that “universal recognition of the ideal of human rights can be harmful if universalism is used to deny or mask the reality of diversity.” (2) Even though Asia and so-called Western countries don’t share same ideological tradition about human rights, this statement perhaps gives clear affirmation for present happening in this context. Answer on the question what is more important, public safety or fundamental rights was more obvious before. After “war on terror” the answers became not so clear and doubts rose. Still, statement of Chinese foreign minister that “Individuals must put the states’ rights before their own.” (3) in 1993, shows that present Asian and “western” thinking are not so distinct today.
Examination of national and international legal documents about terrorism is essential research ground point for this work that aims to sketch a general picture of the new statutory regimes and to demonstrate their negative effect on fundamental rights. Even though this type of full analyze would be at least very rich, the paper in the following Chapters will stay in the frames of US and EU documentation. However, at the end of the work, Constitution and National Strategy of Defense of Federative Republic of Brazil (Brazil) shall be examined in order to show its relation towards counter-terrorism legislation. Albeit, this part will have just presentation character, because as it will be presented, Brazil still doesn’t possess clear position on terrorist issues, nevertheless counter-terrorism legislation. The work will try to explain counter-terrorism legislations and their impact on human rights, by presenting and explaining two approaches – orthodox approach and balancing approach. Differences between these theoretical explanations are important in order to show how the main academic writings nowadays are upcoming to the problem of clear jeopardizing of fundamental rights through legal documents and jurisprudence. The author will try to remind on basis of constitutional rights as absolute and theoretical proves of hazard that overly balancing can cause.
The work will come to conclusion that the limitation of the fundamental rights in US and EU is obvious and that neither orthodox or balancing methods can resolve problem of relation between national security and fundamental rights. The conclusion will summarize again all the main points of the work and try to open new ground point possibilities for the future research.
Definitions of terrorism
Fighting terrorism is like being a goalkeeper. You can make a hundred brilliant saves but the only shot that people remember is the one that gets past you.
Paul Wilkonson (4)
The difficulty in defining “terrorism” is in agreeing on a basis for determining when the use of violence (directed at whom, by whom, for what ends) is legitimate; therefore, the modern definition of terrorism is inherently controversial. The contemporary label of “terrorist” is highly pejorative and it denotes a lack of legitimacy and morality.
“What is terrorism? (….) That is a method whose roots go deep in the history. Terror means big fear, and even governments during French Revolution and Soviet Union were using it to control their population.”(5) Such a broad definition of this notion, which puts it only in the category of not-good, is may be the best start point in understanding the same. However, there are still many argues and different opinions, like a famous sentence says “one man’s terrorist is another man’s freedom fighter”. The best example of this situation can be seen in interview with Nelson Mandela where he says:
“I was called a terrorist yesterday, but when I came out of jail, many people embraced me, including my enemies, and that is what I normally tell other people who say those who are struggling for liberation in their country are terrorists. I tell them that I was also a terrorist yesterday, but, today, I am admired by the very people who said I was one.”(6)
Determining terrorism is divided in providing legal definitions on national and international level. On national level the situation is very diverse, from countries that do not have definition of terrorism (which is the case of Brazil)(7) to the detailed and numerous documents (perfect example are US) that make their legal body of terrorism most developed in the world (8). In National Strategy for Combating Terrorism, already in Introduction, ex president George W. Bush says: “The enemy is terrorism—premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents. ” (9) Further more, the ‘war on terrorism’ was presented as the principal fight that is defined through 4D formula: defeat, deny, diminish and defend. Under the Federal Criminal Code, Title 18 of the United States Code defines terrorism and lists the crimes associated with terrorism. In Section 2331 of Chapter 113 (A), defines terrorism as activities that: involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) “…activities that involve violent… or life-threatening acts… that are a violation of the criminal laws of the United States or of any State and… appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and…(C) occur primarily within the territorial jurisdiction of the United States…” (10) Subsequently paper will go deeper in counter-terrorism legislation of US.
UN Security Council will adopt Resolution 1566 in 2004 and gives a definition of terrorism as “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.” (11)
In European Security Strategy, terrorism for which “Europe is both a target and a base (…) It arises out of complex causes. These include the pressures of modernization, cultural, social and political crises, and the alienation of young people living in foreign societies. This phenomenon is also a part of our own society.” (12)
Whether the definition explicitly references ‘‘political, religious or ideological’’ motivations (as does the United Kingdom definition) or whether it is framed in terms of intimidating a population or a government so as to effect policy changes (as does the United States definition), these definitions have the potential to criminalize a range of political activity, such as civil disobedience, public protest and industrial action.(13) The widest definition is, the impact on fundamental rights can be grater, which this paper will try to present from the legal point of the view.
