Oscillatory rheology

The apparent conflicts that arise between the protection of human rights and security in matters of counter-terrorism have attracted academic debate prior to and ever since the onset of the ‘War on Terror’.⁵⁶ The right to a fair trial in emotionally charged terrorism trials has faced particular and unique challenges even prior to 9/11.⁵⁷ Many academics have analysed how counter-terrorism responses can fundamentally challenge the basic tenets of

54 In addition to literature already cited, see M. Elliott, ‘The “War on Terror” and the UK’s Constitution’

(2007) 1 European Journal of Legal Studies 1; JCHR, Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In (2009-10, HL 86, HC 111).

55 See House of Lords Select Committee on the Constitution, Fast-Track Legislation: Constitutional Implications and Safeguards (2008-09, HL 116) paras 64-82; A. Kavanagh, ‘Constitutionalism, Counterterrorism, and the Courts: Changes in the British Constitutional Landscape’ (2011) 9 IJCL 172, at 186; A. W. Neal, ‘Normalization and Legislative Exceptionalism: Counterterrorist Lawmaking and the Changing Times of Security Emergencies’ (2012) 6 International Political Sociology 260; A.

Horne & C. Walker, ‘Lessons Learned from Political Constitutionalism? Comparing the Enactment of Control Orders and Terrorism Prevention and Investigation Measures by the UK Parliament’ (2014) PL 267; G. Carne, ‘Sharpening the Learning Curve: Lessons from the Commonwealth Parliamentary Joint Committee of Intelligence and Security Review Experience of Five Important Aspects of Terrorism Laws’ (2016) 41 The University of Western Australia Law Review 1.

56 A. Masferrer & C. Walker (eds) Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar Publishing Limited, 2013); C. Gearty, Liberty and Security (Cambridge: Polity Press, 2013); Goold & Lazarus (eds), Security and Human Rights (n.

32); I. Cameron, National Security and the European Convention on Human Rights (Klewer Law International, 2000).

57 G. Robertson, ‘Fair Trials for Terrorists?’ in R. A. Wilson (ed) Human Rights in the War on Terror (CUP, 2005).

20 the right to a fair trial recognised and protected under IHRL instruments.⁵⁸ In particular, much attention has been devoted to the increasing secrecy of terrorism trials that entail national security concerns.⁵⁹

Several authors have attempted to identify the minimum standards and non-derogable elements of the right that apply in times of emergency by drawing upon other international obligations that States will retain.⁶⁰ Others have explored more broadly how States may lawfully respond to emergency situations by utilising ‘claw-back’ clauses, or derogating from their IHRL obligations.⁶¹ For example, Andrew Ashworth has hypothesised what derogations from Article 6 of the ECHR might be conceivable if a government moved from a ‘justice model’ to a ‘security model’ in the criminal process.⁶² Ashworth theorised eight changes that could be implemented pursuant to a derogation concerning the right to a fair trial: the

58 B. Dickson, ‘The Right of Access to a Lawyer in Terrorist Cases’ in Masferrer & Walker (eds) Counter-Terrorism, Human Rights and the Rule of Law (n. 56); S. Sottiaux, Terrorism and the Limitation of Rights: The ECHR and the US Constitution (Hart Publishing, 2008) ch 7 ‘The Right to a Fair Trial’.

59 For comparative commentary see D. Bigo, S. Carrera, N. Hernanz & A. Scherrer, ‘National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges’, European Parliament, Study for the Committee on Civil Liberties, Justice and Home Affairs (LIBE), (September 2014); A. Gray, ‘A Comparison and Critique of Closed Court Hearings’ (2014) 18 International Journal of Evidence and Proof 230; K. Roach, ‘Secret Evidence and Its Alternatives’ in A. Masferrer (ed) Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in Countering Terrorism (Springer, 2012); G. Lennon & C. Walker (eds), Routledge Handbook of Law and Terrorism (Routledge, 2015), in particular F. Ní Aoláin & O. Gross, ‘The Trial of Terrorism: National Security Courts and Beyond’ and D. Jenkins, ‘The Handling and Disclosure of Sensitive Intelligence: Closed Material Procedures and Constitutional Change in the Five Eyes Nations’; J. Jackson, ‘Justice, Security and the Right to a Fair Trial: Is the Use of Secret Evidence Ever Fair?’ (2013) PL 720.

60 S. Stavros, ‘The Right to a Fair Trial in Emergency Situations’ (1992) 41 International and Comparative Law Quarterly 343; E. Schmid, ‘The Right to a Fair Trial in Times of Terrorism: A Method to Identify the Non-Derogable Aspects of Article 14 of the International Covenant on Civil and Political Rights’ (2009) 1 Göttingen Journal of International Law 29.

61 R. Higgins ‘Derogations Under Human Rights Treaties’ (1976-1977) 48 British Yearbook of International Law 281, reproduced in R. Higgins, Themes and Theories, vol 1 (OUP, 2009) ch 5.3

‘Derogations Under Human Rights Treaties’; J. Hartman, ‘Derogation from Human Rights Treaties in Public Emergencies – A Critique of Implementation by the European Commission and Court of Human Rights and the Human Rights Committee of the United Nations’ (1981) 22 Harvard International Law Journal 1; A. Mokhtar, ‘Human Rights Obligations v. Derogations: Article 15 of the European Convention on Human Rights’ (2004) 8 International Journal of Human Rights 65; R.

