Paper delivered on 3 June 2003
by Professor Ivan Shearer
Challis Professor of International Law, University of Sydney
The very title of this talk seems to suggest that the observance of
human rights might have to give way to the demands of the community
for protection against acts of terrorism, or that human rights must
be cut down, or modified, in dealing with terrorists. This is very far
from my thesis. The dictum of the Roman statesman Cicero "silent
enim leges inter arma" (1) is often cited as ancient authority
for the proposition that laws are inoperative in war, but this was intended
as a cynical comment more than as a prescription. If we could truly
speak of a "war" against terrorism today, then the body of
laws developed during the 19th and 20th centuries to govern the conduct
of armed conflict, which we now call international humanitarian law,
would have to apply. There are many connexions and overlaps between
that body of law and human rights law. However, we are not truly concerned
with a war.
The term "war against terrorism" was popularised by US President
George W. Bush after the attacks on the World Trade Center, the Pentagon,
and in the air over Pennsylvania on 11 September 2001. The word "war"
must be understood in a political and not a legal sense. Since the advent
of the United Nations Charter in 1945 war is no longer a right of states.
The use of force must be restricted to the circumstances allowed under
the Charter. To invoke the term "war" does not in itself give
the United States, or any other country, belligerent rights to attack
terrorists wherever they may be found. The relevant rights must be founded
in both international law and national laws as measures of prevention
and enforcement.
I will examine first the present state of international law with respect
to action against terrorists. Then I shall look at the various strategies
and laws adopted, or in prospect, by Australia and other countries at
the national level. And finally I shall measure these against the yardstick
of human rights law, in particular the International Covenant on Civil
and Political Rights.
1. The definition of terrorism in international law
Efforts in the United Nations to achieve by consensus a comprehensive
definition of terrorism have been pursued since 1996. (2) These efforts
were accelerated after the events of 11 September 2001, but so far have
stumbled over the difficulty of accommodating liberation movements.
In this, as in so much else, the conflict between Israel and the Palestinians
casts a long shadow. However, the core definition has been agreed. Article
2 of the Draft Convention provides:
"1. Any person commits an offence within the meaning of this
Convention if that person, by any means, unlawfully and intentionally,
causes:
(a) death or serious bodily injury to any person; or
(b) serious damage to public or private property, including a place
of public use, a state or government facility, a public transportation
system, an infrastructure facility, or the environment; or
(c) damage to property , places, facilities or systems referred to
in paragraph 1(b) of this article, resulting or likely to result in
major economic loss,
when the purpose of the conduct, by its nature or context, is to
intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act."
The essence of the definition is thus that terrorism is committed by
private persons or groups, not acting as lawful combatants in a situation
of armed conflict governed by the Geneva Conventions, by acts directed
at persons or property for a political purpose. Terrorism may be confined
to the territory of a single state, or it may be directed across international
boundaries.
2. International co-operation in the suppression of terrorism
International co-operation in the suppression of crime began with the
systematic practice of extradition in the 19th century. It has since
widened to include measures for mutual assistance in the provision of
evidence and documentation, investigation, and the tracing of illicit
funds. An important feature of extradition treaties was the exclusion
from their application to political offenders. No state wished to be
a party to assisting other states in hunting down their political opponents;
indeed, they might wish to give them political asylum. However, a problem
arose to challenge this policy, which was based on 19th century liberalism.
What if the means used by offenders with purely political motives were
indiscriminate or caused disproportionate injury to innocent bystanders?
An English case in 1894 tested this issue. A French anarchist named
Meunier escaped to England after committing two bomb attacks, one on
an army barracks, the other on a café crowded with civilians.
The court decided that the political offence exception to extradition
did not apply in such a case. The court held that the offences were
not truly political in the sense of a struggle for power among contending
forces; anarchists were the enemies of all governments and their acts
were directed primarily at the general body of citizens. (3) In the
20th century the Swiss courts developed a concept of the 'relation of
means and purposes' to apply to applications for extradition of violent
political offenders: if the means used were excessive in relation to
the political ends sought by the offender, the crime ought not to be
regarded as political. In a case where Yugoslavia sought the extradition
of the hijackers of a Yugoslav aircraft, where the hijackers wished
to seek political asylum in Switzerland, the court held that the political
motive and the means used were sufficiently commensurate 'to excuse,
if not justify, the injury to private property'.(4)
These relatively tolerant attitudes towards political violence could
not survive the advent of aircraft hijackings in the 1960s and the spread
of terrorism towards the end of the century. In the case of aircraft
hijacking the international community was not ready to abandon altogether
the concept of the political offence in extradition and thus to require
in all cases surrender of the offender to the victim state. Instead,
the conventions adopted at that time, and still in force, invented a
convenient way around the difficulty. They provide that the hijacking,
or endangering the safety, of an aircraft is always an offence, irrespective
of motive, but that the state receiving an offender on its soil has
the option of prosecuting the offender itself if it considers that the
offender might not receive a fair trial in the victim state. This formula
"aut dedere aut punire (judicare)" ("either extradite
or punish (prosecute)"), which is a form of universal jurisdiction
since the receiving state in such circumstances would have no normal
territorial or other basis upon which to assume jurisdiction other than
by reason of the convention, has been adopted in many subsequent conventions,
including the two United Nations conventions on terrorist bombings and
the financing of terrorism of 1998 and 1999, and the current draft comprehensive
terrorism convention, discussed earlier.
