International Association of Prosecutors
8th Annual Conference
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TERRORISM AND THE
RULE OF LAW
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Nicholas
Cowdery AM QC
President,
International Association of Prosecutors
Director of Public Prosecutions, NSW,
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“Sooner or later one has to take
sides.
If one is to remain human.”
Thomas Fowler’s Vietnamese colleague,
Mr Heng, in “The Quiet American” (Graham Green)
INTRODUCTION
When I was at school, history was something that we learned from books. Teachers sought to interpret it – to flesh out the bare chronology of events with analysis of the characters and motives of the actors – to identify connections between events – to explain why things happened as they did.
I did not realise it then, but as I have lived longer I have learnt that, in fact, we are all living in history. The present of today is the past of tomorrow. The difference between learning about and living in history is that we all have the potential to influence events and thereby to affect, and therefore to make, the history of the future. However, explaining why events occur can still be problematic.
I believe that we all have an obligation to make our history an honourable one. That means action on our part, now.
History often unfolds in a leisurely fashion as routine events take their course. Sometimes, however, it is made suddenly and unexpectedly. How we react to such events shapes our present, of course – but it also shapes our future. Even more importantly than determining how we will be judged by posterity, we thereby incur a debt to our children, from whom the future is borrowed.
In this paper I am addressing the issue of terrorism and a few of the ways in which we have responded to it. My submission is that we have done violence to the rule of law, which must be remedied.
In the course of this paper I shall highlight particularly the difference between the war on terrorism and other wars; the leadership role played by the western democracies in the past in upholding the rule of law; and the example that they are now setting for countries where the rule of law has a much more fragile grasp and what that may mean for the future.
On
Some Americans asked: “What have we done to deserve this?” The answer, of course, was “nothing”. No community could do anything to deserve an attack like that.
They then asked, however: “What can we do
to fix it?” That was the wrong question. Of course there were things to be done
to heal the community and repair the physical damage; but it was wrong to
suppose that the wider damage could be undone or the broader situation “fixed”
by any immediate and direct action. A new situation had been created and the
responses to it had to be got right. It is sometimes said that on that day “the
world changed” – but however cataclysmic the events were for the
Of course, explosive attacks on civil
society are not new, even in recent history. The Atlanta Olympics and
Conduct of this kind is criminal in nature.
Often the perpetrators die; but there is no shortage of appropriate offences or
of legal avenues for the prosecution of the survivors. The normal response of
the lawful authorities is to investigate, identify suspects, prosecute and
punish. That has been the course in most of the
Instead of following the criminal justice path, the war paradigm was invoked – the war on terrorism– and it has continued. It is, however, difficult to control and direct. As will be seen, it has enabled the rule of law to be bypassed in a number of respects. By definition, such a war may have no end and the measures introduced along the way may be with us forever.
Although war was declared on an abstract noun, real places and real people were attacked, including sovereign states. On the military front Afghanistan was overcome and a new government installed; Iraq was later invaded and occupied.
Democracy, human rights, the rule of law:
three expressions that sit together like air, earth and water. They are
elemental for all right-thinking people. They are inter-dependant. As Lord Woolf, Lord Chief Justice of England and Wales, has said: “Human
rights come with democracy, whether the government wants them or not”.
Democracy is a given. Human rights come with it and in the words of the Vienna Declaration of 1993 they are universal, indivisible, interdependent and interrelated and should be promoted in a fair and equitable manner.
In Ex parte Milligan, 71 U.S. 2
(1866) Justice Davis, writing for the Court, said: “No graver question was
ever considered by this court, nor none which more nearly concerns the rights
of the whole people… By the protection of the law human rights are secured;
withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people”.
Democracy and human rights cannot be enjoyed without the rule of law. The Preamble to the Universal Declaration of Human Rights (1948) states that:
“it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
So what is the rule of law? How does it operate? Why is it important? How may it protect human rights?
It does not mean:
- rule by law: that is, so long as there is a law on the subject the rule of law is
operating;
- the law of the ruler;
- “law and order”;
- the law of rules; or even
- the rule of the lawyer.
A clue to its meaning would be given by the addition of one word to the phrase: “the just rule of law”. Justice requires the importation of principles that arise under other labels, such as peace, freedom, democracy and fairness. Such principles are echoed in the rule of law.
