Terror Meets Tyranny? The Interface Between Counter Terrorism And Human Rights
| Author: |
Alex Conte LLB (Cant), LLM (Hons)(VUW)
Lecturer, Canterbury University School of Law
|
| Issue: |
Volume 9, Number 3 (September 2002)
|
A paper presented at the Australasian Law Teachers'Association Conference
Law and Social Justice Committee 29 September to 2 October
2002, Murdoch University, Perth, Western Australia
Contents
- This paper looks to examine the interface between counter-terrorism and human rights. In particular, it seeks to address the question
of whether, and if so to what extent, human rights may be limited in the pursuit of counter-terrorist objectives. This is a tension
that exists at both the domestic and international level. It illustrates the conflict between the objectives of the United Nations
to maintain peace and security on the one hand and to protect human rights on the other: a tension that has existed throughout the
history of the United Nations including, for example, humanitarian intervention efforts. Within territorial boundaries, the tension
equally exists between a State's international counter-terrorist and human rights obligations, as well as its own national security
interests.
- It should be said at the outset that this work does not propose to examine particular provisions within counter-terrorist legislation.
To do so would, as will be seen in the following discussion, be unfeasible. The author, instead, hopes to establish a framework
within which such inquiries can be conducted and to draw general principles for application within such examinations.
- This is an enormous topic in itself. The following serves to outline the state of international law on terrorism and to highlight
some recent developments in the area. The author pays more attention to this issue within his paper "International Law and Terrorism:
Building a Framework for the Fight Against Terror", a paper presented at the 10th Annual Meeting of the Australian & New Zealand
Society of International Law, New Challenges and New States: What Role for International Law?, 16 June 2002, Australian National
University, Canberra.
- It is, firstly, necessary to acknowledge the problems with defining terrorism. The United Nations Terrorism Prevention Branch describes
terrorism as a unique form of crime. Terrorist acts, it says, often contain elements of warfare, politics and propaganda.[1]
It continues, stating that "[f]or security reasons and due to lack of popular support, terrorist organisations are usually small,
making detection and infiltration difficult. Although the goals of terrorists are sometimes shared by wider constituencies, their
methods are generally abhorred." These points can be readily agreed upon and the common threads throughout the various definitions
proposed are that, firstly, the "physical" targets of a terrorist act are not the primary targets (usually a Government or Organisation);
next, that the purpose of the threat or violence is to intimidate and create a situation of fear; and, finally, that this is intended
to persuade or dissuade the primary target to do (or abstain from doing) something.
- More controversial is consideration of the purpose of the conduct.[2]
For instance, does a bombing carried out by a rebel group, which is directed towards the destabilisation of fascist authorities
(the Pol Pot Regime, for example), amount to a terrorist act or an act of "freedom fighters"? The point to make is that this is
not just a cliché. To give a striking example, the United States keeps a list of the most wanted terrorists[3]
which featured, at one time, Yassir Arafat and Nelson Mandela - both of whom were subsequently awarded the Nobel Peace Prize. An
observation made by a journalist on this point encapsulates very nicely the highly political and controversial nature of this issue:
"Terrorists are those who use violence against the side that is using the word."[4]
- There are twelve international conventions and protocols on terrorism, each focussing on a particular operational setting, whether
this be the safety of civil aircraft or that of maritime platforms. Australia has ratified nine of the conventions, while New Zealand
has ratified eight.[5]
- One of the prevailing purposes (if not the paramount purpose) of the United Nations is the maintenance of international peace and
security.[6]
Terrorism is, quite naturally, a threat to such peace and security and both the United Nations General Assembly (UNGA) and United
Nations Security Council (UNSC) have been working in concert on the issue of counter-terrorism for some time.[7]
In December 1994, the General Assembly adopted the Declaration on Measures to Eliminate International Terrorism.[8]
The Declaration was based on the notion of peace and security and the principle of refraining from the threat or use of force in
international relations.[9]
It pronounced that terrorism constitutes a grave violation of the purpose and principles of the United Nations.[10]
While it did not purport to define "terrorism", it did say that criminal acts intended or calculated to provoke a state of terror
in the general public for political purposes are in any circumstances unjustifiable.[11]
The Declaration urged all States to consider, as a matter of priority, becoming party to the conventions on terrorism adopted up
to that time.[12]
It called on States to refrain from organising, instigating, assisting or participating in terrorist acts, and from acquiescing
in or encouraging activities within their territories directed towards the commission of such acts.[13]
- At the end of 1996, and in pursuit of the objectives under the latter Declaration, the UNGA established an Ad Hoc Committee, known
as the Ad Hoc Committee Established by General Assembly Resolution 51/210.[14]
The Committee was primarily tasked with work on conventions for the suppression of terrorist bombings and financing of terrorist
operations and, thereafter, with addressing means of developing a comprehensive legal framework dealing with international terrorism.[15]
Within the scope of the latter brief, the Committee was tasked with working on a proposal by India for a Comprehensive Convention
on International Terrorism, its idea being to establish a document with a global application to and definition of terrorism to supplement
the existing, more limited, operational conventions.[16]
- On the day after September 11, the UN Security Council adopted Resolution 1368, through which it unequivocally condemned the terrorist
attacks and expressed that it regarded them as a threat to international peace and security.[17]
It called on all States to urgently work together to bring justice to the perpetrators, organisers and sponsors of the terrorist
attacks.[18]
UNSC Resolution 1373 was later adopted: through it, the UNSC determined that all States will prevent and suppress the financing
of terrorist acts, including the criminalisation of such financing and the freezing of funds and financial assets.[19]
Described as one of the most strongly worded resolutions in the history of the Security Council[20]
it also requires countries to cooperate on extradition matters and the sharing of information about terrorist networks.[21]
- Of note, paragraph 6 of Resolution 1373 calls upon UN members:
"...to report to the Committee, no later than 90 days from the date of adoption of this resolution and thereafter according to a timetable
to be proposed by the [Security Council Counter-Terrorism] Committee, on the steps they have taken to implement this resolution."
- The reaction of States to the Resolution 1373 has been, almost invariably, to introduce or amend counter-terrorist legislation and
to take various other policy or regulatory steps in support of its objectives.[22]
- It is the scope of those steps and the manner in which they have been taken that has been of concern to politicians, civil liberties
groups and various non governmental organisations throughout the world. This paper does not propose to examine New Zealand's, or
other countries', legislation or practices in detail since this would be a substantial exercise in its own right. The aim here is
to highlight the nature of misgivings raised within New Zealand and other jurisdictions concerning executive powers, due process,
and privacy.
- In New Zealand, the Canterbury Council of Civil Liberties presented submissions to the Foreign Affairs Defence and Trade Select Committee
on the Terrorism Suppression Bill.[23]
It submitted that the Bill gave the Executive much enlarged powers without sufficient judicial safeguards for those named as being
involved - however remotely - in terrorist acts.[24]
Similarly, Auckland University law professor Jane Kelsey has criticised New Zealand's proposed legislation, saying that certain
proposed national security procedures were outrageous.[25]
She pointed to the fact that a person or group, within or outside New Zealand, could have been designated a "terrorist" or "associated
person" solely on the say of the Director of the Security Intelligence Service. If the Director held classified security information
that he or she believed was credible, the Director could simply have provided a security risk certificate to the Minister. In other
words, while the Minister of Foreign Affairs would have formally made the designation, the Minister could have been blocked from
knowing any of the reasons for such a designation. This provision was removed from the Bill prior to its presentation to Parliament
in March 2002.