A more radical step might be to declare that all terrorists, as defined
in an international convention yet to come, will face extradition to
the state where their outrages were committed. Such is the solution
already adopted by states parties to the European Convention on Terrorism
adopted in 1977. (5) That convention removes the political offence exception
to extradition in cases involving hijacking and sabotage of aircraft,
hostage taking, crimes against internationally protected persons, and
torture (all as defined in existing international conventions), and
for "an offence involving the use of a bomb, grenade, rocket, automatic
firearm, or letter or parcel bomb if this use endangers persons."
The dangers for the observance of fair trial safeguards under the European
scheme are largely avoided by the adherence by the same parties to the
European Convention on Human Rights and the compulsory jurisdiction
of the European Court of Human Rights. It is not possible at present
to suggest this model for the international community as a whole, which
lacks such cohesiveness and similarity of institutions as in Europe.
Under Australian law certain offences have been removed from the exception
of political offenders for the purposes of extradition. This has been
so for some time, and it is not a recent development in response to
new circumstances. The Extradition Act, 1988, excludes from the definition
of "political offence" offences of the kinds defined by the
international conventions relating to hijacking of aircraft, endangering
aircraft in flight, attacks against internationally protected persons,
genocide, hostage-taking, and torture. These offences have all been
incorporated by statute into Australian law. Moreover, the Act also
excludes from the category of political offences, where regulations
applying to particular countries have been made, attacks on the person
of the head of state or head of government and their families (the "attentat
clause"), and also "an offence constituted by taking or endangering
...the life of a person, being an offence committed in circumstances
in which such conduct creates a collective danger, whether direct or
indirect, to the lives of other persons...."(6) The last is as
good a brief definition as any of terrorism.
3. Other obstacles to international co-operation in the suppression
of terrorism
The practice of extradition is subject to certain other obstacles,
with implications for the handling of terrorists.
(a) The death penalty
Many states, including Australia, refuse extradition where the offender
would be subject to the death penalty, or make extradition conditional
upon an assurance that the death penalty, if imposed, will be commuted
to a sentence of imprisonment. This presents particular difficulty for
the United States, the law of which provides for the death penalty for
a number of offences, including terrorism. The giving of an assurance
to the state requested to give extradition of, say, Osama bin Laden,
would be a heavy political price for the United States to pay for bringing
him to trial and sentence. How would one explain it to the people of
New York, or the whole United States, when far less serious offenders
are subject to the death penalty? This question was indirectly considered
recently by the House of Lords in the case of a request by the United
States for the extradition of three men accused of involvement with
Al Quaeda in the bombings of American embassies in East Africa. (7)
The point at issue was whether the United States had jurisdiction, within
the meaning of the bilateral treaty of extradition between the United
States and the United Kingdom, over offences of an extraterritorial
nature. It was decided that it did have the right to request extradition,
since the laws of the United Kingdom allowed a similarly broad application
of its own laws with respect to terrorism extraterritorially. (8) The
point regarding the seeking of assurances regarding the death penalty
was not argued, but was noted as a matter for the discretion of the
Home Secretary. (9)
The question of extradition to face the death penalty has arisen before
the Human Rights Committee under the International Covenant on Civil
and Political Rights. May a country that has abolished the death penalty
in its own laws extradite to a country which retains the death penalty?
The answer given is that it may, but the requested state is bound by
article 6 of the Covenant to ensure that the death penalty will not
be applied in such a way as to offend the provisions of article 6 (i.e.
be applied in cases other than the most serious offences, and to pregnant
women or persons under the age of 18 years). (10) Dissenting views in
this case, however, point to possible future developments in which it
may be decided that a state may not do indirectly by extradition what
it may not do directly as an abolitionist state.
(b) Fair trial safeguards
Extradition treaties do not normally contain provisions requiring the
parties to observe accepted standards of fair trial after surrender.
In the past, the very existence of a bilateral treaty has been regarded
as tacit acknowledgment of the respect the parties have for each other's
processes. Doubts have emerged, however, in recent years where multilateral
treaties containing extradition clauses are open to all states to adhere,
some of whose trial standards are open to question. Such treaties include
the hijacking and hostage-taking conventions and will extend to later
conventions having a relevance to terrorism. Can extradition be refused
in such circumstances? (11)
Since extradition treaties are silent in the matter, requested states
must fall back on their general executive discretion not to extradite
having regard to all the circumstances of the case. For example, if
there is reason to believe that the requested person, if surrendered,
would be liable to torture (12) in the requesting state or would not
receive a fair trial, the Attorney-General has the discretion under
Australian law not to sign the final surrender warrant. These are matters,
however, for the unreviewable discretion of the Attorney-General, not
for the courts. (13) In relation to the similar discretion vested in
the Home Secretary under the United Kingdom's extradition laws, Lord
Scott in a recent English case remarked:
"The media have, over the past few weeks, carried reports of
the intention of the President of the United States, acting under
emergency executive powers, to establish military tribunals to try
non-US citizens who are accued of terrorist offences. The offences
with which [the appellants in the present case] are charged might
well be presided over by military personnel, not judges, will be able
to admit evidence that would not ordinarily be admissible before a
criminal court of law, and will be able to conduct the trial behind
closed doors. The charges against the appellants that have led to
the extradition requests [in the present case] were laid before the
US District Court for the Southern District of New York. If the appellants
are to be extradited I imagine that they will be tried before that
court or some other Federal Court and not before a military tribunal
that will not need to sit in public and that need not observe the
rules of evidence." (14)
Clearly Lord Scott was firing a shot across the Home Secretary's bows
(which caused another law lord in the case expressly to dissociate himself
from those remarks). (15) Nevertheless they have real point: it is an
unsatisfactory state of affairs to allow so much discretion to reside
in the executive and so little scope for inquiry by the extradition
court. It is much harder for a government to resist pressures from other
governments for surrender when they have a discretion than if all the
essential powers are held by an independent judiciary.