Different approaches in understanding Counter-terrorism Legislation
As the paper showed previously, the counter-terrorism policies vary in different legal documentation, but its relation in practice towards human rights mostly stays the same – the impact on the same is inevitable. Therefore, the theory is also trying to present and explain this type of relation by defining different approaches in understanding counter-terrorism legislation that has rapidly developed in last twelve years. In order to stay clear and understandable, the author chose two approaches that found appropriate to be part of this paper.
First one is conservative or orthodox approach. The orthodox way in its analysis has a method of protecting either national security, or civil liberties, as if the protection of one undermines the protection of the other. As a little different approach, shall call it conservative, it can be presented Ruddock’s understanding of counter-terrorism legislation. He starts from very clear thesis – human security is a necessary precondition to the exercise of all other human rights. Thus, whenever national governments enact counter-terrorism legislation in the pursuit of human security, even if that legislation derogates from accepted rights and freedoms in the process, it is ultimately beneficial legislation because by promoting human security it is ‘‘preserving a society in which rights and freedoms can be exercised’’. (14)
The public and individual security is important part of human rights and fundamental freedoms. Thus, protecting this right cannot mean violating it at the same time. In other words, counter-terrorism legislation shouldn’t be seen as black and white image where human rights and national security are opponent to each other. However, the view that comes from Ruddock is very questionable. He is putting right for individual and public, human security as a necessary precondition for the exercise of all other human rights. The questions we can make on this assumption would be firstly why is justified to reduce one or couple human rights in order to fulfill other human right, and if we do provide legit answer, what institution is going to fortify up to what extension the reduction of one or couple human rights is enough? Those questions stay without reply in the writings of legal scholars that are supporting this approach on counter-terrorism legislation. Like it is mentioned in the Introduction, weighing the human rights and fundamental freedoms is not only against theory and raison d’être of the institution of the fundamental rights, but theoretically impossible and morally wrong. No institution or a person cannot say one human right is more valuable or important than the other. That would mean that the documents like Constitution or Declaration of Human Rights would be interpreted differently in each case and lead to depending on the subjectivity of the court or the judge in individual matters and make judicial assessment as the primer source of the law. Moving in that direction the process could come to the point of complete moral requisitioning which would mean loosing the impartiality of the court. For example, we can decide that impinge of the right to the privacy in order to gain important information about terrorist attacks and stop possible future catastrophe and protect people, is justified. We can decide, as scholars or citizens, but also as a judge or a court, which means we all agree on it. Now, lets imagine different situation. It is asked that right to human security prevails over human right against torture or indefinite detention without trial. Would you agree that some person can be interrogated and kept in jail for indefinite time without being charged, which means that after some years or months he or she could be just released as innocent? If we cannot be sure what fundamental right is “better” and more important, than we or any other institution cannot hold scales and weigh any of our rights that we hold as the citizens and as the human beings.
Before explaining the second, balancing approach, we shall review the theory of constitutional rights. In the global legal world, it is becoming increasingly recognized that every modern legal system is made up of two basic kinds of norms: rules and principles. (15) These are applied by means of two different procedures: subsumption and balancing. While rules apply by means of subsumption, balancing is the means of applying principles. Balancing therefore became an essential methodological criteria for adjudication, especially in case of constitutional rights. The debate on balancing as a moral and legal approach are numerous, but two main questions that are always requestioned and re-examined are first juridical-philosophical question that refers on the nature of balancing, whether it is a rational procedure for applying norms or a mere rhetorical device. Second question is relevant from the point of view of constitutional rights and laws is the question of the legitimacy of the judge as the balancer, especially when the judge doesn’t have sufficient constitutional standing to apply principles from this standpoint, and that when he does so, he unduly restricts and even usurps other powers enshrined in the constitution. Moreover, the critique of Habermas would be most interesting to our work and it is that the balancing approach deprives constitutional rights of their normative power. By means of balancing, he claims, rights are downgraded to the level of goals, policies, and values. They thereby lose the “strict priority” that is characteristic of “normative points of view” (16).In this point of critique we can again turn to the problem mentioned before, problem of comparing and weighting fundamental rights. To use words of Alexy, “constitutional rights norms are considered as ruled that are applicable, in essence, without balancing.” (17) This work wont enter in the detailed nature and features of balancing, nevertheless it will use one strong argument regarded to this approach, the argument of rationality. Again, the work is not going to explain rationality distinctly, even though that is very interesting approach in observing this issue.