- Clauses 9 and 10 of the Terrorism Suppression Bill (NZ) set out what kinds of practices are outlawed, the aim being to prevent facilitation
or financing of terrorist groups. The provisions are very broad and include liability for being "reckless" as to the end to which
their product or service is to be put. David Small, Senior Lecturer in Education at the University of Canterbury and board member
of the Action Research and Education Network of Aotearoa, points to the fact that, under these provisions, it is illegal to offer
support not only to an entity that has carried out terrorist attacks, but also to any entity that has facilitated such an act. This,
combined with the broad nature of the definition of "terrorism" within clause 5 of the bill, would mean, according to Small, that
literally thousands of New Zealanders could be charged under these provisions.[26]
- Within a package of anti-terrorism bills in Australia, the Telecommunications Interception Legislation Amendment Bill 2002 was to permit extensive surveillance powers. Under the original form of the bill, a broad range of government agencies would have
gained power to intercept and read email and voice mail messages without a warrant, although an interception warrant would have remained
necessary to listen in on telephone calls. These amendments were voted against, following submissions that they would unnecessarily
extend government surveillance powers.[27]
- This has also been an issue within the United States, where very recent reports indicate that a backlash against invasive laws has
begun. The US Foreign Intelligence Surveillance Court, a special court that oversees sensitive law enforcement surveillance within
the United States, ruled in mid-May 2002 that Attorney General John Ashcroft was required to change his guidelines for FBI terrorism
searches and wiretaps.[28]
The Court rejected the guidelines as not being designed to reasonably safeguard the privacy of Americans. On that basis, the Justice
Department quickly amended its guidelines, which received the Court's approval. Notwithstanding this, officials in President George
W. Bush's administration have said that they have appealed the restrictions, arguing that the new limits imposed by the Court inhibit
the sharing of information between terrorism investigators and criminal detectives.[29]
- Similar criticisms and concerns were raised in relation to New Zealand's Terrorist Suppression Bill and the provisions within the
bill allowing for the collection of information by the Security Intelligence Service.[30]
- In direct response to UN Resolution 1373, Canada introduced an anti-terrorism bill (Bill C-36) which aims to define terrorism and
enact it as a punishable offence within Canada's Criminal Code. The crime of terrorism, combined with more freedom for police officers
to use wiretaps and make arrests, is said by Canadian authorities to make it a lot easier to crack down on terrorists and the people
who fundraise for them.[31]
For instance, police will not require a warrant to make an arrest if they believe they are preventing a terrorist attack. The legislation
will also allow the use of wiretaps to seek out terrorists to be extended for one year from the usual two months and the requirement
of telling the suspect about electronic surveillance after it has taken place could be delayed for up to three years.
- Within the already mentioned package of anti-terrorist legislation in Australia, it is proposed that the Australian Security Intelligence
Organisation would have much stronger powers; the Attorney-General would be allowed to ban any groups or organisations; the right
to silence would be removed; and people could be jailed for life for possessing a "thing" connected to terrorism, even if they had
no idea that the thing would be used for the purposes of terrorism.[32]
From a due process perspective, it is said that the legislation would mean that suspects could still be jailed indefinitely, without
contact with the outside world and without a lawyer present during any interrogation.[33]
- The apprehension and investigation of suspected terrorists within the United States has attracted various allegations concerning the
inhumane treatment of those suspects and a lack of application of due process rights.[34]
At an early stage, questions were raised about the detention and questioning of suspects by US authorities, particularly in the
context of Afghani prisoners being allegedly unlawfully detained, without being charged, at the United States military base at Guantanamo
Bay in Cuba.[35]
Not unexpectedly, the US Government has denied ill-treatment of detainees.[36]
- Canadian counter-terrorist law will add to the scope of existing legislation. Under the Income Tax Act, organisations supporting
terrorist groups that claim to be charities could be stripped of their charitable status. The Official Secrets Act will be amended
to address the threat of foreign powers and terrorists spying on Canada. The Canada Evidence Act would offer more protection to
the country's intelligence information. The National Defence Act would enable the Communications Security Establishment to gather
intelligence on terrorist groups. The bill would also allow the government to store the DNA of convicted terrorists, to compile
lists of terrorists and their organisations and to freeze and take away the assets of terrorists and their supporters.
- These initiatives have been met with criticism.[37]
Dr Mohamed Elmasry, national director of the Canadian Islamic Congress, pointed to the fact that such measures had not been seen
since the Second World War. The Canadian Jewish Congress suggested the words "terrorist" and "terrorism" not apply to labour strikes
and protests, even illegal ones. Similar submissions were made by the New Zealand Law Society in response to New Zealand's Terrorism
Suppression Bill, with changes made accordingly.[38]
Most controversially, the proposed legislation allows police to hold people without charge, and allows closed trials for suspected
terrorists.
- Even prior to September 11, the issue of arrest without bail and detention without trial has been raised within various jurisdictions,
including Afghanistan's neighbour Pakistan. At the International Bar Association Human Rights Institute Conference in 1998, two
prominent judicial figures from Pakistan criticised the then existing counter-terrorist legislation as failing to counter terrorism
and instead countering human rights standards.[39]
At the same time, however, former Chief Justice Shah has recognised that terrorism cannot be countered without some level of limitation
upon human rights.[40]
This position is discussed in more detail below.
- In addition to the type of criticisms already mentioned, there is the risk of anti-terrorist legislation being manipulated to serve
ulterior motives. This was in fact raised by the UN High Commissioner for Human Rights concerning laws recently passed in China
that appear to increase the State's powers of arrest and detention, the effect of which is to speed up trials and widen the use of
the death penalty.[41]
Commissioner Mary Robinson said that targets of the new measures have been members of the banned Falun Gong spiritual movement and
Uighur minorities in Xinjiang, a predominantly Muslim region in China's northwest. In a meeting between Robinson and Vice Premier
Qian Qichen on 19 August 2002, the Vice Premier had agreed that it was "most important to uphold human rights standards" when combating
terrorism. The legislation, however, appears to be aimed at enabling the State to take drastic measures against the Falun Gong spiritual
movement as an objective in and of itself, using the excuse of implementing counter-terrorist measures.
- A less dramatic example, but one that nevertheless impacts upon the freedoms of movement, expression and association, was a recent
decision by Australian authorities to deny a passport.[42]
In seeking to renew his passport, Zak Mallah was interviewed by the Australian Security Intelligence Organisation and asked whether
he intended to participate in violence overseas. Explaining that he wanted to travel for the purpose of finding a bride, he denied
that he had any intention of participating in any violent action, but then foolishly stated that if Jihad was declared, the Koran
would require him to take part. In a letter rejecting his passport, Mr Mallah was told that the Minister of Foreign Affairs had
formed the opinion that he was likely to engage in conduct that might prejudice the security of Australia or a foreign country.
- Against the background of the international initiatives and law to counter terrorism and the various concerns raised about the manner
in which those initiatives are implemented, a conflict of wills is exposed: the desire to eradicate terrorism versus the maintenance
of human rights standards. The question is whether the two objectives are compatible: can human rights be limited within a free
and democratic society in the pursuit of counter-terrorist endeavours and, if so, to what extent?
- The words of the United Nations Secretary-General, Kofi Annan, when addressing the issue of terrorism before the General Assembly
of the United Nations in 1999, are no less relevant today. He said:
"We are all determined to fight terrorism and to do our utmost to banish it from the face of the earth. But the force we use to fight
it should always be proportional and focused on the actual terrorists. We cannot and must not fight them by using their own methods
- by inflicting indiscriminate violence and terror on innocent civilians, including children." [43]
- His comments focus on the more physical aspects of countering terrorism. They are just as relevant, however, to the issue of striking
a balance between counter-terrorism and the protection of civil rights. Some time before him, Aristotle made an equally relevant
observation:
"Man, when perfected, is the best of animals, but when separated from law and justice, he is worst of all."[44]
- The starting point is that, notwithstanding the importance of the objective of counter-terrorism and the very strong wording of Resolution
1373, implementation of counter-terrorist measures must comply with existing international human rights obligations. For it to do
otherwise would be to allow the UN Security Council, with a membership of 15, effectively to override international human rights
treaties, including the United Nations Charter and the Universal Declaration of Human Rights (the founding documents of the United
Nations).[45]
- At the same time, it must be acknowledged that human rights are not absolute. In some circumstances, rights and freedoms must be
qualified in order to achieve other democratic objectives. Typically, this occurs within two scenarios. The first is where a right
or freedom conflicts with or must be measured against another right or freedom.[46]
For example, freedom of expression does not carry with it the right to incite violence or racial hatred, defame others or engage
in commercial fraud.[47]
A further example is commonly seen in questions concerning the medical treatment of children. In such cases and for various reasons
including religious belief, the parents of a child may choose not to permit their child to receive medical treatment, which exposes
a conflict between the rights of the child[48]
and the right to religious belief.[49]
- The next category of permissible derogation of rights is within the context of a conflict between a right or freedom and some important
objective of the State. This, in turn, can be viewed with the frame of two categories: derogation of rights because of a state of
emergency, as permitted by article 4 of the International Covenant on Civil and Political Rights[50]
and/or where there is some pressing objective of the State that needs to be met for the maintenance of society itself. The latter
qualified guarantee is effected within New Zealand legislation through Section 5 of the New
Zealand Bill of Rights Act 1990 (NZBORA),
which provides that:
"Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."[51]
- The achievement of counter-terrorist objectives would appear, at face value, to be a purpose that may justify limitations upon rights
and freedoms. Before examining the application of section 5 of the NZBORA to this question, however, it is useful to consider the
views and positions espoused within the international arena.