4. Rights and obligations of national action against terrorists
imposed by international law
(a) Rights
It is a long-standing principle of general international law no state
may allow its territory to be used in order to launch attacks on other
states. That principle even applies to recruiting of forces for deployment
in an internal war of a foreign friendly state. (16) To allow terrorists
to operate from bases or safe havens in a state's territory is a clear
violation of this principle.
When the United States first located Al Qaeda bases in Afghanistan
and Sudan, following the bombing of US embassies in East Africa, strikes
were carried out by missiles against those bases. The right of self-defence
was cited in justification. So far as is known, no prior warning or
demand was given to those states. However, following the events of 11
September 2001, the United States expressly directed a demand to the
Taliban authorities in control of the greater part of Afghanistan for
the handing over of Osama bin Laden and his senior officials. The Taliban
refused, and in its statements appeared to endorse and approve the actions
of Al-Qaeda. Thereupon the United States, together with a number of
allies, launched an invasion of Afghanistan with a view to capturing
Al Qaeda personnel. It was clear also that an important though indirect
aim of the invasion was to remove the Taliban government and allow a
more friendly government - preferably a democratic one - to take its
place. These actions were not endorsed by the United Nations Security
Council, nor was such endorsement sought by the United States. It saw
its justification in the right of self-defence against armed attack,
recognised by article 51 of the United Nations Charter, which requires
no prior authorisation but does require report to the Security Council
and allows for the Security Council to take charge at an appropriate
time (or to condemn). Indeed, a preambular paragraph of Security Council
resolution 1373 (2001), passed shortly after the events of 11 September,
expressly recognised the right of self-defence against armed attack
launched even by non-state entitities, although that in itself was not
intended as a warrant for the invasion of Afghanistan. Professor Yoram
Dinstein, writing before September 2001, presciently imagined such a
scenario, and characterised such an action as a sub-species of self-defence
which he called "extraterritorial law enforcement." (17) The
notion of extraterritorial law enforcement is that the government of
a state that harbours terrorists (or other types of criminals launching
attacks across borders), and which is either unable or unwilling to
take effective action to prevent and punish them, is required to stand
aside while the victim state takes the necessary action. It is implicit
in this notion that the incapable or unwilling government is not itself
the target, although it may suffer "collateral" damage in
the process of law enforcement.
No doubt Professor Dinstein was thinking of "failed states",
like Somalia. But in the case of the Taliban regime in Kabul, the US
went considerably further than the suggested doctrine would allow. It
secured an ouster of the Taliban and the setting in train of a process
leading to a new government. Did this represent a transition - mid-operation
so to speak - from law enforcement to regime change in order to ensure
that the past danger did not reappear? By reason of the identification
by the Taliban with the cause of Al Quaeda the task of justification
by the United States was made easier: the situation was transformed
into a classic instance of self-defence against an aggressor state.
And there is no doctrine that requires self-defence to stop short of
the complete defeat or submission of the aggressor.
(b) Obligations
The mixed justification of the actions by the United States and its
allies has led to confusion in the status of persons detained in Afghanistan
and in bordering countries, some of whom are now in special prisons
constructed at the US naval station in Guantanamo Bay, Cuba. Much attention
has been given in Australia to the detention there of two Australian
citizens, David Hicks and Mamdouh Habib. Two questions arise: (i) what
is the position of the detainees under international human rights law,
and (ii) what is their position under the law of armed conflict (international
humanitarian law)?
(i) The relevant provisions of international human rights law are
set out in the International Covenant on Civil and Political Rights,
to which both Australia and the United States (and 149 other countries)
are parties. Articles 9 and 10 are directly relevant. They provide
that no person shall be subjected to "arbitrary" (meaning
unreasonable) detention and that persons arrested or detained shall
be informed of the charges against them. They shall moreover be entitled
to trial within a reasonable time, and to have access to a court to
test the lawfulness of their detention. It is clear that the provisions
of the Covenant bind the United States even in relation to those detainees
held at Guantanamo Bay, Cuba. Although article 2 of the Covenant obliges
each party to respect the Covenant in relation to individuals "within
its territory and subject to its jurisdiction", it has been held
by the Human Rights Committee that the obligations of the Covenant
apply to parties beyond their strict territorial limits to anywhere
where they exercise control. (18)
On the face of it, the detention of those persons at Guantanamo Bay
in the given circumstances does not meet the tests of the Covenant
in so far as they have not been charged and have not been brought
to trial within a reasonable time. Efforts to seek habeas corpus on
their behalf have been unavailing as the United States courts have
considered that the war powers granted to the President by the Congress
to "use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed,
or aided the terrorist attacks" or "harbored such organizations
or persons" (19) necessarily included the capture and detention
of any forces arrayed against US troops. (20)
(ii) Might alternative justification for the detention be sought
by the United States in the law of armed conflict, operating as a
lex specialis overriding the general law? (21) The United States is
a party to the Geneva Conventions, 1949 (but not to the Additional
Protocols of 1977). Article 4 of the Third Geneva Convention defines
the categories of persons entitled to treatment as prisoners of war
on capture and thus also, indirectly, those who are lawful combatants.
