IS THE HUMAN RIGHTS ACT (2000) HAMPERING THE ‘WAR ON TERROR?’ essay

human-rights-act-essay

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by takitofo

26 October 2018

Despite the fact that there are many organisations and laws dealing with the protection of human rights of individuals, human rights for terrorists are usually not considered at the expense of victims’ rights. This essay attempts to explore the Human Rights Act (2000) focusing on the United Kingdom looking at its provision as for the preservation of the terrorist suspects’ human rights. There were both individual advances and constitutional problems implementing the Act. The implementation of law regarding the prevention of terrorism is proved to be a more complex and debating issue concerning the recognition of human rights via the Human Rights Act of 1998 under the European Convention on Human Rights 1950. The provision should be also read according to other international legislation. There can be many opponents to this issue, and, at the same time, many agree that the coming into force of the Human Rights Act in 2000 is coincidental with the beginning of the ‘War on Terror’. Thus, it remains challenging to say without alternative whether or not The Human Rights Act (2000) is hampering the ‘war on terror.’

Introduction

There are many laws and organisations that deal with the protection of human rights of the individuals and fight for them all over the world. There are many scholars dealing with various aspects of human rights (Amos 2013, Oglevie 2012). Various individuals’ human rights should be always adhered to and considered especially in relevance to terrorism. However, almost all that is observed regarding human rights protection is the consideration of the victim’s rights, and less and less attention is paid to the respect of both the victims and the perpetrators’ rights.

Human rights for terrorists are usually not considered at the expense of victims’ rights. One of the reasons why it is happening is because many states do not find the corresponding criminal laws and procedures in order to preserve a delicate balance between the protection of public order and the respect of those individuals’ human rights that are the suspects-terrorists but are not proved to be them yet. The paramount aim should be allowing effective and efficient responses to the ongoing terroristic atrocities and acts that are occurring in a contemporary world with respect to human rights.

Human Rights Act Background

The concept of human rights was first expressed in the 1948 Universal Declaration of Human Rights with the established “recognition of the inherent dignity” along with “inalienable rights” concerning all of the “human family” members (UN 2013). When terrorist actions with all of their consequences take place, there are always innocent victims of the terrorism atrocities suffering. Thus, their most basic right to live in peace and security is violated. However, looking at this issue from another perspective, there are many suspected perpetrators of various terrorist attacks who also inherently must be treated and respected in view of the current human rights legislation of today. For the aforementioned reason, as human beings, we must adhere to the fact that the accused ones also have rights and should primarily be classed as members of the human race in the course of their apprehension and prosecution.

The Human Rights Act of 1998 is an Act of the United Kingdom’s Parliament. It received Royal Assent in November of 1998 and came into force in October of 2000.  The main aim of the Act is to present further effect of the UK law regarding the rights mentioned in the Protection of Human Rights and Fundamental Freedoms Convention (BBC 2000). Its common name is the European Convention on Human Rights. The Act allows the UK courts to breach a Convention right without going to Strasbourg European Court of Human Rights.

To sum up the Human Rights Act of 1998 shortly, it does not create any new rights; however, it enables the cases of human rights to be heard in the tribunals or courts of the UK. It can also influence those tribunals and courts so that they are capable to act as public authorities dealing with the cases of private parties involved.

The Act does not stipulate that legal action is to be taken against private bodies or individuals. It is also designed in a way that helps to bring court proceedings against public authorities. It is considered that in those cases, human rights had a chance to be breached or have high potential to be infringed. Moreover, the Act also applies to people that have some learning disabilities as to equal citizens.  Generally speaking, it has a certain potential to impact profoundly on its inclusion in society, service provision, and people’s life quality.

One of the major problems is the limited power of the courts within the UK courts doctrine under the Human Rights Act. It makes it the way that in order to act lawfully every public body should act in a compatible way with the Convention unless the primary legislation wording does not provide any other choice. It requires the judiciary to take into consideration all of the judgments, opinions or decisions of the European Court of Human Rights that are known as the Strasbourg court. They should also interpret legislation in a compatible way with the rights’ Convention.

In case, when it is impossible to interpret the Parliament Act as for the Convention’s compatibility, there is no chance for judges to override it. The only thing they can do is to issue an incompatibility declaration, which does not affect the Act’s validity.  In an aforementioned way, the Human Rights Act tries to maintain the sovereignty principle of the Parliament. However, it must be remembered that the judicial role is significant, and in essence, the European states should not put terrorists beyond the law.

The Provision of the 2000 Act

According to the current Human Rights legislation, individuals have the right not to be a subject of torture or other degrading treatment. They have the right to be presumed innocent until deemed guilty and charged of the crime and finally must have the opportunity of the right to a public trial and scrutiny.