- What follows is an appraisal of the "parent" international document to the NZ Bill of Rights, the International Covenant on Civil
and Political Rights (ICCPR), and the work and comments on the subject of United Nations organs: the General Assembly and Commission
on Human Rights.
- As indicated, the ICCPR recognises within its preamble and article 4 that rights are not absolute. The preamble to the Covenant reads
as follows:
"The States Parties to the present Covenant,
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace
in the world,
Recognizing that these rights derive from the inherent dignity of the human person,
Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and
political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil
and political rights, as well as his economic, social and cultural rights,
Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of,
human rights and freedoms,
Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility
to strive for the promotion and observance of the rights recognized in the present Covenant,
Agree upon the following articles..."
- In turn, article 4 of the Covenant permits certain limitations upon rights and freedoms.[52]
When a public emergency which threatens the life of a nation arises and that is officially proclaimed to be so, a State party can
derogate from a number of rights to the extent strictly required by the situation. The State party cannot, however, derogate from
certain specific rights and may not take discriminatory measures on a number of grounds.[53]
States are also under an obligation to inform other States parties immediately, through the UN Secretary-General, of the derogations
it has made, including the reasons for such derogations and the date on which the derogations are terminated.[54]
- The Human Rights Committee has issued a general comment[55]
on the application of article 4.[56]
It clearly considers that this is limited to states of emergency, as provided for within municipal legislation setting out grounds
upon which a state of emergency may be declared.[57]
While the Committee does not explain its rationale in coming to this view, it seems to be based upon the wording of article 4(1)
and upon the idea of certainty and the rule of law: the principle that there be certainty in the law, reasonably ascertainable by
the people within a State so that they are able to regulate their conduct accordingly and know the basis upon which the State can
act.
- Within the comments of the Committee, the view was expressed that measures taken under article 4 are of an exceptional and temporary
nature and can only last as long as the life of the nation concerned is threatened. Would this serve as an appropriate mechanism
(at least for the purpose of the Covenant) by which counter-terrorist measures infringing human rights could be justified? One might
argue that such measures will only in very limited circumstances be said to be within the context of a state of emergency which threatens
the life of the State (i.e., during the period of the terrorist activity itself, where this is directed at the State or its people
or territory, as occurred in New York and Washington DC on September 11, 2001). To counter this, one might equally say that acts
of terrorism do strike at the heart of a nation and that the activation of such measures is only temporary (during the emergency
period alone) and thus in satisfaction of the Human Rights Committee's conditions.
- While the latter argument might hold some attraction, it is flawed for several reasons. Firstly, counter-terrorist measures, as has
been seen within earlier discussion, include surveillance, investigation and prosecution: events prior to and after terrorist conduct
and therefore outside what might be considered to be any state of emergency. Next, some such measures are not temporary in nature
- surveillance being the prime example (an activity designed to learn of terrorist threats prior to their being effected and thereby
prevent them). Furthermore, the rights and freedoms upon which counter-terrorist measures impact include, or have the potential
to impact upon, the non-derogable right of freedom from torture or to cruel, inhuman or degrading treatment or punishment,[58]
although this will depend upon the particular measures in question and the manner in which they are applied. As stated by the Committee:
"[I]n times of emergency, the protection of human rights becomes all the more important, particularly those rights from which no
derogations can be made."[59]
- For the foregoing reasons, the conclusion this paper is drawn to is that the International Covenant on Civil and Political Rights
does not, itself, permit counter-terrorist measures to limit rights and freedoms except in the very narrow situation of terrorist
conduct creating a state of emergency threatening the life of the nation and, even then, only by way of temporary means and so long
as the non-derogable rights set out in article 4(2) are left intact. Article 4 is therefore, in the author's view, deficient in
the current context. If one applies its permissible limitations within the terms described by the Human Rights Committee, this would
be too late. Counter-terrorism, by definition, involves the idea of preventing terrorist activities before they create a state of
public emergency.
- This creates a somewhat bizarre anomaly. As will be discussed, the international community has recognised that terrorism itself poses
a threat to human rights. Various municipal bills of rights, including that of New Zealand, allow for the limitation of rights where
such limitations are justifiable in a free and democratic society, such limitations not being restricted to states of emergency and/or
temporary measures. Further, the Universal Declaration of Human Rights 1948 ("parent" to the ICCPR, and part of the "International
Bill of Rights" along with the ICCPR and the International Covenant on Economic, Social and Cultural Rights) contains a general limitation
clause within article 29:
"In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely
for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements
of morality, public order and the general welfare in a democratic society."
- The practical result posited by the author is that, while States party to the ICCPR may well be in breach of the Covenant by implementing
counter-terrorist measures that limit those civil and political rights, so long as those measures can be justified as being sufficiently
important to counter-terrorism and not applied in excess, the Human Rights Committee would find little support in any criticism of
the measures. In fact, the United Nations Commission on Human Rights has called for all relevant human rights mechanisms to have
due regard to terrorism and the negative consequences caused by it upon the maintenance of human rights standards.[60]
- This position is certainly reflected in the approach adopted by municipal courts. It is a basic and well known proposition that if
the terms of a domestic statute are clear and unambiguous, then they must be applied by the Courts.[61]
This will be so even if such an interpretation would mean that the law is applied in breach of some international legal obligation
assumed by New Zealand. Notwithstanding the resultant breach of international obligations, the Courts have taken the position that
there will be no derogation from this doctrine of interpretation. In Ashby v Minister of Immigration,[62]
for example, Richardson J plainly stated that if the terms of the domestic legislation are clear and unambiguous, they must be given
effect to by the Courts whether or not those terms carry out New Zealand's international obligations.
- If one considers various statements of the United Nations General Assembly, it appears that a link between the limitation of rights
for the purpose of countering terrorism has already been made.
- On the fiftieth anniversary of the United Nations, the General Assembly adopted Resolution 50/6, within which it set out certain principles
by which it would be guided in its future endeavours with respect to peace, development, equality and justice.[63]
Within the category of peace, the maintenance of which - as already mentioned - is the principal objective of the United Nations,
the General Assembly resolved that UN members should act together to defeat the threats to States and people posed by terrorism,
in all its forms and manifestations.[64]
- One of the more recent official statements on the interrelationship between counter-terrorism and human rights is General Assembly
Resolution 54/164.[65]
Within its preamble, Resolution 54/164 affirms that it is guided by the Charter of the United Nations and the Universal Declaration
of Human Rights and the International Covenants on Human Rights. It reaffirmed the position that terrorism is aimed at the destruction
of human rights, fundamental freedoms and democracy.[66]
More specifically, it characterised terrorism as something aimed at the destruction of human rights, the right to life being the
most basic of rights, and expressed the view that terrorism creates an environment that destroys the right of people to live in freedom
from fear.[67]
In addition, it said that terrorism destroys the right to liberty and security.[68]
It condemned terrorist conduct as:
"...activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening the territorial integrity
and security of States, destabilizing [sic] legitimately constituted Governments, undermining pluralistic civil society and having
adverse consequences for the economic and social development of States".[69]
- When reading the Resolution as a whole, it is clear that the General Assembly regarded terrorism as a direct threat to two United
Nations principles: the maintenance of peace and security and of human rights.