The balancing approach comes as a middle way between orthodox and conservative. Authors that are writing about it are commonly found as more realistic and objective than the others. They saw the same flaws we previously discussed and share thesis that impact on the fundamental rights is already happening and that it is a part of the modern politics and international security strategies, thus the process have already gone to far to be corrected and the best thing it can be done is to accept facts and institutionalize balancing of the human rights and fundamental freedoms as a part of democratic processes. In order to present this approach better, this paper uses the balancing method of B. Golder and G. Williams like it is described in their paper Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism. In their work are examined the counter-terrorism legislation systems in Australia, New Zealand, South Africa and United Kingdom and the conclusion they come up with is that the fundamental rights of the citizens in those countries are impinged due to legal system made mostly after September 11 (in some countries like New Zealand and United Kingdom was even earlier). According to their research, the rule of law as embodied in nations such as Canada, South Africa and the United States requires that all laws be subject to assessment for their compliance with constitutional norms. In such a forum, balancing can play a key role and they argue that the proper method for assessing the new counter-terrorism laws, from a human rights perspective, is to adopt a ‘‘balancing approach’’ according to which the importance of the relevant human right is weighed against the importance of the societal or community interest in deciding whether to take legislative action (or, from the position of a judge, in deciding whether a certain law is valid). (18)
According to Golden and Williams, weighting between national security and constitutional rights is not only happening in many countries, but it also abuses rights in a great deal. Historical and contemporary examples of the abuse of the rights of minority groups in times of perceived threats to national security are rife, and indeed, as the infamous United States case of Korematsu v. United States demonstrates, even the presence of a domestic Bill of Rights is no guarantee of the protection of minority rights. (19) In balancing approach security concerns versus human rights protections, must state exactly whose rights will be affected by the proposed measure. This makes no difference than already existing hierarchy of rights in European Guidelines. Besides, balancing under such a hierarchy, impact on rights is still occurring. The concept of balancing stays at the heart of many theoretical and practical discussions.
By the way of conclusion main ideas of this work shall be presented. Examination of documentation in this work was focused only to help understanding laws and documents concerned about national security, especially the ones to combat terrorism. The terrorist activities are probably the toughest, if the one has to make comparation between different crime activities. Too many innocent lives were lost in order to make political, ideological or religious point. Human security is indeed the basic of our rights, because if we are not protected, logically we cannot practice the rest of our rights. Still, does that mean that our Governments and international community have right to comply and limit all other rights in order to protect one?
Giving reasons for this is very hard because there are many arguments addressed in different cases. That is why jurisprudence doesn’t have one doctrine, one method to obey and serve. Thus, each case that confronts right to human security to another fundamental right, is in the free hands of the judge. Balancing comes as rational, natural approach. Rationality is in the centre of balancing theory and requires rational law discourse to make balancing acceptable, for the reason that if the balancing were by its nature irrational, it would have to be rejected, and with it, principles qua norms that require something irrational (20). On the other hand, Habermas will be very sure in his critique saying that there are no rational standards for balancing ‘because there are no rational standards for this, weighting takes place either arbitrarily or unreflectively, according to customary standards and hierarchies (21). Therefore, balancing can be or doesn’t have to be rational, but it is reality of the new world order, especially in new security order.
As it has been shown, both approaches don’t represent final solution. As citizens, we cede a measure of our rights and liberties to the State in order to secure the common good. Thus, in this utilitarian understanding of counter-terrorism legislation, the interests of national security and the protection of human rights are placed at opposite ends of the conceptual spectrum (…) (22). Indeed, the weight of human right should be measured at its end, in the state law. Observed as that, constitutional rights are closely connected to human rights, which is the reason that in this work both human and constitutional rights were used on the same level. Many democratic nations have followed the US model in enshrining certain rights in their constitutions. Countries whose written constitutions include a bill of rights include Germany, Indian and Japan, but most of democratic constitutions incorporate human rights in their text in high level. Universal Declaration of Human Rights has been proclaimed by UN on December 10, 1948, which was 65 years ago. We cannot ignore the fact that the world is changed since more than half a century ago. If we assent the situation as that, the possibility to answer on its challenging problems, would be to change the character and documents of human rights. This is at least very interesting idea to examine in the future, and as one academic example of the work on this matter, I shall mention Universal Declaration of Emerging Human Rights (UDEHR) that was conducted on Human Rights Institute of Catalonia in 2004. This Declaration involves a new conception of citizen participation and conceives the emerging rights as citizen rights (23). That would also mean incorporation of human rights in a great many constitutions. The value of freedom in the democratic liberal societies depends on the capacity to maintain the balance between the individual freedom in one way and the rest of the rights, the guarantee of which comes to limit these freedoms in one way or another (24). This ‘value’ according to Emerging Rights argument, should be included in the text od Declaration and in the Constitutions, which makes balancing more limited and defined. Perhaps this different approach to counter-terrorism legislative in relation to fundamental rights, could inspire Brazilian authors in order to change its neutral observing of this legal issue.
