Evaluating the legitimacy of national security practices and anti-terrorism legislation

Abstract

The relationship between human rights and terrorism is an interesting topic with sufficient social relevance to justify this research based Masters. Since 2001, this topic has become one of the most pressing issues of our time. While there was already a considerable amount of literature on the topic before the devastating attacks on New York and Washington DC,
the events of September 11 and their aftermath brought about an explosion of popular and scholarly contributions considering the interplay between human rights and terrorism from all imaginable perspectives.' The wave of terrorism the world has witnessed since that inlamous day served to enhance the international awareness of the inipact terrorism can
have on fundamental democratic values.
This work does not aim to contribute to the current debate by providing any new grand theory on the subject. Its purpose is a more modest one. It takes as a starting point the widely accepted view that since September 1 Ith 2001, many countries including the UK and Pakistan, have assisted the US in 'fighting against terrorism' globally, and each State has modified its national security and anti-terrorism legislation accordingly. This thesis attempts to critically explore and examine the legality and constitutional legitimacy of the means that the UK and Pakistan have used to deal with terrorism after 9/I1, giving equal
normative weight to national security and civil liberty imperatives. Amongst the internal constitutional norms on the human rights side are standards of 'proportionality' between means and ends, 'necessity in a democratic society', conformity to rights to a fair trial, and restrictions on detention without trial. On the national security side, there are norms concerning the protection of the 'right to life' from terrorist attacks and the defence of democratic institutions from internal subversion.
There is inevitable tension between suspects' right to life and the duty of the government to protect life of all citizens including terrorists and the need to exercise the effective counter terrorism measures. The government's positive obligation is to protect the right to life by taking positive steps. For example, if there is a suicide bomber on the London tube with a
detonator in his hand waiting to go under a tunnel before detonating the bomb causing injures and deaths, police have a positive obligation to protect the lives of the people. The correct assumption that the police can make is that the suicide bomber is more likely to detonate the bomb. This whole area of positive obligation and the duty to protect the right
to life merits a thesis in its own right and therefore would not be addressed in detail in the present work. To be widely perceived as constitutionally legitimate, anti-terrorism laws and the practices of the security and intelligence services must strike a difficult balance between providing effective tools to investigate and prevent terrorism; while - at the same time - ensuring that detainees human rights are not violated. The main focus is on the UK but a subsidiary aim is to draw any lessons from comparison with Pakistan on related issues.
Before commencing this inquiry, it is necessary to expand briefly on some of the assumptions concerning the link between terrorism and human rights underpinning the analysis presented in this work. The relationship between terrorism and human rights is that terrorism poses a threat to the enjoyment of some of the most essential human rights, and jeopardises collective goods such as national security and public order. The fight against terrorism, for its part, is liable to erode a significant number of individual rights and &eedonis. Kalliopi Koufa, the Special Rapporteur of the UN Sub-Commission on the Promotion Protection of Human Rights, describes this phenomenon as the 'direct' and 'indirect' link between terrorism and human rights; the link is seen as direct when terrorists kill or injure innocent civilians, deprive them of their freedom, or damage their property; the link is seen as indirect when a State's response to terrorism leads to the adoption of policies and practices that impinge on fundamental rights (see chapter 4 for a discussion of s23 ATCSA 2001 which infringed Article 5 and Article 14 ECHR).
It is clear that States are confronted with a dual responsibility. On the one hand, they are tinder obligation to combat terrorism effectively; on the other hand, they must ensure that anti-terrorism measures unfold in compliance with the existing human rights framework.