There are two principal features of the rule of law.
· The people (including the government) should be ruled by the law and obey it.
· The law should be such that the people will be able and willing to be ruled (or guided) by it.
From those features commentators have deduced 12 more particular requirements to be met before it can be said that the rule of law is truly in operation.
1 There must be laws prohibiting and protecting against private violence and coercion, general lawlessness and anarchy.
2 The government must be bound (as far as possible) by the same laws that bind the individual.
3 The law must possess characteristics of certainty, generality and equality. Certainty requires that the law be prospective, open, clear and relatively stable. Laws must be of general application to all subjects. They must apply equally to all.
4 The law must be and remain reasonably in accordance with informed public opinion and general social values and there must be some mechanism (formal or informal) for ensuring that.
5 There must be institutions and procedures that are capable of speedily enforcing the law.
6 There must be effective procedures and institutions to ensure that government action is also in accordance with the law.
7 There must be an independent judiciary, so that it may be relied upon to apply the law.
8 A system of legal representation is required, preferably by an organised and independent legal profession.
9 The principles of “natural justice” (or procedural fairness) must be observed in all hearings.
10 The courts must be accessible, without long delays and high costs.
11 Enforcement of the law must be impartial and honest.
12 There must be an enlightened public opinion – a public spirit or attitude favouring the application of these propositions.
If all these features exist in large part, the climate will exist for the protection and enforcement of human rights – those rights that are enjoyed by humans simply because they are human beings. Those rights are to be found in the great international instruments accepted by the community of nations. That climate will be one of acceptance, observance and incorporation into domestic law of those international standards and their enforcement in everyday life. Those 12 features also provide the internal mechanisms for that enforcement.
Professor Geoffrey de Q Walker wrote in The Rule of Law (Melbourne University Press, 1988) that the rule of law:
“is plainly the essential prerequisite of our whole legal,
constitutional and perhaps social order … The rule of law is not a complete
formula for the good society, but there can be no good society without it.”
An enlightened citizenry might well demand of its leaders measured and lawful responses to common threats. Emergencies pass – urgent, short term measures must be dismantled and longer term responses must be found that are unobjectionable in principle.
The world has responded in that way to many great challenges. There is a long history of legal responses to large scale or particularly serious international criminality, extending back at least to the 15th Century in Germany. In the early 1900s Americans were tried for offences in the nature of war crimes committed in the Philippines. In 1921 twelve German soldiers were tried for crimes committed in Leipzig.
And so it went until the largest breakthroughs after the Second World War with the Nuremberg trials and the Tokyo trials.
In modern times we have had the International Tribunals for the former Yugoslavia and for Rwanda (where hundreds of thousands were killed). We have had the very successful Lockerbie trial, a collaborative effort between a number of states. And now we have the International Criminal Court – arguably the single most important development in international criminal justice in a hundred years.
There are also proceedings for crimes against humanity in tribunals in East Timor. A special, hybrid court has been set up in Sierra Leone with collaboration between the government and the UN – an imaginative model. Trials may be held in Cambodia of former Khmer Rouge. Will we see international tribunals dealing with offences committed in Iraq under Saddam? Will we see prosecutions in the Congo?
These are rule of law responses to large scale breaches of international criminal law and to forms of terrorism between and within states. These are the sorts of responses that can be made – and that should be made – rather than having resort to “war”.
WAR
During World War II the US Attorney General, Francis Biddle, said: “The Constitution has not greatly bothered any wartime President”. Is this the case now?
Francis Biddle’s statement is to be contrasted with that of Justice Breyer of the US Supreme Court, speaking to the Association of the Bar of the City of New York on 14 April this year, when he said: “The Constitution always matters, perhaps particularly so in times of emergency.” He said that by searching for alternative methods that avoid “constitutional mistakes” lawyers, judges and security officials help the government avoid extreme positions (at both ends of the spectrum): that the Constitution does not matter or that security emergencies do not matter.
At the close of World War II a warning was
sounded and a great example set to the world when Justice Murphy said in the
case of Duncan v Kahanamoku, 327 U.S. 304
(1946) (quoting also from Ex parte Milligan, 71 U.S. 2 (1866)): “[W]e
must be on constant guard against an excessive use of any power, military or
otherwise, that results in the needless destruction of our rights and
liberties. There must be a careful balancing of interests. And we must ever
keep in mind that ‘The Constitution of the United States is a law for rulers
and people, equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all circumstances’”.