Members of the armed forces of any party to the conflict are lawful
combatants and thus entitled to be treated as prisoners of war, even
if they profess allegiance to a government or an authority not recognised
by the detaining power. (22) This was the position of the Taliban,
whose government was not recognized by the United States, Australia
or any other state (other than Pakistan) as the government of Afghanistan.
Nevertheless, they had lawful combatant status under the Convention
provided that they carried their arms openly and wore a distinct uniform
or insignia visible at a distance. (23) It was otherwise with respect
to Al Quaeda forces. The Geneva Convention requires that members of
a "militia", not being part of the regular armed forces,
will be entitled to lawful combatant and prisoner of war status only
if they are commanded by a person responsible for his subordinates,
have a fixed distinctive sign recognisable at a distance, carry arms
openly, and conduct their operations in accordance with the laws and
customs of war. (24) Even so, the situation on the ground in Afghanistan
was not absolutely clear cut. To what extent the Taliban forces distinguished
themselves from the civilian population was not clear, and to what
extent the Taliban and members of Al Quaeda fought together in certain
places was also not clear. The Convention itself provides an answer
in such cases: "Should any doubt arise as to whether persons,
having committed a belligerent act and having fallen into the hands
of the enemy, belong to any of the categories enumerated in article
4, such persons shall enjoy the protection of the present Convention
until such time as their status has been determined by a competent
tribunal." (25)
Reliance was placed on this provision and the lack, so far, of any
action by the US authorities to establish a tribunal to assess the status
of the detainees, in the case of Hamdi v. Rumsfeld (above). The court
held that the Geneva Convention could not be applied as a rule of US
domestic law because its provisions were not self-executing in the sense
required by constitutional law. (26)
The situation in Australia is very different. The Geneva Conventions
have been incorporated into Australian law by the Geneva Conventions
Act, 1957, and thus questions of combatant status, if they were to come
before an Australian court, would be decided according to the Convention.
(27)
It is a fundamental principle of international law that a state may
not plead its own domestic law as an excuse for failure to carry out
its international obligations. (28) Thus, the United States owes duties
to other states, including Australia, to have regard to the Geneva Conventions
in the treatment of so-called "battlefield detainees" by clarifying
their status. The Convention is silent, however, as to how long this
determination may be delayed. In the absence of an express provision
reliance should be placed on the principles of reasonableness and good
faith which govern the discharge of all responsibilities under international
law. The time is fast approaching, if it has not already arrived, that
the clarification of the status of Mr. Hicks and Mr. Habib should be
made.
It should be noted, however, that there is no obligation on the Australian
Government, enforceable under Australian law, to demand the return of
Australian citizens held abroad for whatever reason. International law
recognises the right of diplomatic protection by states of its citizens,
and this must be respected by other states in so far as it is a facet
of general diplomatic relations, and constitutes a basis for the espousal
of a claim before an international tribunal. (29) Appeals may be made
on the basis of international human rights law, or as in this case,
also the law of armed conflict (international humanitarian law). But
in the hands of the national state, whether to exercise the right or
not is entirely discretionary. The national state will in this respect
have to weigh its own assessment of the threat posed by the individual,
based often on secret information, and the delicacy of its relations
with the detaining state, against pressures from the family of the detainee,
the media (30) and from domestic political sources.
5. Australian laws against terrorism
It is important to acknowledge that the impetus for new laws against
terrorism comes as much from an international source as from domestic
constituencies. There are two consequences of this. First, that the
necessity for, and to some extent the drafting of the particular language
employed in Australian laws, derive from international instruments binding
on Australia. The second is that the powers of the Commonwealth parliament
are greatly extended in this area of legislative competence by reason
of the international source being an "external affair" and
as thus engaging the operation of the external affairs power of the
Constitution (section 51 (xxix).
Very shortly after the events of 11 September 2001 the United Nations
Security Council passed resolution 1373 (2001). It called upon all members
of the United Nations to report, within 90 days, on the steps they had
taken to implement the terms of the resolution. Some 160 states, including
Australia, have done so. The resolution required that all states take
steps to ensure that "terrorist acts are established as serious
offences in domestic laws and that the punishment duly reflects the
seriousness of such acts." The resolution further obliged states
to criminalise the provision of funds to terrorists, and freeze the
financial assets of persons who commit terrorist acts. The resolution
also required states to review their laws relating to banking practices,
arms control, law enforcement and cooperation in the suppression of
terrorism, and other matters concerned with security. Those Australians
who urged, in May 2002 before the Senate Legal and Constitutional Legislation
Committee, that no new laws were necessary to combat terrorism overlook
the binding nature of the decisions of the Security Council under article
25 of the UN Charter. (31)
Australia submitted its report to the UN Counter-Terrorism Committee,
established under resolution 1373, on 21 December 2001. The Australian
report stated that the government had convened task forces to review
Australia's systemic and legislative preparedness to respond to a terrorist
attack in Australia and to freeze any Australian assets of terrorists
and their sponsors. It had legislation in train to achieve these purposes.