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The aforementioned counterpoint between current human rights legislation and the current anti-terrorist legislation has been widely debated and discussed with the ever-expanding wave of new forms or terrorist acts (Wagner 2009, IHRC 2013). As a result, the definition of terrorism itself is becoming unclear, which leads to the increase of fears, closed tribunal proceedings, a wide-spread use of stop and search powers, the curtailment of the right to protest or rebel against various issues, and the flimsy link to the determination of terrorist acts.

There is a process of inclusion of special laws, which governments implement. However, they have to seek to justify those laws within the remit of the human rights obligations.

In many ways, the Human Rights Act (2000) has provided a double-edged sword for many groups, from Amnesty International to politicians and civil liberty groups to name a few. In Europe, the European Convention on Human Rights (ECHR 2013) is put with the aim of balancing the rights of individuals and the response to terrorism.

Whilst providing a much-needed language and standpoint for the articulation of civil liberty and human rights concerns, there has also been much division as for the ability of this act to actually have any real impact on anti-terrorism laws. In many ways, it has been accused of being a forum to both justify and have a counterattack of basic civil liberties.

For example, Article 2 on “The right to life” is about having the right to live the life, which is protected by law. However, there are not many circumstances when the state can actually take away the life of its citizen. At the same time, people also possess the right to conduct an investigation in case any of the family members pass away when the state might have a connection to that death. According to a Guide to the Human Rights Act 1998 (2013), everybody who stays in the UK possesses those rights, including violent criminals or suspected terrorists who put the lives of others at risk.

According to Article 5 on other rights, signatory States are allowed to suspend some of the obligations during the national emergency times. The aforementioned special measures are named derogations. In the past, the UK used them regarding the time length for which the suspected terrorists could be detained without charge before the court. Moreover, as a result of the terrorist attacks of September 11, 2001, the Parliament passed Act 36.  It involved the UK that can use the right to derogate foreign nationals who are suspected as international terrorists. Moreover, those can also be the people who are intended to be deported or removed on national security grounds for a limited purpose. The Act allowed the terrorists who are suspected to be detained. The derogation resulted in the extent of such detention not to be permitted by Article 5. At the same time, the House of Lords declared the aforementioned Act part unlawful.

The Act and the ‘War on Terrorism’

Before conducting the analysis on the impact of terrorism legislation on the rights that was implemented domestically through the Human Rights Act of 1998, let us first look at the rights under the Article 5 of the ECHR1950 that are taken into consideration. It is essential to have a clear understanding of both how such offences as the acts of terrorism are sentenced domestically and analyse the theoretical background behind the aforementioned sentencing.

Article 5 provides every individual with the right of security and liberty. This concept is viewed as a compound one because a person’s security is never interpreted as separate in contemporary courts. Article 5 has also provided the recognition of liberty rights being either a detention under certain circumstances or a lawful arrest including the one on crime suspicion or a terrorist act perpetration.

Article 5 also provides an individual’s right to be informed in a language which person understands regarding the reasons of being arrested. Moreover, individuals should also have the right to access to judicial proceedings in order to determine whether their detention or arrest were legal. Furthermore, it is also about the accountability to Article 5 regarding the time reasonability of individual’s trial time or release and the right to compensation.

Thus, the effective development of policy sentencing involves particular rationales with clear purposes to optimise the Article’s powers. The aforementioned purposes as for the efficient system of sentencing are mainly focused on achieving rehabilitation, deterrence, retribution, and restorative justice founded upon the certain culpability of an offender.

The aforementioned understanding of an effective policy development is supported by a German philosopher Kant. His work is associated with the emergence of modern punishment theories. Kant argued about the fact that the only moral and legitimate justification for sentencing that is deserved by the offender is accurately decided to depend on the seriousness and nature of the offence that he has been accused.

The punishment was viewed as a threat and aimed at deterring crime. It served as a tool in civil society’s hands to neutralize human activities as for violations of the rights of other people. However, in the execution of punishment, the state had limited function and demanded an individual’s respect as the means of the corresponding social goal.  According to Byrd, such interpretation of Kant’s punishment theory keeps consistency through his writings on political, moral, and legal philosophy.

There are arguments that in spite of any nation, the developed sentencing policy within the frames of its legal state system should consider the fact of crime fear and its effective prevention. Thus, a corresponding system of sentencing policy should also guarantee that individual offenders that were accused in crimes received appropriate sentences. All of that should be implemented in order to achieve fairness and consistency in the sanctions for better management of the conflict regarding individual liberty under Article 5, which would generally satisfy society interests.

The aforementioned system of sentencing should be developed domestically in order to deal with terrorist acts.  Moreover, the government actors should be empowered to intrude on individuals’ right to liberty and be able to prevent potential wrongdoings connected with the sanction and crimes decisions.