- The United Nations Commission on Human Rights has made similar comments. Within the preamble to its Resolution 1999/27, which was
specifically mentioned within UNGA Resolution 54/164 just mentioned, it said:
"Regretting that the negative impact of terrorism, in all its dimensions, on human rights continues to remain alarming, despite national
and international efforts to combat it,
Convinced that terrorism, in all its forms and manifestations, wherever and by whomever committed, can never be justified in any
instance, including as a means to promote and protect human rights,
Conscious of the increasing importance of the role played by the United Nations in combating terrorism,
Bearing in mind that the most essential and basic human right is the right to life,
Bearing in mind also that terrorism in many cases poses a severe challenge to democracy, civil society and the rule of law,
Bearing in mind further that terrorism creates an environment that destroys the freedom from fear of the people."[70]
- What becomes apparent from any reading of the foregoing statements by the General Assembly and Commission are two common themes.
First, terrorism is seen as a threat to peace and security, the maintenance of which is a priority for the United Nations and the
membership of States.[71]
Second, it is also seen as a threat to human rights, through the impact it has upon its physical targets. Notably, however, paragraph
4 of the Resolution mandates that counter-terrorist measures must be taken:
"...in accordance with relevant provisions of international law, including international human rights standards..."
- What is notable about these statements and their utility for the purpose of this paper is the fact that they preceded the September
11 attacks and cannot therefore be criticised as being a knee-jerk reaction to that event.
- The question posed at the commencement of this part of the paper was this: can human rights be limited within a free and democratic
society in the pursuit of counter-terrorist endeavours and, if so, to what extent? It has already been concluded that, due to the
limited wording of the International Covenant on Civil and Political Rights, that document does not permit counter-terrorist measures
to limit rights and freedoms except in the very narrow situation of terrorist conduct creating a state of emergency threatening the
life of the nation and, even then, only by way of temporary means and so long as the non-derogable rights are left intact. In legislating
to allow counter-terrorist measures, and thereby potentially limiting civil and political rights, New Zealand may therefore be in
breach of its international obligations under the Covenant. Given, however, that the United Nations Commission on Human Rights has
called for all human rights mechanisms and procedures to address the consequences of terrorist conduct upon human rights standards,
this does not seem to accord with the balance of international movement in the area.
- The issue to consider now is, notwithstanding any potential breach of international human rights obligations, can limitations be justified
within New Zealand domestic law? The answer lies in application of section 5 of the New Zealand Bill of Rights Act 1990 (NZBORA),
which provides:
"Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
- In discussing the application of section 5 of the NZBORA, a number of preliminary points need to be discussed. The wording of the
section discloses four issues.
- First, section 5 allows limits "...as can be demonstrably justified..." in a free and democratic society. The question is: demonstrated
by whom? The short answer is that the onus of proof rests on the party seeking to uphold the limitation.
- Once the complainant of a NZBORA breach has established the existence of a prima facie rights violation, the onus of proving that
the breach is justified under section 5 is placed on the party relying on section 5. This was held to be so by the Supreme Court
of Canada in Re Southam (No 1).[72]
The New Zealand Court of Appeal has taken the same view, stating that it is for the party seeking reliance on s5 to advance the
argument that limits on rights are reasonable.[73]
- In Solicitor-General v Radio New Zealand Ltd, the onus of proof was again said to lie with the party relying on section 5.[74]
The Court added that the standard of proof is the civil standard of the balance of probability but that must be applied rigorously,
consistent with the requirement that the restriction be demonstrably justified.[75]
- In the case of counter-terrorist legislation, that onus will be on the State, more particularly the agency seeking to exercise any
limitation(s) upon rights and freedoms, by representation through the Crown Law Office. The Crown will be called upon to establish
that any such infringement is a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society.
- The point to be made here, taken from the wording of section 5 "...reasonable limits...", is that the limitations must be limitations
and not more than that. This might seem to be a trite observation, but it has never been considered in New Zealand, although there
is law on the point in the Canadian jurisdiction.
- Canadian case law has drawn a distinction between "limits" and "exceptions". In Attorney General of Quebec v Quebec Association of
Protestant School Boards, the rule of non-justifiability was set out.[76]
In that case, section 72 of the Charter of the French Language (Bill 101) restricted the teaching of English. The Supreme Court
held that this restriction amounted to an "exception" to a provision of the Charter of Rights. The Court stated that a prescription
of law cannot create an exception to a provision of the Charter of Rights, nor can it purport to amend any provision thereof. It
held that: if a prescription collides directly with a provision of the Charter so as to negate it in whole, that prescription is
not a "limit" capable of justification.[77]
- The second Canadian case to reflect on this point is Ford v Quebec (Attorney General) where the Supreme Court considered the distinction
between "limits" and "exclusions" in more detail.[78]
The Court held that a restriction that permits no exercise of a right or freedom in its area of potential exercise amounts to an
exclusion of the right or freedom and, consequently, is not justifiable. However, it went on to say that where a restriction permits
a qualified exercise of a right or freedom, this only amounts to a limitation and, consequently, is capable of justification under
section 1 of the Charter.[79]
- Applying this to the present inquiry, any limitation under counter-terrorist legislation must not entirely exclude a right or freedom.
For example, a number of submissions on New Zealand's Terrorism Suppression Bill focussed on the exclusion of any right of appeal
or review from a designation by the State of a person or group as a "terrorist" or "terrorist group" under clause 17 of Bill 121/1.[80]
It is posited, albeit without providing a detailed discussion on the point, that such an exclusion would not satisfy the section
5 test, whereas a limited right of appeal or review could at least pass this stage of the test and move to the substantive question
of whether or not such a limitation is reasonable.
- The wording of section 5 clearly requires any limitation to be one "prescribed by law". This expression was considered by the European
Court of Human Rights in the Sunday Times Case in which the Court concluded that two requirements flowed from the expression:
"(a) the law must be adequately accessible so that the citizen has an adequate indication of how "the law" limits his or her rights;
and
(b) the law must be formulated with sufficient precision so that the citizen can regulate his or her conduct."[81]
- The Sunday Times Case requirements were accepted and applied in New Zealand by the Indecent Publications Tribunal in Re "Penthouse
(US)" Vol 19 No 5 and others.[82]
The test was later reaffirmed by the European Court in the case of Silver v UK.[83]
Putting this test into a practical perspective, Le Dain J of the Supreme Court of Canada said that this included statutes and regulations
(as well as anything that results by necessary implication from the terms of a statute or regulation or from its operating requirements)
as well as common law rules.[84]
This consideration of the expression and test was approved by the NZCA in MOT v Noort; Police v Curran.[85]
- In Canada it has been held also that the "operating requirements" of a statute amount to a prescription by law. The term "operating
requirements" refers to those limits on rights which are not expressed in a statute, nor implied, but which simply arise as a result
of the practical operation of the enactment in the manner in which it was designed to operate. In R v Therens, a case concerning
blood/breath alcohol legislation, it was held that the operating requirements of the Canadian statute meant that full opportunity
to consult and instruct a lawyer was not possible, and that telephone access within a reasonable time only could be permitted.[86]
Within a very similar context, the Court of Appeal in MOT v Noort; Police v Curran adopted this approach, holding that limits on
rights resulting from the "operating requirements" of the Land Transport Act 1958 would constitute limits which were "prescribed
by law". The Court also noted that the concept of discerning "operating requirements" is to be seen in New Zealand as part of the
interpretation process.[87]
- Application of the foregoing to counter-terrorist measures provided for within the framework of legislation does not, therefore, seem
to pose any problem. Notably, however, the second limb of the Sunday Times test (regarding the precise formulation of any limitation)
has been applied to strike down powers or discretions that are so broad as to be considered "unfettered". In Ontario Film and Video
Appreciation Society the Ontario Court of Appeal held that a statute authorising film censorship failed to meet the requirements
of a limitation "prescribed by law" because the censor board was given an unfettered discretion to ban or cut films.[88]
This will be an aspect of counter-terrorist measures that will require cautious monitoring, particularly in the context of designations
under clause 17.[89]
- Finally, once the preliminaries discussed are disposed of, the limitation in question must be shown to satisfy what is the very substance
of section 5: that it is "...demonstrably justified in a free and democratic society".
