Terrorist attacks in the last decade have profoundly altered and reshaped the priorities of many legal systems. Below, Aniceto Masferrer and Clive Walker suggest the important theme of crossing legal categories represents a recurrent issue which underlies counter-terrorism laws, and argue that boundary-crossing must be considered carefully, without any expectation that it will deliver greater security.
The decade’s worth of counter-terrorism legal responses since 9/11 provides a suitable waypoint at which to take stock. Those terrorist attacks in the United States, followed by atrocities such as the Madrid train bombings of March 2004, and the July 2005 killings in the London transport system have profoundly altered and reshaped the priorities of many legal systems. The ‘new’ terrorism has even been perceived at times as threatening the lives of democratic nations, resulting in a declaration of ‘the war on terror’ by US President George W Bush. The depth of the crisis is revealed by the fact that the US ‘war on terror’ persists today in law and action, even under the rhetorically less bellicose Obama administration. Under that regime, the ‘war’ label has fallen somewhat from favour and has narrowed in focus, with the prospective withdrawal from Afghanistan in 2014 marking a significant drawdown of resources devoted to the campaign. Yet, even that signal event may not be a decisive turning point which marks the end of the ‘war on terror’, leaving aside whether any US President would be brave enough to declare a victory. In this way, military action beyond the bounds of pre-existing laws of war is set to remain palpable in the guise of military detention and trials at Guantánamo Bay and an increasing reliance on lethal force against the enemies of the state as delivered from unmanned aerial vehicles (drones).
Though the United States is an outlier amongst Western states because of the dominance of its military response, almost all other jurisdictions have taken heed of the United Nations calls for action against terrorism by strengthening domestic counter-terrorism laws. The trend first came through the promulgation of UN Security Council Resolution 1368 on 12 September 2001, which ‘Calls … on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions…’. The follow-up involved the establishment of the UN Counter-Terrorism Committee by Security Council Resolution 1373 on 28 September 2001 in order to conduct periodic reviews of the activities of every country. As a result, no country can now view itself as immune from the threat of terrorism or from the international law duty to combat terrorism by law.
There are many ways of analysing the multitude of national legal responses to terrorism which have emerged since September 2001. Approaches adopted include national and comparative detailed and thematic analysis and critique, philosophical, political and historical groundings, and the application of qualitative and quantitative methodologies in order to assess impacts. Unfortunately, much of the legal academic discourse in the past decade has been produced by authors who have lacked the appreciation that all these different perspectives are necessary for a sound appreciation of terrorism and counter-terrorism. As a result, they regularly fail to understand that counter-terrorism did not commence for many jurisdictions on 9/11 or that most terrorism activity remains grounded in ethnic or nationalistic causes rather than jihadi doctrines associated with al-Qa’ida.
Despite the prevalence of the discourse of ‘balance’, the arguments are often confused and misleading. The underlying assumption that security and liberty can be ‘balanced’ in a causal relationship – less of one automatically means more of the other – is not factually correct, especially as security is a value for liberty, and liberty is a value for security. Both are important to our lives and have been described metaphorically as core ingredients in the recipe for life or as strands which strengthen a cord; changing any ingredient or weakening one strand does not help to attain the desired outcome. The balancing process also incurs profound difficulties in terms of measurement – what is the scale to be imposed, is it common to both security and liberty, and can we trust ourselves when in a state of terror in the short-term to measure accurately for the long-term? Furthermore, consequentialist arguments are of dubious validity when weighing deontic values which cut across both liberty and security. In short, it is better to eschew any simplistic balance between security and rights and to develop more intellectually rational, structured, and finely attuned mechanisms for choice even if there remains ultimately a ‘tragic choice’ between values.
Instead of the ‘balance’ motif, our prism for understanding is that the recent codes of counter-terrorism laws have constantly and acutely challenged traditional legal concepts. The emergent counter-terrorism legal catalogue thereby transcends traditional ethical, legal and organisational boundaries of legal categorisation and poses fundamental questions about the values at the heart of each affected legal system, both in domestic and international law. In a recent book, we seek to identify and explore the new tensions and analyses and to criticise the often unwanted outcomes within common law, civil law and international legal systems.
These challenges of crossing boundaries can be seen at every turn and at every time. The initial responses to the 9/11 attacks involved fundamental questions about whether the appropriate overall juristic categorisation should be ‘war’ or ‘crime’, a controversy which should have entailed deep reflection upon the very concept of ‘terrorism’ and the goals behind its ascription. The implementation of counter-terrorism law has further been infused with discourse about the boundaries between conflicting political and social values. This discourse is usually depicted as a struggle between state security and the liberties and freedoms of the individual citizens of the state. It leads to the advocacy of the prioritisation of one value over the other (usually of security over rights) or of the reconciliation of security within the paradigm of human rights (by way of claims to security from external threats and the maintenance of civil peace and the sanctity of life) or even an ultimate synthesis within the promotion of what was once radically called the ‘commonwealth’ and now more often takes the indistinct yet Promethean guise of ‘human security’.
Next, there is the boundary between international law and national enforcement. Even without distinct international normative standard-setting around the concept of terrorism, the attacks of 9/11 propelled the UN Security Council to signal significant international demands in terms of legal compliance, though, at the same time, that compliance encouraged rather than replaced the exercise of national security sovereignty.
In summary, this important theme of crossing legal categories represents a recurrent issue which underlies, pervades and bedevils counter-terrorism laws. As a result, this commonly patterned impact of counter-terrorism since 9/11 should be viewed as a fundamental paradigm for the future analysis of counter-terrorism laws. Each layer of boundary-crossing must be considered carefully, without any expectation that boundary-crossing is desirable or will deliver greater security.
About the Authors
Aniceto Masferrer is Professor of Legal History and teaches legal history and comparative law at the Faculty of Law, University of Valencia. He has published extensively on criminal law from a historical and comparative perspective, as well as on the codification movement and fundamental rights in the Western legal tradition. He has been fellow researcher at the Institute Max-Planck for European Legal History (2000–2003), Visiting Professor at the University of Cambridge (2005), Visiting Scholar at Harvard Law School (2006–2007) and at Melbourne Law School (2008), Visiting Professor at the University of Tasmania (2010) and Visiting Scholar at Louisiana State University (2013).
Clive Walker is Professor of Criminal Justice Studies at the School of Law, University of Leeds, where he has served as the Director of the Centre for Criminal Justice Studies (1987–2000) and as Head of School (2000–2005, 2010). He has written extensively on terrorism issues. His recent publications include: Terrorism and the Law (Oxford University Press, Oxford, 2011) and Free Speech in an Internet Era (Carolina Academic Press, Durham, NC, 2013). He is currently the special adviser to the Home Office’s Independent Reviewer of Terrorism Legislation and has served as a special adviser to the UK Parliamentary select committee which scrutinised what became the Civil Contingencies Act 2004. A book commentating upon that Act, The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom, was published by Oxford University Press in 2006. He has also been a witness before various inquiries on terrorism in Australia, Canada, and the US.
Their co-edited book, Counter-Terrorism, Human Rights and the Rule of Law, has just been published by Edward Elgar.