There should be a general consensus about the policy of sentencing in order to balance the objectives and aims for both crime prevention and punishment apportionment. It should be done consistently and fairly for all. Thus, section 17 of the Terrorism Act (2006) and sections 62 and 63 of the Terrorism Act of 2000 make us hope that the UK is attempting to assert the universal jurisdiction regarding the topic of terrorist offences. It means that the person who internationally commits offences that have a certain influence on the UK falls under the jurisdiction of domestic authorities.

At the same time, the Anti-Terrorism, Crime & Security Act (2001)  impose higher penalties on those offenders who are being motivated by particular religious hatred. Thus, for example, a person who was born in Iraq and was granted asylum in the UK and British nationality later, before travelling to Iraq in 2004, could be detained by British armed forces with the reason of being suspected of terrorist activities and considered a subject to occasional reviews.

Based on the aforementioned fact, there are some significant concerns regarding the formulation of the definition of the term ‘terrorism” under the Terrorism Act 2000, which is now the Terrorism Act 2006. It is considered to be too broad and vague. That is connected to the fact that the Terrorism Act of 2000 was aimed at criminalisation of not only generally accepted activities that are ‘terroristic’ in character but also lawful demonstrations and gatherings,  and other forms of behaviour. In spite of the fact that they were unlawful, they could not be also considered as ‘terroristic.’

Section 1 of the Terrorism Act 2000 defines  ‘terrorism’ as follows: the action falling within subsection 2; the threat or act that is aimed at influencing an international organisation, the government, or can be intimidating the public, and the use or threat of which stimulates advancing any of the ideological, religious or political agenda.           Actions under the aforementioned subsection 2 involve serious violence and property damage and bring the life of others to danger. Moreover,  they create a serious public risk and may impact the work of an electronic system.

On one hand, analysing the Human Rights Act and its general provisions along with the supporting documents within the frames of protection of suspecting offenders, we can conclude that there is a positive shift towards the attempts of mentioning terrorists regarding their rights protection in Article 2 and 5.

On the other hand, the authorisation of the United Kingdom under United Nations Security Council Resolution 1546 (2004) can be considered as an obligation under the United Nations Charter (1945), which did not take into account the obligation of the United Kingdom under the Article 5 of the European Convention on Human Rights 1950. Thus, the impact of legislation that seeks to prevent the terrorism instances on Article 5 of the European Convention on Human Rights 1950 has proved to be a solid base. However, such provision does not have any chances to be recognised as there is a place for suspicion of terrorists’ acts being perpetrated.

The problem with such a broad nature of the anti-terror laws is that they impact the activities of executive powers. At the same time, they are very restrictive regarding both the individuals and communities human rights recognition under the European Convention on Human Rights 1950. As we see, it includes Article 5, however, with quite reduced judicial oversight.

There is a need for the use of the aforementioned executive powers to be narrowed down to the circumstances when severe restrictions could be considered necessary. Thus, the laws should be drafted proportionately and narrowly pursuing their main legitimate aim, which is national security protection.

Conclusions

The global war on terrorism has a profound effect on both civil liberties and human rights. The violation of both is not perceived as a threat to the state only during the war times.  It also demonstrates that human rights should be also seriously considered during peaceful times. Human rights should be treated in the way to fulfill their main purpose in society.

It is essential to remember that the values and rights exist because people need to be self-assured that they reside in a democratic society and are protected continually. They also should be aware of the fact that it should not be applicable merely when their governments recognize the need for those rights’ protection. At the same time, it should be noted that in this case, we deal with something more significant than just a violence that is justified. Thus, maybe, there is also a need to find some other ways to fight terrorism and view potential offenders differently.

There have been both individual advances and constitutional problems because of the Act implementation. It appeared to be clearly drafted and attempted to be an essential document; however, it provoked various difficult constitutional issues that are quite time-consuming.

At the same time, it is quite challenging to discuss who is to blame in this case: the courts, the mindset, the Parliament, or the Parliamentary draftsmen. However, those are considered very difficult questions regarding the constitutional relationship between the courts and the Parliament.

It is clear that the implementation of the law regarding the prevention of terrorism is proved to be a more complex issue concerning the recognition of human rights via the Human Rights Act of 1998 under the European Convention on Human Rights 1950. At the same time, it is also essential to note that the provision should be read according to other international legislation. That will allow its remit to be usurped within the frames of the Article 5 of the European Convention on Human Rights 1950.

The aforementioned facts support the question of whether the Human Rights Act (2000) is hampering the ‘war on terror’ as continuously debating one. There can be many opponents to this issue, and, at the same time, many agree that the coming into force of the Human Rights Act in 2000 is coincidental with the ‘War on Terror’ start.  There are the supporters of the idea that it was a provoking factor and turned into various controversies in legislation. As a result, the judiciary is quite often being criticised for advising the government not to adopt the legislation regarding the human rights law. Thus, it is impossible to state unambiguously whether or not The Human Rights Act (2000) is hampering the ‘War on terror.’