It also intended to become a party to the remaining two of the 12 existing
international conventions relevant to terrorism. (32) These laws will
be examined below.
Before doing so, it is worthy of special note, in view of a current
controversy in Australia, that the Special Committee established under
Security Council resolution 1267 (1999) (33) has the power to proclaim
lists of prohibited organisations and corporations, known to have terrorist
connections. The organisations and groups so listed are banned under
Australian law by declarations by the Minister of Foreign Affairs under
the Charter of the United Nations (Anti-terrorism Measures) Regulations,
para. 9(1). (34) The Hezbollah organisation, active in the Middle East,
and supported by, inter alia, Iran and Syria, has not been listed by
the Committee. There are those in Australia who think it should be banned,
and are calling for special legislation to be passed, on the assumption
that the powers of the Foreign Minister under existing legislation are
confined to what the UN has specifically authorised. Resolution 1267
also calls upon states to prohibit entry into or transit through their
territory of individuals named in the List. (35)
Australian Anti-Terrorism legislation
Australian legislation has been largely consolidated into complementary
sets of Commonwealth, State and Territory legislation. In relation to
terrorist acts Commonwealth legislation is contained in the Criminal
Code Act, 1995, Divisions 100-103. In so far as the general corpus of
the criminal law is not a federal power but remains vested in the States,
the States have referred their powers to the Commonwealth under section
51 (xxxvii) of the Constitution. (36) At the same time the States have
enacted their own legislation on a common pattern so that there are
no conflicts between themselves and the Commonwealth or the other States
and Territories.
The common definition of "terrorist act" adopted in this
legislative scheme comprises acts of violence which cause serious physical
harm to persons or property, or constitute a collective danger, committed
for a political, religious or ideological cause, and intended to coerce,
influence, or intimidate a government, or to intimidate the public generally.
Expressly excluded from the definition are advocacy, protest, dissent
or industrial action which are not intended to cause serious harm to
persons or public safety. (37)
It is not possible in a paper of this length and with its purpose to
examine the constitutional aspects of the legislation, nor is it desirable
to descend into the detail of the legislation. My purpose is to examine
those aspects of the legislation that might be thought to give rise
to issues of compatibility with international norms of human rights.
There can be little doubt as to the necessity of legislation against
terrorism. Some have argued that its very existence creates a climate
of fear and lays the groundwork for future repression; that existing
legislation regarding crimes of violence is sufficient. (38) In my own
view focused legislation is both necessary and desirable to respond
adequately to the need, and to embrace international standards and rules
developed under the authority of the United Nations. (39)
The heart of the matter lies in the exercise of powers by the authorities
against the individual under this legislation. The general rule of the
common law, as amended by statute in varying degrees among the States
and Territories of Australia, is that a person may not be detained for
questioning by police. If arrested on reasonable suspicion of having
committed an offence, the person may be detained for up to about four
hours (with some exceptions) before being formally charged. The person
is not required to answer questions (except under certain legislation
when required to give name, address and proof of identity.) Anything
said before the warning against self-incrimination is given at the time
of arrest may not be used in evidence against the person. (40)
The powers given to police under the legislation respecting terrorism
so far mentioned does not significantly diminish these basic protections
of the rights of the individual. For example, under the Terrorism (Police
Powers) Act, 2002 (NSW) there is authorisation to exercise what is termed
"special powers". These powers do not, however, provide for
detention without charge, nor do they extend the period allowed for
questioning. The Act requires that a person who is the subject of an
authorisation given by senior police disclose his or her identity and
provide proof. The Act also provides for extensive powers of search
of the person, vehicles and of premises.
Attention has rightly been focused on a proposed piece of legislation,
which has not yet been enacted: the Australian Security Intelligence
Organisation Legislation Amendment (Terrorism) Bill, 2002. As originally
proposed, the Bill would have enabled persons suspected by ASIO of having
information about a terrorist offence, and with the concurrence of the
Attorney-General, to be held for questioning for considerable periods
of time, as authorised by a warrant issued by a judge, to be held incommunicado
and without access to a lawyer, and required to answer questions on
pain of committing an offence. The Bill received much criticism. For
example, the President of the NSW Bar Association, Mr. Bret Walker SC,
wrote in the press on 6 March 2003:
"From what we know of it so far, this is the genuine emergency
case where detention is authorised for the purpose of questioning
a person who may not be a criminal suspect, but is thought to have
information which could avert death and destruction. With appropriate
safeguards, this intrusion into our usual freedom to be left alone
and not to be required to answer questions from the government can
easily be justified. The devil is in the details of any safeguards....These
must surely include an absolute guarantee that nothing revealed by
a person under compulsory questioning can ever be used to prove that
person's guilt of any other offence. Otherwise, we should stop beating
about the bush and start devising regulated torture." (41)
The Attorney-General of the Commonwealth has announced significant
amendments to the Bill, including (having regard to Mr. Walker's last
point) that any evidence taken from a detained person cannot be used
against them in prosecution for a terrorism offence. This is a significant
concession, since the right to silence is not constitutionally protected
in Australia as it is in the United States. (42)
6. Measuring terrorism laws against the International Covenant
on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) was
adopted in 1966 as one of a trilogy of instruments that makes up the
"International Bill of Rights" (the others being the Universal
Declaration of Human Rights, 1948, and the International Covenant on
Economic Social and Cultural Rights, 1966.) It has been adhered to by
150 countries, which must submit regular reports to the Human Rights
Committee established under the Covenant and subject themselves to an
examination by that Committee. Moreover, the First Optional Protocol
to the Covenant, to which Australia and more than 100 other countries
have adhered , allows for a right of individual petition to the Committee
where a person claims a violation of the Covenant which has not found
a remedy after exhausting the processes of domestic law. (The United
States is not a party to the Optional Protocol).