(1) This article presents selected chapters from original paper that can be accessed on: https://www.academia.edu/5278901/Counter-terrorism_legislation_and_fundamental_rights
(2) Sen, Desenvolvimento como liberdade, 2010, p. 197.
(4) Daily Telegraph, 1992
(5) Nye, Kako razumeti medjunarodne odnose, 2006, p. 300.
(6) Larry King Live, 2000 http://edition.cnn.com/TRANSCRIPTS/0005/16/lkl.00.html
(7) View Tittle Situation in Brazil, page 14-17
(8) This paper wont enter in specific national definition and in this part will only give US, EU and UN review of documents related to terrorism.
(9) National Strategy for Combating Terrorism, 2003, p. 1, Access www.gpo.gov.
(10) United States Code, 2006 Edition, Supplement 3, Title 18 – Crimes And Criminal Procedure, Access www.gpo.gov.
(11) Threats to international peace and security caused by terrorist acts, SC Resolution 1566, 5053rd Meeting, S/RES/1566 (2004), Access UN Readex.
(12) A Secure Europe in a Better World. European Security Strategy, 2003, Strasbourg cedex.
(13) Golder and Williams Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, p. 47.
(14) Ruddock cited in Golder and Williams Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, p. 51.
(15) See Alexy, A theory of Constitutional Rights, translation Julian Rivers, 2002.
(16) Habermas cited in Alexy, Constitutional Rights, Balancing and Rationality, 2003, p. 134.
(17) Alexy, The Construction of Constitutional Rights, 2010, p. 2.
(18) Golder and Williams, Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, p. 44.
(19) Ibid., p. 58.
(20) Alexy, The Construction of Constitutional Rights, 2010, p. 7.
(21) Habermas in Alexy, The Construction of Constitutional Rights, 2010, p. 8.
(22) Golder and Williams Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, p. 50.
(23)Draft of Charter of Emerging Human Rights, Institut de Drets Humans de Catalunya , 2009, p.4, www.idhc.org .
(24) Ibid., p. 9.
-Alexy, Robert, The Construction of Constitutional Rights in Law & Ethics of Human Rights. Volume 4, Issue 1, 2010, ISSN (Online) 1938-2545, DOI:10.2202/1938-2545.1042
-Alexy, Robert, Constitutional Rights, Balancing and Rationality, 2003, Ratio Juris, Vol. 16, No. 2.
-Draft of Charter of Emerging Human Rights, Institut de Drets Humans de Catalunya , 2009, Access www.idhc.org .
-European Security Strategy, A Secure Europe in a Better World, 2003, Access Strasbourg cedex.
-Golder, B. and Williams, G., Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism, 2006, Journal of Comparative Policy Analysis, Vol. 8, No. 1, 43–62.
-Kress, Lee Bruce and Wanek, Marie G., International Terrorism in the Contemporary World, edited by Marius Livingston, Greenwood Press.
-Nye, Joseph, Kako razumeti međunarodne odnose, 2006, Beograd.
-Sen, Amartya, Desenvolvimento como liberdade, 2010, São Paulo.
-United States of America Patriot Act: Preserving Life and Liberty (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), 2001, Access www.gpo.gov.
-United States Code, 2006 Edition, Supplement 3, Title 18 – Crimes And Criminal Procedure, Access www.gpo.gov.
In July 2013 she obtained MA in International Relations on Faculty of Political Sciences, University of Belgrade, Serbia, with academic title Master of Politicology for International Affairs. Her final master thesis is “Consensus or conflict – two perspectives of European Integrations”. The work is expected to be published in the magazine “Zbornik radova” on Faculty of Political Sciences. During her MA studies she wrote several papers, such as “Asylum policy in EU” that was published in the magazine “Prospectus”, Belgrade Open School (2012).
She was participating on several international Congresses and Seminars on Human Rights and International Relations, such as International Seminar BIMUN (Belgrade International Model of United Nations) – Belgrade, Serbia (2012), International Seminar BEUM (Belgrade European Union Model) – Belgrade, Serbia (2011), Course of Investigative Journalism in School of Open Journalism – Belgrade, Serbia (2011), Seminar “World Economy in Crises”, Belgrade Open School – Kopaonik, Serbia (2011), Seminar “Development of Western Balkan Countries”, Belgrade Open School – Kopaonik, Serbia (2010), Seminar “Human rights in a new world”, Faculty of Political Science – Belgrade, Serbia (2009)
Her mother tongue is Serbo-Croat language. She speaks fluently English and Portuguese and holds intermediate knowledge of Spanish, French and Russian language.