Executive Measures, Terrorism and National Security

Counter-terrorism
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Hungary: Constitutional changes would grant the Executive sweeping counter-terrorism powers

Breadcrumb Home. Minimum safeguards on intelligence sharing required under international human rights law. Thursday, July 11, What PI is fighting for. ID, Identity and Identification.

UN Counter-Terrorism Official on Threats Posed by ISIL - Security Council Briefing

Strategic Area. Safeguarding Peoples' Dignity. What PI is campaigning on. Scrutinising the global counter-terrorism agenda. Shoot to kill powers, for example, or laws which enable confessions obtained by torture or cruel, inhuman or degrading treatment to be admitted into evidence, should never make it onto the drafting table. In the wake of national and international reports warning of a rising tide of racism and intolerance directed at Arab and Muslim communities 3 , States must also remember that the prohibition of racial discrimination is a pre-emptory norm of international law from which no derogation is permitted.

Importantly, States must recognise that while the right to a fair trial is not listed as a non-derogable provision in article 4 2 of the ICCPR, 5 the United Nations Human Rights Committee has stated that the fundamental requirements of fair trial must not be abrogated in any circumstances. The 2nd principle is that derogable rights should only be infringed in accordance with human rights law. International human rights law permits states to take protective actions which limit derogable human rights in carefully defined circumstances.

Article 4 of the ICCPR sets out the human rights — including the right to liberty and the right to freedom of association — that may be justifiably infringed by States 'in times of public emergency which threatens the life of the nation'. However, the effect of article 19 3 is that this right is subject to such restrictions that are necessary and proportionate to protect national security in a democratic society.

The fundamental litmus test that must be met by any law that seeks to restrict a non-derograble ICCPR right is the proportionality test. The 3rd principle is to respect the role of an independent judiciary in overseeing the application of counter-terrorism laws.

Responding to a terrorism incident

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While this principle may seem straightforward there are three trends which I believe subtly undermine the proper functions of an independent judiciary. Firstly, despite international recognition of the vital role of an independent and impartial judiciary in overseeing the application of counter-terrorism laws, new counter-terrorism power tend to be located in the executive, rather than the judicial branch, of government.

While in extraordinary circumstances time may not permit judicial oversight of the authorization in advance of the exercise of the special powers, HREOC believes that in most cases the exercise of counter-terrorism powers that may infringe fundamental rights and liberties can and should be authorised by a judicial officer.

Secondly, the legal tests the court is asked to apply must be capable of meaningful application. In other words, judicial oversight must provide more than simply the veneer of legality.

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Under this Act the Court has the power to decide whether or not to withhold information from the defendant on national security grounds. However, the Court must give the greatest weight to the certificate from the Attorney-General which seeks to prevent the disclosure of the information is likely to prejudice national security. It is no doubt true in theory the National Security Information Criminal and Civil Proceedings Act does not direct the court to make the order which the Attorney-General wants.

But it does as close as it thinks it can. It weights the exercise of the discretion in favour of the Attorney-General and in a practical sense directs the outcome of the closed hearing. Thirdly, the judicial decisions about the application of counter-terrorism laws must be seen to be free from political interference. Those charged with counter-terrorism offences must have their guilt or innocence determined in the judicial arena; not the hot-house of domestic politics.

The problems that arise when the executive is perceived to interfere in the criminal justice process were illustrated in Australia by the case of Dr Mohammed Haneef. Following the attempted Glasgow bombings, Dr Haneef was detained for 12 days under anti-terrorism legislation before being charged with the offence of providing support to a terrorist organisation.

Executive Measures, Terrorism and National Security : Have the Rules of the Game Changed?

A magistrate granted Dr Haneef bail on the basis that the prosecution case was weak. The criminal charges against Dr Haneef were later dropped due to lack of evidence. However, regardless of the outcome of this litigation, it remains unclear why the Minister made his decision in the middle of, instead of following the conclusion of, the criminal justice process. The 4th principle is to establish regular, independent review of the operation of counter-terrorism laws. While aspects of Australian counter-terrorism laws have been subject to independent review, other parts have not.

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Regular, independent review of counter-terrorism legislation is vital because of:. Counter-terrorism reviews should not just focus on one aspect of the counter-terrorism legal framework but consider how counter-terrorism laws are working as a whole.

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For example, a person who is the subject of an application for a control order may not be informed of particular evidence in the case against him because it is information that is considered likely to prejudice national security within the meaning of the National Security Information Criminal and Civil Proceedings Act Establishing a permanent independent reviewer is a better option that appointing a grab-bag of discrete committees because it allows the independent reviewer to develop expertise in a very complex area of law.

A permanent independent reviewer should be given powers to gather information from a wide range of sources, including intelligence agencies; and be required to consider the human rights impacts of the laws. Finally, the recommendations of the independent reviewer need to be taken seriously. The 5th principle is to make sure persons who are subject to count-terrorism laws can challenge the validity of decisions which impact on their rights.

It is therefore imperative that persons who may be caught up in the exercise of the new powers can seek judicial review, to check if the decision has been made legally , and independent merits review, to check if the decision was made on the correct facts. Without these review mechanisms there are no safeguards to protect individuals from the injustice that would result from the abuse, misuse, or erroneous application of the counter-terrorism powers. This approach is consistent with article 2 3 of the ICCPR which provides that a person has a right to an effective remedy if his or her human rights are violated.

The overarching principle is that governments should give domestic force to international human rights law by introducing explicit statutory protections for human rights.