(a) Length of detention for questioning
Under the ASIO Bill, if passed, a person may be detained for questioning
under a warrant for up to 48 hours, which may be extended by a Federal
Court judge for periods of up to a maximum of 7 days. This does not
sit very easily with article 9 (1) of the Covenant, which requires
that "no person shall be subjected to arbitrary arrest or detention".
In the jurisprudence of the Committee, the word "arbitrary"
means unreasonable. Thus a lengthy detention on national security
grounds requires justification in terms of its reasonableness and
proportionality. The impact of international terrorism has not yet
been specifically considered by the Human Rights Committee in the
context of the application of article 9. The Committee has, however,
considered the scope for derogation from the rights under the Covenant
in times of national emergency. This will be considered below. Without
declaring an emergency, a state must justify its detention in terms
consistent with the Covenant. For example, indefinite detention of
asylum seekers under migration laws has been condemned by the Committee
as incompatible with article 9. This was the case of A. Australia
where the Committee upheld the complaint of a Cambodian asylum seeker
detained for nearly four years at the time of the complaint. (43)
In 1997 the Committee, in its concluding observations on the periodic
report of Peru, criticised the laws under which persons suspected
of terrorism could be placed in preventive detention for fifteen days,
extendable by another fifteen days, without charge. (44) It is an
open question whether the flexibility of the word "arbitrary"
(reasonable) in article 9 of the Covenant would extend so far as to
enable a lengthy period of detention such as proposed under the ASIO
Bill to be justified. Justifiability could be tested before the Human
Rights Committee either on a complaint being made to it by an individual,
or in the course of the examination of Australia's next periodic report
(due in 2005). It may be that the length of the detention is not on
its own the sole relevant factor; the availability of judicial review
of the detention and access to legal assistance would also come into
account.
(b) Access to counsel
Article 14 (3) (b) of the Covenant provides that in the determination
of any criminal charge the person shall be entitled to "communicate
with counsel of his own choosing". This right of communication
is wider than the right to legal assistance at the trial itself (para.
(d)) and has been held by the Committee to apply in cases of incommunicado
detention before charges have been laid. (45) The ASIO Bill in its
present form proposes that a person detained shall have access to
a "security-cleared" lawyer, except where specific gorunds
exist for denying that right during the first 48 hours of detention.
This means that a panel of lawyers in private practice, each granted
appropriate security clearances, must be established. They will, however,
not be permitted to consult with their clients in private: contact
must be carried out within the hearing of a "warrant holder",
in practice an officer of ASIO. (46) Questions of reasonableness,
having regard to all the circumstances, also arise here.
7. Derogations from the Covenant in times of emergency
Australia has given no indication to the present time that it considers
that its laws relating to terrorism require any derogation from its
obligations under the Covenant. Presumably Australia considers that
the degree of flexibility inherent in the relevant provisions would
allow Australia's response to pass muster on a showing of the reasonableness
of the measures in all the circumstances. This contrasts with the action
of the United Kingdom which on 18 December 2001 gave notice of derogation
from article 9(1) of the Covenant in respect of the detention of foreign
nationals intended to be deported form the UK under the Anti-Terrorism,
Crime and Security Act, 2001.
Article 4 of the Covenant allows states parties to take measures derogating
from their obligations under the Covenant "to the extent strictly
required by the exigencies of the situation". These measures may
be taken only during "a time of public emergency which threatens
the life of the nation and the existence of which is officially proclaimed".
Such a state of emergency was officially proclaimed by the UK following
the attacks in the United States of 11 September 2001.
So far, neither Australia nor the United States have made a proclamation
of emergency communicated to the states parties to the Covenant through
the Secretary-General of the United Nations, as required by article
4(3). There would be an understandable reluctance to do so, even after
such catastrophic events as those of 11 September 2001, for fear of
spreading panic in the community, or appearing to confess the inability
of the government to take effective measures against terrorists within
the existing law or within theframework of special laws considered by
it to be compatible with the Covenant. The fact that the UK has done
so may be a reflection of the fact that the UK has, in the past, made
declarations of emergency in relation to Northern Ireland, and to that
extent the public is not unused to them.