Burchill, ‘When Does an Emergency Threaten the Life of the Nation? Derogations from Human Rights Obligations and the War on International Terrorism’ (2005) 9 Yearbook of New Zealand Jurisprudence 95; J. Lehmann, ‘Limits to Counter-Terrorism: Comparing Derogation from the International Covenant on Civil and Political Rights and the European Convention on Human Rights’ (2011) 8 Essex Human Rights Review 105; Gross & Aoláin, ‘From Discretion to Scrutiny’ (n. 52); Conte, ‘Limitations to and Derogations from Covenant Rights’ in Conte & Burchill (eds) (n. 52).

62 A. Ashworth, ‘Security, Terrorism and the Value of Human Rights’ in Goold & Lazarus (eds) Security and Human Rights (n. 32) 217, in reference to Gearty, Can Human Rights Survive? (n. 41).

21 reversal of the burden of proof; the authorisation of self-incrimination; the demand for speedy trials; the constraining of legal aid; the admission of hearsay evidence; the admission of unlawfully obtained evidence; the presumption of dangerousness and granting of long indeterminate sentences; and the political authorisation of prisoner release.⁶³ Ashworth concludes that five of the Article 6 guarantees ‘could only be modified if a derogation were entered under Article 15 (duty to answer questions, very speedy trials, withdrawal of legal aid, presumption of dangerousness, release authorised only by Home Secretary), whereas the other three could be modified more easily because their boundaries appear to be more flexible’.⁶⁴

Looking more closely at the argument that some human rights guarantees have diminished since 9/11, much legal, philosophical and political commentary has been shaped around the apparent trade-off and proper balancing of civil liberties and the interests of national security.⁶⁵ At one extreme, Alan Dershowitz famously advocated the use of torture warrants in 2003, indicative of a potential shift away from human rights interests in favour of national security concerns in the ‘War on Terror’.⁶⁶ In a similar vein, Michael Ignatieff suggested that

‘to claim that there are no lesser evil choices to be made is to take refuge in the illusion that the threat of terrorism is exaggerated’.⁶⁷

Some scholars have found this metaphorical language of balancing and trade-offs to be problematic.⁶⁸ For example, Daniel Moeckli has suggested that the balancing metaphor is

63 ibid, 218.

64 ibid, 223.

65 See for example M. Ignatieff, ‘Paying for Security with Liberty’, Financial Times (13 September 2001); M. Arden, ‘Human Rights in the Age of Terrorism’ (2005) 121 LQR 604; R. A. Wilson (ed) Human Rights in the ‘War on Terror’ (CUP, 2005); Goold & Lazarus (eds) Security and Human Rights (n. 32), in particular Lazarus & Goold, ‘Security and Human Rights: The Search for a Language of Reconciliation’ and Ashworth, ‘Security, Terrorism and the Value of Human Rights’.

66 A. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Yale University Press, 2003).

67 M. Ignatieff, The Lesser Evil: Politics in an Age of Terror (Princeton University Press, 2004) vii.

68 See J. Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 Journal of Political Philosophy 191; D. Cole, ‘Enemy Aliens’ (2002) 54 Stanford Law Review 953; L. Zedner, ‘Securing Liberty in the Face of Terror’ (2005) 32 Journal of Law and Society 507; C. Michaelsen, ‘Balancing Civil Liberties Against National Security? A Critique of Counterterrorism Rhetoric’ (2006) 29 University

22 not a helpful device in framing the relationship between liberty and security, arguing that to reduce the relationship to a balancing exercise is a simplistic notion which may obscure the real interests and issues at stake.⁶⁹ Ronald Dworkin has contended that the balancing metaphor is ‘deeply misleading because it assumes that we should decide which human rights to recognise through a kind of cost-benefit analysis’, which, according to him, would be tantamount to declaring that there are no such things as human rights.⁷⁰ David Luban has gone as far to argue that ‘the whole conversation about “trade-offs” conceals persistent fallacies’.⁷¹

Some legal scholars have engaged with wider socio-political issues when considering what factors may have contributed to the erosion of high human rights standards after 9/11. For example, Fiona de Londras notes the truism that ‘in times of crisis and fear, panic can play an important and corrosive role in our levels of commitment to liberty and human rights, especially the rights of those considered to be “other”.’⁷² De Londras contends that:

On its face, the aftermath of 11 September 2001 had all the ‘vital ingredients’ for panic-related repression: a serious but unquantifiable risk, widespread and deeply felt fear, an impulse towards ‘security’, an ‘othered’

enemy, a security-conscious populace and a cadre of moral entrepreneurs ready to make the case that increasing their powers would also increase

‘our’ security.⁷³

Although De Londras’ observations concern the issue of detention in the ‘War on Terror’, they may be relevant to the aims and research questions of this study in light of the objective to take a critical and socio-legal approach to the study of certain counter-terrorism issues. As of NSW Law Journal 1; D. Moeckli, Human Rights and Non-Discrimination in the ‘War on Terror’

(OUP, 2008) 1-11.

69 Moeckli (n. 68) 2.

70 R. Dworkin, ‘It is Absurd to Calculate Human Rights According to a Cost-Benefit Analysis’, The Guardian (24 May 2006).

71 D. Luban, ‘Eight Fallacies About Liberty and Security’ in R. A. Wilson (ed) Human Rights in the

‘War on Terror’ (CUP, 2005).

72 de Londras (n. 46) 4.

73 ibid.

23 such, this thesis builds upon this kind of scholarship by exploring how the progressive erosion of fair trial guarantees may have been allowed to occur in recent years.