- In order to determine reasonableness, Canadian and New Zealand Courts have both developed sets of principles. The relevant authorities
were discussed by a Full Court of the High Court in Solicitor-General v Radio New Zealand Ltd.[90]
It was stated there that the starting point in applying the substantive test is the Supreme Court case of R v Oakes, where a detailed
test was set out by the Court.[91]
In an early formulation of the applicable test, the Court said that a limit will be reasonable and demonstrably justified in a free
and democratic society if:
"(i) the objective sought to be achieved by the limitation at hand must relate to concerns which are pressing and substantial in
a free and democratic society; and
(ii) the means utilised must be proportional or appropriate to the objective. In this connection there are three aspects:
- the limiting measures must be carefully designed or rationally connected to the objective;
- they must impair the right or freedom as little as possible;
- their effects must not so severely trench on individual or group rights that the objective of the limitation, albeit important, is
nevertheless outweighed by the restriction of the right or freedom concerned."[92]
- The New Zealand High Court in SG v Radio NZ Ltd rephrased the test slightly as follows, although this clearly follows the two-stage
approach adopted by the Supreme Court:
"...To establish that the limit is both reasonable and demonstrably justified in a free and a democratic society the law creating
the limit on the right of freedom must have an objective of sufficient importance to warrant overriding a constitutionally protected
right or freedom.
...The means chosen by the law to achieve the objective must be proportional and appropriate to be objective.
...To
meet the requirement of the proportionality test there are three components. First, the limiting measures or the law must be designed
to achieve the objective not being arbitrary, unfair or based on irrational considerations. This is described as being rationally
connected to the objective. Second, the measures or the law should impair as little as possible the right or freedom. Third, there
must be a proportionality between the effects of the measures or the law responsible for limiting the right or freedom and the objective.
The law which restricts the right must not be so severe or so broad in application as to outweigh the objective."[93]
- Can counter-terrorist measures, if prescribed by law in a fashion that creates a limitation upon (rather than an exclusion of) rights,
satisfy the substantive requirement of reasonableness in a free and democratic society? The starting point is to acknowledge that
there has been no case law on point. A further point to make is that, while counter-terrorist legislation currently exists in the
form of the International Terrorist (Emergency Powers) Act 1987, the majority of measures within New Zealand are yet to come into
force, with the Terrorist Suppression Bill not yet having received its second reading through Parliament.[94]
- In looking at this first limb of the Oakes and Radio New Zealand test, the question to consider is whether the objective of counter-terrorism
is one that is pressing and substantial in a free and democratic society. Logically, one would tend to say "yes", although Benjamin
Franklin might not agree:
"Those who would give up a little freedom for a little security will end up with neither".[95]
- Having regard to the foregoing discussion of statements by the UN General Assembly and Commission on Human Rights, its seems clear
to the writer that counter-terrorism is an objective, the pursuance of which is pressing and substantial in a free and democratic
society. As discussed, terrorism is seen as a threat to peace and security and to human rights themselves. The General Assembly
and Commission have each referred to terrorism as something that both directly impacts upon human rights, in particular the right
to life, and at the same time destroys various further rights (including liberty and security) by creating an environment of fear.[96]
Logically, countering the perpetrator of such damage (terrorism) must, with the aim of preventing further human rights abuses caused
by it, be a pressing and substantial objective. As circular as the argument might appear, limitations upon human rights in an endeavour
to ultimately preserve human rights must satisfy this first limb of the substantive test.
- While there is no decision upon which to rely, some useful analogies can be made. The combating of the road toll (necessarily impacting
upon the right to life, as does terrorism) was discussed as being an important democratic objective in MOT v Noort; Police v Curran.[97]
A very useful further analogy can be found in the context of military discipline.
- In most western democratic societies where the rule of law is recognised, the armed forces of those societies are governed by internal
disciplinary rules and procedures that civilian members of society are not subject to. In the case of New Zealand, this is through
the Armed Forces Discipline Act 1971 and Defence Force Orders (Discipline). The idea is that an Armed Force must be disciplined
so that it may execute its ultimate function of combat. At the same time, it must also be disciplined to maintain order within the
service so that it does not abuse its power and threaten the very society it is designed to protect. On that basis, various additional
rules apply to soldiers, some of which are said to infringe civil and political rights.
- Is the objective of maintaining a disciplined armed force one that is sufficiently pressing and substantial in a free and democratic
society? The military argues yes: in that the limitations that such the military disciplinary system imposes on its personnel are
designed to maintain discipline and, with it, the operational effectiveness of the military. The Supreme Court of Canada has agreed.
For example, in MacKay v Rippon, Cattanach J commented:
"Without a code of service discipline the armed forces could not discharge the function for which they were created. In all likelihood
those who join the armed forces do so in time of war from motives of patriotism and in time of peace against the eventuality of war.
To function efficiently as a force there must be prompt obedience to all lawful orders of superiors, concern, support for and concentrated
action with their comrades and a reverence for and a pride in the traditions of the service. All members embark upon rigorous training
to fit themselves physically and mentally for the fulfilment of the role they have chosen and paramount in that there must be rigid
adherence to discipline."[98]
- Precedent exists, therefore, for the idea that at least some abrogation of rights can be tolerated in order to achieve important democratic
objectives such as military discipline. It is not a large nor illogical step to conclude that a similar approach would be taken
when considering the objective of countering terrorism. The author therefore concludes that the first limb of the Oakes test does
not appear to pose any real difficulties.
- The second limb of the test requires the particular means used to implement the objective in question to be proportional to the objective
(the idea of not using a sledge hammer to squash an ant). As set out in the Radio New Zealand case, three components exist in determining
whether the means chosen by the law to achieve an objective are proportional and appropriate to the objective:[99]
- The limiting measures or the law must be designed to achieve the objective not being arbitrary, unfair or based on irrational considerations.
In other words, the means must be rationally connected to the objective.
- The measures or the law should impair as little as possible the right or freedom.
- There must be a proportionality between the effects of the measures or the law responsible for limiting the right or freedom and
the objective - i.e., the law which restricts the right must not be so severe or so broad in application as to outweigh the objective.
- It is within the second limb of the test that the difficulty lies in setting down any broad "defence" for counter-terrorism. Much
will depend on the specific limitation in question, how it is put in place, and the particular circumstances of the case. This creates
a limitation for this paper since that level of detail cannot be achieved, against the background of the foregoing discussion.
- Combating terrorism exposes a clash of wills, involving complex legal, practical and policy issues. What appears to be clear is that
the measures implemented to defeat terrorism are likely to strike against human rights, there being various issues of concern raised
throughout various jurisdictions.
- Equally clear is the fact that terrorism itself presents an assault against human rights, peace and security. The international community
has collectively condemned terrorism and called for steps to be taken against terrorism for the purpose of maintaining peace and
security and preventing further abuses of human rights by terrorists. As such, counter-terrorism must be seen as a substantial objective
for any society. Accordingly, New Zealand and Canadian law provide the means by which such measures may justifiably limit civil
and political rights. What remains to be seen, however, is whether the measures are adopted and implemented in a proportionate manner.