The fact that article 4(2) lists certain articles of the Covenant as
being non-derogable (e.g. the right to life, and the prohibitions of
torture and slavery), and that the non-derogable articles do not include
articles 9 and 14, considered above, does not mean that those provisions
can be set aside entirely where an emergency is proclaimed and the derogation
communicated to the UN Secretary-General. The Human Rights Committee
made an important pronouncement on this subject in 2001, just prior
to the events of 11 September. In General Comment No. 29 on Derogations
During a State of Emergency (47) the Committee explained that:
"...the obligation to limit any derogations to those strictly
required by the exigencies of the situation reflects the principle
of proportionality which is common to derogation and limitation powers.
Moreover, the mere fact that a permissible derogation from a specific
provision may, of itself, be justified by the exigencies of the situation
does not obviate the requirement that specific measures taken pursuant
to the derogation must also be shown to be required by the exigencies
of the situation. In practice, this will ensure that no provision
of the Covenant, however validly derogated from, will be entirely
inapplicable to the behaviour of a state party....The legal obligation
to narrow down all derogations to those strictly required by the exigencies
of the situation establishes for both states parties and for the Committee
a duty to conduct a careful analysis under each article of the Covenant
based on an objective assessment of the actual situation". (48)
The Committee also emphasised that measures derogating from the provisions
of the Covenant "must be of an exceptional and temporary nature".
It must be wondered whether, in an age of terrorism, special measures,
if they are of such a nature as to require formal notification as derogations,
could ever be regarded as "temporary". It is likely that they
are here to stay.
8. Conclusions
In my opinion, knee-jerk reactions of horror at restrictions on certain
rights are not helpful to the general cause of human rights in an age
of terrorism. There must be a sober analysis of the dangers and of the
measures necessary to combat them. To a large extent, we in Australia
are more alive than most to the importance of civil liberties. Our society
has benefited from the common law inheritance that has provided a more
effective protection of those liberties in the past than paper guarantees
in charters of human rights. Perhaps at this stage of our development
a written bill of rights could supplement and enhance those liberties
and to that extent play a useful role. But the right instincts were
planted long ago. In addition we enjoy the benefits of a free and democratic
society, in which the need for special measures to deal with terrorism
can be openly debated.
Nevertheless, while we may feel ourselves to be qualified and equipped
to face these challenges, useful guidance is to be found in the international
standards outlined in this paper. Above all, the considerations of strict
proportionality set out in General Comment No. 29 of the Human Rights
Committee should be taken into account, and weighed heavily against
the objectively assessed present dangers to our society.
1 Pro Milone oratio, IV, xi.
2 Report of the Ad Hoc Committee Established by General Assembly Resolution
51/210 of 17 December 1996, General Assembly, Official Records, 57th
Session, Supp. No. 37, U.N. Doc. A/57/33 (2002).
3 In re Meunier [1894] 2 QB 415.
4 Re Kavic (1952) 19 International Law Reports 371. See also a similar
Swiss case at 34 International Law Reports 143, and an Austrian case
at 28 International Law Reports 343.
5 European Treaty Series No.90.
6 Extradition Act, 1988 (Cth), section 5 "political offence".
7 In re Al-Fawwaz [2002] 1 AC 556.
8 Cf the recent Australian law with extraterritorial application: The
Offences Against Australians Act, 2002, incorporated in the Criminal
Code Act, 1995 (Cth), Division 104.
9 Per Lord Scott of Foscote, [2002] 1 AC 556, at para.121.
10 Kindler v. Canada (470/91), digested in Joseph S., Schultz J., &
Castan M., The International Covenant on Civil and Political Rights:
Cases, Materials and Commentary (OUP, 2000), 122-128.
11 On this question see Dugard J., and Van den Wyngaert C., "Reconciling
extradition with human rights", 92 American Journal of International
Law (1998).
12 Extradition Act, 1988 (Cth), section 22 (3)(b).
13 Section 16(1), 22, 23.
14 In re Al-Fawwaz [2002] 1 AC 556, at para. 121.
15 Lord Hutton, at para. 93.
16 This principle is given effect in Australian law by the Crimes (Foreign
Incursions and Recruitment) Act, 1978, which was enacted first with
Rhodesia in mind, then the former Yugoslavia.
17 Dinstein Y., War, Aggression and Self-Defence (3rd ed., Cambridge
University Press, 2000), xyz
18 Lopez Burgos v. Uruguay (52/79), Joseph, Schultz and Castan, 59.
See also the Committee's Concluding Observations on the periodic report
of Belgium in relation to the conduct of Belgian forces in Somalia:
id., 62. See also para. 9 of the draft General Comment of the Committee
on article 2 , which states that article 2(1) "means that a state
party must respect and ensure the rights laid down in the Covenant to
anyone within the power or effective control of that state party, even
if not situated within the territory of that state party": CCPR/C/74/CRP.4/Rev.3
(5 May 2003), available on www.unhchr.ch/tbs/doc.nsf/
19 Authorization for the Use of Military Force, Pub. L. No. 107-40,
115 Stat. 224 (September 18, 2001).
20 Hamdi v. Rumsfeld US Court of Appeals, 4th Circuit, January 8, 2003.
See also Padilla v. Bush ......
21 It is a general principle of interpretation of international law
and national legal systems that the particular prevails over the general:
generalia specialibus non derogant. In this instance the argument would
be that the narrower categorisation of battlefield detainees in an armed
conflict would have priority over their general categorisation as persons
detained for any reason.