[1]
United Nations Office for Drug Control and Crime Prevention, "UN Action Against Terrorism",
<http://odccp.org/terrorism.html>
, at 19/06/02. The definition of terrorism, as adopted and used by the UN Office for Drug Control and Crime Prevention, is "An
anxiety-inspiring method of repeated violent action, employed by a (semi-) clandestine individual, group or state actors, for idiosyncratic,
criminal or political reasons, whereby - in contrast to assassination - the direct targets of violence are not the main targets.
The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or
symbolic targets) from a target population, and serve as message generators. Threat and violence-based communication processes between
terrorist (organisation), (imperilled) victims, and main targets are used to manipulate the main target (audience(s)), turning it
into a target of terror, a target of demands, or a target of attention, depending on what the intimidation, coercion, or propaganda
is primarily sought".
[2]
The United Nations Office for Drug Control and Crime Prevention (ODCCP) reports that Arab States such as Libya, Syria and
Iran have all campaigned for a definition that excludes acts of "freedom fighters" from the international definition of terrorism,
by employing the argument that a justified goal may be pursued by any available means: ibid.
[3]
This is maintained by the United States Federal Bureau of Investigation and may be accessed by internet:
<http://www.fbi.gov/mostwant/terrorists/fugitives.htm>
.
[4]
The Observer, 30 September 2001, quote contained within Submissions of the Indonesian Human Rights Committee to the Foreign
Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression Bill, TERRO/88, Parliamentary Library,
Wellington.
[5]
As at 1 September 2002. The UN Conventions on terrorism are (in alphabetical order): Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Aviation 1971 (Australia signed 12 October 1972 and ratified 12 July 1973, New Zealand signed 26
September 1972 and ratified 12 February 1974); Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation
1988 (Australia and New Zealand have both signed and ratified); Convention for the Suppression of Unlawful Seizure of Aircraft 1970
(Australia signed 15 June 1971 and ratified 9 November 1972, New Zealand signed 15 September 1971 and ratified 12 February 1974);
Convention on Offences and Certain other Acts Committed on Board Aircraft 1963 (Australia signed 22 June 1970 and ratified 20 September
1970, New Zealand signed 12 February 1974 and ratified 13 May 1974); Convention on the Marking of Plastic Explosives for the Purpose
of Identification 1991 (Australia and New Zealand have neither signed, nor ratified); Convention on the Physical Protection of Nuclear
Material 1980 (Australia signed 22 February 1984 and ratified 22 September 1987, New Zealand has neither signed, nor ratified); Convention
on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents 1973 (Australia
signed 30 December 1974 and ratified 20 June 1977, New Zealand joined by accession on 6 December 1988); International Convention
Against the Taking of Hostages 1979 (Australia joined by accession on 21 May 1990, New Zealand signed 24 December 1980 and ratified
12 November 1985); International Convention for the Suppression of Terrorist Bombing 1997 (Australia and New Zealand have neither
signed, nor ratified); International Convention for the Suppression of the Financing of Terrorism 1999 (Australia signed 15 October
2001, but has not yet ratified, New Zealand signed 7 September 2000, but has not yet ratified); Protocol for the Suppression of Unlawful
Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988 (Australia and New Zealand both signed and ratified);
and Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation 1988 (Australia joined
by accession on 23 October 1990, New Zealand signed 11 April 1989 and ratified 2 August 1999).
[6]
As reflected in both the preamble and article 1 of the Charter of the United Nations. The United Nations Security Council
has the specific mandate, through article 24 of the Charter, to do so.
[7]
The phenomenon of terrorism became an international concern in the 1960s when a series of aircraft hijackings hit the headlines.
Additionally, when the 1972 Munich Olympic Games were disrupted by a Palestinian group's attempt to take Israeli athletes hostage,
the then Secretary-General of the UN, Kurt Waldheim, asked that the issue be placed on the General Assembly's agenda. In the heated
debate that followed, the Assembly assigned the issue to the its Legal Committee, which subsequently proposed the various conventions
on terrorism that have been outlined above, n 7.
[8]
United Nations General Assembly Resolution 49/60, in which the General Assembly adopted the "Measures to Eliminate International
Terrorism", Annex to A/RES/51/210, 9 December 1994.
[9]
Ibid, as is evident through its Preamble.
[10]
Ibid, paragraph 2.
[11]
Ibid, paragraph 1.
[12]
Ibid, paragraph 6.
[13]
Ibid, paragraph 4.
[14]
Established under General Assembly Resolution 51/210 (1996).
[15]
Ibid, paragraph 9.
[16]
India's Draft Comprehensive Convention on International Terrorism (2000). Due to the lack of unanimity on various issues,
and the range of issues involved, the Committee concluded that finalising a comprehensive international treaty on terrorism would
depend primarily on agreement on who would be entitled to exclusion from the treaty's scope, and on what grounds. Otherwise, the
majority of the 27 articles of the Draft Convention were preliminarily agreed upon at the Committee's last two sessions. See Ad
Hoc Committee Established by General Assembly Resolution 51/210, Report of the Ad Hoc Committee Established by General Assembly Resolution
51/210 on a Draft Comprehensive Convention on International Terrorism, A/AC.252/2002/CPR.1 and Add.1, 1 February 2002.
[17]
United Nations Security Council Resolution 1368, S/RES/1368, 12 September 2001.
[18]
Ibid, paragraph 3.
[19]
United Nations Security Council Resolution 1373, S/RES/1373, 28 September 2001. Within paragraph 1 of the Resolution, the
Security Council requires members of the United Nations to:
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize
the willful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with
the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;
(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist
acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by
such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds
derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;
and
(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or
economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit
or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly
or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons.
[20]
Richard Rowe, "Key Developments: Year of International Law in Review", a paper presented at the 10th Annual Meeting of the
Australian & New Zealand Society of International Law, New Challenges and New States: What Role for International Law?, 15 June
2002, Australian National University, Canberra. Richard Rowe works in the International Organisations and Legal Division of the
Australian Department of Foreign Affairs and Trade. He was the Australian representative and Vice-Chairman of the Ad Hoc Committee
Established by General Assembly Resolution 51/210 during its Sixth Session, which followed the September 11 attacks.
[21]
As a decision made under Chapter VII of the United Nations Charter, compliance with the latter Resolution is mandatory under
international law: see Article 25 of the United Nations Charter.
[22]
For example: in New Zealand, significant amendments were made to the Terrorism Suppression Bill (Bill 121/1 of the Forty-Sixth
Parliament of New Zealand), which had earlier been introduced but lacked provisions dealing with the obligations under Resolution
1373; Australia has introduced a package of legislation, at the centre of which lies the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 (for further details of the legislative package, see the web site of Amesty International Australia
<http://www.amnesty.org.au/airesources/factsheet-02-06-16.html>
at 30 October 2002); Canada passed the Anti-Terrorism Act at the end of 2001; and the United Kingdom adopted the Anti-terrorism,
Crime and Security Act 2001.
[23]
See Submissions of the Canterbury Council of Civil Liberties to the Foreign Affairs, Defence and Trade Committee on the Terrorism
<Bombings and Finance> Suppression Bill, TERRO/45, Parliamentary Library, Wellington.
[24]
Arena website, "Canterbury Council of Civil Liberties Responds to Terrorism Bill", Republished (with permission) from the Council's
Newsletter (No 1, April 2002),
<http://arena.org.nz/tercivlb.htm>
.
[25]
Media Release, "New Document Reveals what the Government Really Wanted in the Terrorism Suppression Bill", 15 May 2002
<http://arena.org.nz/gateumrj.htm>
.
[26]
The Terrorism Suppression Bill definition of a "terrorist act" falls into three categories. First, conduct that constitutes
an offence under any of the 12 terrorism conventions (clauses 4(1) and 5(1)(b)), e.g., the funding of terrorist organisations. Secondly,
any conduct that, during armed conflict, is intended to cause death or serious injury to non-military persons with the aim of compelling
a government or organisation to do or abstaining from doing anything (clauses 4(1) and 5(1)(c)), e.g., "human shields". Finally,
conduct that is intended to advance an ideological, political, or religious cause AND intended to induce terror in a civilian population;
or compel a Government/organisation to do or abstain from doing something AND intended to cause death or serious injury; or a serious
risk to the health or safety of a population; or destruction or serious damage to property of significant value or importance: clause
5. Most of the international solidarity groups that have been active in New Zealand in recent years, says David Small, would be
outlawed under the latter broad definition - pointing to Philippines Solidarity, Nicaragua Must Survive, Kanak Solidarity, the anti-apartheid
movement, East Timor Independence Centre as well as fundraising events for Bougainville, West Papua, Native Americans, Chile, Eritrea,
and El Salvador.