22 Geneva Convention Relative to the Treatment of Prisoners of War,
1949 (Geneva III), article 4(1), (3).
23 These qualifications are contained in Additional Protocol I (1977)
to the Geneva Conventions, article 44 (3). They are regarded as confirming
customary international law and therefore are accepted by the United
States, even though it is not a party to Additional Protocol I.
24 Geneva III, article 4(2).
25 Geneva III, article 5.
26 This proposition is of long standing: Foster v. Neilson 2 Pet. 253,
per Marshall CJ at 314 (US Supreme Court, 1829). See also Sei Fuji v.
California 242 P. 2d. 617 (Supreme Court of California).
27 For war crimes generally, and crimes against humanity, see the Criminal
Code Act, 1995 (Cth), Chapter 8, Division 268.
28 This is an uncontroversial general principle of international law,
reaffirmed by the International Law Commission of the United Nations
in the Draft Declaration on Rights and Duties of States, 1949, article
13: Yearbook of the International Law Commission, 1949, 286, 288.
29 E.g. The Nottebohm Case (Liechtenstein v. Guatemala), International
Court of Justice, Reports, 1955, 4.
30 E.g. Sydney Morning Herald, editorial, 6 May 2003.
31 Report of the Committee, May 2002, para. 3.3.
32 These two UN conventions, on Terrorist Bombings (1998), and the Financing
of Terrorism (1999), have been since ratified by Australia and incorporated
into domestic law by the Criminal Code Act, 1995, Divisions 72, 102,
103.
33 This committee was established before 11 September 2001 in the light
of the Financing of Terrorism Convention, 1999. Its mandate was confirmed
and strengthened after that date by Security Council resolution 1390
(2002).
34 Published in the Commonwealth Gazette, 21 December 2001, 20 March
2002. See also the Criminal Code Act, 1995, Division 102.
35 Presently implemented under Public Interest Criteria 4003 of the
Migration Regulations, 1994. More specific regulations under the Migration
Act 1958 to implement these measures are under consideration.
36 See e.g. New South Wales: Terrorism (Commonwealth Powers) Act, 2002.
37 Terrorism (Police Powers) Act, 2002 (NSW), section 3. Definition
of "terrorist act".
(1) In this Act, terrorist act means an action where:
(a) the action falls within subsection (2) and does not fall within
subsection (3), and
(b) the action is done with the intention of advancing a political,
religious or ideological cause, and
(c) the action is done with the intention of :
(i) coercing, or influencing by intimidation, the government of the
Commonwealth or a State, Territory or foreign country, or of part of
a State, Territory or foreign country, or
(ii) intimidating the public or a section of the public.
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person, or
(b) causes serious damage to property, or
(c) causes a person's death, or
(d) endangers a person's life, other than the life of the person taking
the action, or
(e) creates a serious risk to the health or safety of the public or
a section of the public, or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic
system including, but not limited to:
(i) an information system, or
(ii) a telecommunications system, or
(iii) a financial system,or
(iv) a system used for the delivery of essebtial government services,
or
(v) a system used for, or by, an essential public utility, or
(vi) a system used for, or by, a transport system.
(3) [Action excluded] Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action, and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person, or
(ii) to cause a person's death, or
(iii) to endanger the life of a person, other than the person taking
the action, or
(iv) to create a serious risk to the health or safety of the public
or a section of the public.
(4) In this section:
(a) a reference to any person or property is a reference to any person
or property wherever situated, within or outside the State (including
within or outside Australia), and
(b) a reference to the public includes a reference to the public of
another State or Territory or of a country other than Australia.
38 Report of the Senate Legal and Constitutional Legislation Committee,
May 2002, para. 3.3.
39 For a concurring view see Dr. James Renwick, "The War against
Terrorism, National Security, and the Constitution", Address to
the New South Wales Bar Association, 3 October 2002.
40 The Law Handbook, 8th. ed., 71-75 (Sydney, Redfern Legal Centre Publishing,
2002).
41 Quoted by Dr. James Renwick, above.
42 United States Constitution, Fifth Amendment. It has recently been
reported that the Supreme Court of the United States has decided in
the case of Martinez v. California, 27 May 2003, that questioning a
suspect after arrest is not unlawful, but that anything the detainee
says cannot be used in evidence against him or her (although it may
be used against other persons). This narrows the earlier authority Miranda
v. Arizona (1966).
43 Case No. 560/93. Joseph, Schultz and Castan, above, 214
44 ibid., 214.
45 Kelly v. Jamaica (537/93); Drescher Caldas v. Uruguay (43/79); Joseph,
Schultz and Castan, 312.
46 Dr. James Renwick, above.
47 HRI/GEN/1/Rev.5/Add.1, 18 April 2001. In this General Comment, it
is evident that the Committee had regard to the earlier work of two
non-governmental groups of experts whose recommendations are of value.
These are the Paris Minimum Standards of Human Rights Norms in a State
of Emergency, International Law Association, 1984, reprinted in 79 American
Journal of International Law 1072 (1985), and the Siracusa Principles
on Limitation and Derogation Provisions in the International Covenant
on Civil and Political Rights, reprinted in 7 Human Rights Quarterly
1 (1985).
48 Id., paras. 4, 6.