[27]
Electronic Frontiers Australia Inc. Media Release, "Senate Rejects Email Snooping Law - Victory For Online Privacy", 28 June
2002. See also: Electronic Frontiers Australia Inc. (EFA) Campaign Action Alert,
<http://www.efa.org.au/Campaigns/alert200205.html>
at 31 May 2002; EFA analysis of the Telecommunications Interception Legislation Amendment Bill and its effect on existing privacy protections
<http://www.efa.org.au/Issues/Privacy/tia_bill2002.html>
EFA's On-line Surveillance and Interception Laws page
<http://www.efa.org.au/Issues/Privacy/surveillance.html#laws>
and Senate Hansard,
<http://www.aph.gov.au/hansard/senate/dailys/ds270602.pdf>
at
[27]
June 2002.
[28]
The ruling was only released in August 2002 with a follow up ruling of the Court: see Associated Press, "U.S. court orders
rules on wiretap modified",
<http://etaiwannews.com/World/2002/08/24/1030154431.htm>
at 24 August 2002.
[29]
Justice Department spokeswoman Barbara Comstock said the Court incorrectly interpreted the Patriot Act, and that the effect
of that incorrect interpretation was to limit the kind of coordination that the Government saw as being very important to counter-terrorism.
The Patriot Act, passed late in 2001, changed the surveillance law to permit its use when collecting information about foreign spies
or terrorists is "a significant purpose," rather than "the purpose," of such an investigation. Critics at the time said they feared
government might use the change as a loophole to employ espionage wiretaps in common criminal investigations.
[30]
See, for example, Submissions of the Privacy Commission to the Foreign Affairs, Defence and Trade Committee on the Terrorism
<Bombings and Finance> Suppression Bill, TERRO/44W, Parliamentary Library, Wellington.
[31]
CBC News Online, "What does the anti-terrorism bill propose to do?",
<http://cbc.ca/news/indepth/us_strikingback/backgrounders/canada_antiterrorlaw.html>
at 1 November 2001.
[32]
Darrin Farrant, "Anti-terrorist or anti-democratic?",
<http://arena.org.nz/teroz.htm>
at 2 May 2002.
[33]
Ibid.
[34]
The allegations have been the subject of investigation by a Special Representative of the United Nations, Hina Jilani, who
conducted a six-day visit to Guatemala that ended on 1 June 2002.
[35]
See The Guardian "Calls Mount for return of Camp X-Ray Britons" (Sarah Left reporting), 25 February 2002, and "Rumsfeld attacked
over Cuba prisoners" (Richard Norton-Taylor reporting), 25 February 2002. See also Barrett, Justice R.I. "Current Issues: Camp X-Ray"
(2002) Vol 76 Australian Law Journal 408.
[36]
The White House Office of the Press Secretary, "Fact Sheet: White House on Status of Detainees at Guantanamo: Says treatment
consistent with principles of Geneva Convention, 7 February 2002. United States Policy on the status of detainees in Guantanamo,
Cuba is set out within the latter document as follows: "The United States is treating and will continue to treat all of the individuals
detained at Guantanamo humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with
the principles of the Third Geneva Convention of 1949; the President has determined that the Geneva Convention applies to the Taliban
detainees, but not to the al-Qaida detainees; al-Qaida is not a state party to the Geneva Convention (as a foreign terrorist group,
its members are not entitled to prisoner of war status); although the US has never recognised the Taliban as the legitimate Afghan
government, Afghanistan is a party to the Convention, and the President has determined that the Taliban are covered by the Convention;
under the terms of the Geneva Convention, however, the Taliban detainees do not qualify as POWs; even though the detainees are not
entitled to POW privileges, they will be provided many POW privileges as a matter of policy".
[37]
CBC News Online, "Muslims, Arabs denounce Canada's anti-terror bill",
<http://cbc.ca/cgi-bin/templates/view.cgi?/news/2001/11/06/terror_bill011116>
at 16 November 2001.
[38]
See Public Submissions to the Foreign Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression
Bill, 2002, Parliamentary Library.
[39]
Razvi, Justice R.A. (High Court of Sindh, Pakistan), "Can Terrorism be Countered Effectively without Compromising Human Rights?",
a paper presented at the International Bar Association Human Rights Institute Conference Access to Justice and Fundamental Rights,
Lahore, Pakistan, 30 - 31 March 1998.
[40]
Shah, N.H., (former Chief Justice of Pakistan), "Can Terrorism be Countered Effectively without Compromising Human Rights?",
a paper presented at the International Bar Association Human Rights Institute Conference Access to Justice and Fundamental Rights,
Lahore, Pakistan, 30 - 31 March 1998.
[41]
Associated Press, "Top U.N. human rights official worries China using 'war on terrorism' to crush dissent", Beijing, <http://famulus.msnbc.com/FamulusIntl/ap08-20-013345.asp?reg=PACRIM at 20 August 2002.
[42]
The Christchurch Press, "Teenager denied passport on terrorism fear", 26 August 2002, p.B1.
[43]
Address of the UN Secretary General to the General Assembly, 18 November 1999.
[44]
Above n 41, p.11.
[45]
A point made by Treasa Dunworth in her address "New Zealand's Legislative Responses to September 11", a paper presented at
the 10th Annual Meeting of the Australian & New Zealand Society of International Law, New Challenges and New States: What Role
for International Law?, 16 June 2002, Australian National University, Canberra.
[46]
As recognised within the preamble of the International Covenant on Civil and Political Rights: see discussion below.
[47]
An example made in the New Zealand Department of Justice report, A Bill of Rights for New Zealand - A White Paper, Government
Printer, Wellington, 1985, 71.
[48]
More specifically the right to life (as reflected in article 6 of the United Nations Convention on the Rights of the Child,
CRC); and the requirement to give effect to the best interests of the child (article 3 of the CRC).
[49]
See article 18(1) of the International Covenant on Civil and Political Rights; and section 13 of the New Zealand Bill of Rights
Act 1990.
[50]
Which is implemented into New Zealand's domestic law through the New Zealand Bill of Rights Act 1990.
[51]
Similarly, article 1 of the Canadian Charter of Rights and Freedoms, upon which New Zealand's section 5 NZBORA is based, provides
that "[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and democratic society".
[52]
Article 4(1) contains the substance of the exception, stating that "In time of public emergency which threatens the life of
the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating
from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely
on the ground of race, colour, sex, language, religion or social origin."
[53]
Article 4(2) qualifies the ability to derogate by stating that "No derogation from articles 6, 7, 8 (paragraphs I and 2), 11,
15, 16 and 18 may be made under this provision" - those articles relating to the right to life (article 6), freedom from torture
or to cruel, inhuman or degrading treatment or punishment (article 7), the prohibition of slavery and servitude (article 8(1) and
(2)), freedom from imprisonment for failure to fulfil a contract, freedom from retrospective penalties (article 15), the right to
be recognised as a person before the law (article 16) and freedom of thought, conscience and religion (article 18).
[54]
Article 4(3) of the Covenant.
[55]
General Comments are intended to be used by States party as a tool for interpretation and implementation of rights commented
upon.
[56]
Derogation of Rights (Art. 4), CCPR General Comment 5 (31/07/81).
[57]
The term "state of emergency", rather than "public emergency" is that adopted by the Human Rights Committee within its General
Comment 5 (ibid, paragraph 2). It does not, however, reflect the actual wording or article 4(1), which refers to "public emergency"
only. This is an important distinction, since (in the author's view) the latter phrase has a wider meaning than "state of emergency".
Ultimately, it should be noted that General Comments of the Human Rights Committee are made by the Committee for the purpose of
assisting interpretation and application of ICCPR provisions and are without legal standing. While they certainly might indicate
the way in which the Committee might address a complaint presented to it, General Comments do not function as a binding interpretation
or direction. The making of General Comments is not even, in fact, set out within the ICCPR or its optional protocols as part of
the Human Rights Committee's functions.
[58]
Prohibited by article 7 of the ICCPR, this being non-derogable because of the limitation contained within article 4(2).
[59]
Above n 57, paragraph 3.
[60]
See Commission on Human Rights Resolution 1999/27, "Human Rights and Terrorism", E/CN.4/RES/1999/27, paragraph 9, which states
that the Commission "Urges all relevant human rights mechanisms and procedures, as appropriate, to address the consequences of the
acts, methods and practices of terrorist groups".
[61]
J Evans, Statutory Interpretation. Problems of communication ( Auckland, Oxford University Press, 1989), p2.
[62]
[1981] 1 NZLR 222 at 229.
[63]
United Nations General Assembly Resolution 50/6 "Declaration on the Occasion of the Fiftieth Anniversary of the United Nations",
A/RES/50/6, 24 October 1995.
[64]
Ibid, paragraph 1(4).
[65]
United Nations General Assembly Resolution 54/164 "Human Rights and Terrorism", A/RES/54/164, 24 February 2000. See also the
recent resolution of the United Nations Economic and Social Council's Commission on Human Rights, "Human Rights and Terrorism",
E/CN.4/RES/2001/37, 23 April 2001.
[66]
As adopted at the World Conference on Human Rights of 1993 through the Vienna Declaration and Programme of Action of 25 June
1993.
[67]
See the preamble, which reads (in part):
"Seriously concerned about the gross violations of human rights perpetrated by terrorist
groups,
Profoundly deploring the increasing number of innocent persons, including women, children and the elderly, killed, massacred
and maimed by terrorists in indiscriminate and random acts of violence and terror, which cannot be justified under any circumstances"
[68]
Paragraph 2.
[69]
Ibid, paragraph 3.
[70]
Above n 66. The Resolution itself contained nine operative paragraphs, through which the General Assembly (inter alia) called
upon States to take all necessary and effective measures to prevent, combat and eliminate terrorism in all its forms and manifestations,
wherever and by whomever committed (paragraph 4).
[71]
Currently being 189, although Switzerland has now formally applied to become a member of the United Nations - its application
is expected to be considered by the United Nations General Assembly in September 2002. Assuming that it does become the 190th State
member of the organisation, this will mean that all States, other than the Vatican, will be represented within the United Nations.
[72]
[1983] 41 OR (2d) 113, 124.
[73]
MOT v Noort; Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260, 271 and 283.
[74]
[1993] NZHC 423; [1994] 1 NZLR 48. Note that the position regarding the standard of proof is not as clear in Canada: see KIS Films Inc v Vancouver (1992) CRR (2d) 98, at pp 113-114.
[75]
Ibid, 61.
[76]
[1984] 2 SCR 66.
[77]
Ibid, 87.
[78]
[1988] 2 SCR 712.
[79]
Ibid, 774.
[80]
See, for example, Submissions by Human Rights Commission to the Foreign Affairs, Defence and Trade Committee on the Terrorism
<Bombings and Finance> Suppression Bill, TERRO/132, Parliamentary Library.
[81]
[1979] ECHR 1; (1978) 58 ILR 491, 524-527.
[82]
1 NZBORR 429.
[83]
[1983] ECHR 5; [1983] 5 EHRR 347.
[84]
R v Thomsen (1988) 63 CR (3d) 1, 10. Regulations were also held to be satisfactory by the SCC in R v Therens [1984] INSC 153; [1985] 1 SCR 613. Application of the Sunday Times test can be seen in Re "Penthouse (US)" Vol 19 No 5 and others, above n 83, where the Indecent Publications
Tribunal of New Zealand held that policies based on statutory criteria satisfy the test. The European Court in Silver v UK, above
n 84, found that while the Prison Act and Prison Rules met the criterion of adequate accessibility, unpublished orders and instructions
did not.
[85]
[1992] NZCA 51; [1992] 3 NZLR 260, 272 and 283.
[86]
[1984] INSC 153; [1985] 1 SCR 613.
[87]
Above n 85, 283 (per Richardson J).
[88]
[1984] 45 OR (2d) 80.
[89]
See, for example, Submissions by the Canterbury Council for Civil Liberties to the Foreign Affairs, Defence and Trade Committee
on the Terrorism <Bombings and Finance> Suppression Bill, TERRO/45, Parliamentary Library.
[90]
[1993] NZHC 423; [1994] 1 NZLR 48 - the Full Court being a two-member High Court of the Criminal Division, in this case Eichelbaum CJ and Greig J.
[91]
(1986) 26 DLR (4th) 200.
[92]
That decision was later affirmed and followed by the Supreme Court of Canada in Irwin Toy Ltd v Quebec (Attorney-General)
(1989) 58 DLR (4th) 577 and Re A Reference re Public Service Employee Relations Act [1987] 1 SCR 313, 373-374. The latter case was referred to with approval by the NZCA in MOT v Noort; Police v Curran, above n 86, 283. Cases have,
however, moved away from requiring limitations to impair rights "as little as possible" (requirement (2) of the proportionality test)
to a more flexible test of "as little as reasonably possible".
[93]
Above n 91, 60-61. This was subsequently cited with approval in Duff v Communicado Ltd [1996] 2 NZLR 89. Note that in MOT v Noort; Police v Curran, above n 86, (which pre-dates the latter case law) Richardson J said at p.283: "It is
worth emphasising too that in principle an abridging inquiry under s 5 will properly involve consideration of all economic, administrative
and social implications. In the end it is a matter of weighing (1) the significance in the particular case of the values underlying
the Bill of Rights; (2) the importance in the public interest of the intrusion on the particular right protected by the Bill of Rights;
(3) the limit sought to be placed on the application of the Bill provision in the particular case; and (4) the effectiveness of the
intrusion in protecting the interests put forward to justify those limits."
[94]
The Foreign Affairs, Defence and Trade Select Committee presented its final report to Parliament on March 2002. Due to the
early elections of July 2002, however, Parliament closed early and has not yet had an opportunity to consider the Bill further.
[95]
Action Research and Education Network of Aotearoa (ARENA):
<http://www.arena.org.nz/canbil.htm>
. Arena is a network of individuals and organisations which holds itself out as being committed to resist globalisation in all
its forms. "Arena" stands for an alternative development model based on self-determination, social justice, genuine people-centred
development and environmental sustainability: see Arena home page
<http://www.arena.org.nz>
.
[96]
See above discussion within Part IV(B) of this article. See, in particular United Nations General Assembly Resolutions 50/6
(above n 64) and 54/164 (above n 66); the Vienna Declaration and Programme of Action (above n 67); and United Nations Commission
on Human Rights Resolution 1999/27 (above n 66).
[97]
Above n 86, 274.
[98]
[1978] 1 FC 233, 235-236. This was quoted with approval by Lamer CJ in Genereux v R 1 SCR 259, 292.
[99]
Above n 91, 60-61. This was subsequently cited with approval in Duff v Communicado Ltd [1996] 2 NZLR 89. Note that in MOT v Noort; Police v Curran, above n 86, (which pre-dates the latter case law) Richardson J said at p.283: "It is
worth emphasising too that in principle an abridging inquiry under s 5 will properly involve consideration of all economic, administrative
and social implications. In the end it is a matter of weighing (1) the significance in the particular case of the values underlying
the Bill of Rights; (2) the importance in the public interest of the intrusion on the particular right protected by the Bill of Rights;
(3) the limit sought to be placed on the application of the Bill provision in the particular case; and (4) the effectiveness of the
intrusion in protecting the interests put forward to justify those limits."
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