In 1962, however, Earl Warren, then Chief Justice of the US, wrote in the New York University Law Review that courts are unreliable in time of war or emergency and that “other agencies of government must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution.” In a democracy, he wrote, “it is still the legislature and the elected executive who have the primary responsibility for fashioning and executing policy consistent with the Constitution… the day-to-day job of upholding the Constitution really lies elsewhere. It rests, realistically, on the shoulders of every citizen”. Those statements are entirely in accord with our understanding of the nature of the rule of law; but they devalue the role of the courts in maintaining it.
CONSEQUENCES
In his declaration of war on terrorism President Bush spoke of “bringing the perpetrators to justice”. However, it appears to be a special kind of justice.
One cannot help wondering what the response would have been if the perpetrators of 11 September 2001 had all come from within western states, rather than from the shelter of the Taliban in Afghanistan and from other countries of inferior power, particularly in the Middle East.
Another consequence of adopting the war
paradigm is the effect on the web of relations between states and the
international mechanisms that bring them together, such as the UN. Chris
Patten, External Relations Commissioner for the European Commission, said (of
US involvement in Iraq) at the Commonwealth Law Conference in April 2003: I
do not believe that there is any other or better way of dealing with these
matters than through the mechanisms and procedures of the United Nations. That
may not always produce a consensus, as we can see today. But if we do not try
to apply the matrix of international agreements and institutions to the
resolution of these issues, we will find ourselves increasingly living in a
world where might is confused with right, and double standards are seen to
reign supreme.”
In the USA there has been a mix of prosecution and detention without charge.
DETENTION OF NON-CITIZENS
Guantanamo Bay was put on our mental maps when on 13 November 2001 the President of the USA issued a Military Order. In it he made findings about acts and threats of terrorism and made subject to the Order “any individual who is not a United States citizen with respect to whom I determine from time to time in writing that” the individual is or was a member of “al Qaida”, or has been engaged in certain activities linked with terrorism, or has knowingly harboured such an individual, and “it is in the interest of the United States that such individual be subject to this order”.
Arrangements for detention are made in section 3. They provide for detention anywhere designated by the Secretary of Defense, and (properly) for humane treatment without adverse discrimination, for “adequate food, drinking water, shelter, clothing and medical treatment”, for the free exercise of religion and for other conditions to be prescribed by the Secretary of Defense.
Section 4 provides for the trial of such individuals by a military commission, for such trial to be a “full and fair trial”, for any evidence that “would … have probative value to a reasonable person” to be admitted, for legal representation for the defence, for conviction and sentence “only upon the concurrence of two-thirds of the members present at the time of the vote, a majority being present” and for submission of the record of the trial for final approval by the President or the Secretary of Defense (if so designated by the President).
Section 7, paragraph (2) provides: “the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal”.
Camp X-Ray, where most of the people (now about 640 from 42 countries) is on a patch of land at Guantanamo Bay at the eastern end of Cuba which is leased from Cuba by the USA. A term of the lease is that Cuban law does not extend to that territory. US law has been held by US District Courts not to apply to it, either, because it is outside the territorial jurisdiction of the courts (subject to what, if anything, the US Supreme Court might have to say in due course). The detainees are “non-persons” with no rights. They have no legal representation, no inspections from human rights organisations (except for limited access by the Red Cross), no accountability of the captors or checks on abuses, they have not been charged with any crimes (although six – including one Australian – have been declared by President Bush to be eligible for trial by military commission), their identities have not been disclosed, they do not have POW status and if they are tried, the trials will be in secret.
ENEMY COMBATANTS
In addition to the plight of the non-citizens detained at Camp X-Ray, the US President, under the laws of war, may designate any person, US citizen or not, as an “enemy combatant”. According to the US Department of Justice, such a person may be held indefinitely without charge, has no right to a lawyer and the courts cannot review the determination. An enemy combatant may include a member, agent or associate of Al Qaeda or the Taliban (which, however oppressive, was the lawful government of Afghanistan). An enemy combatant may remain in custody until the present or another President declares that the war on terrorism is over.
Courts of first instance have ordered that such detainees be accorded the normal right to counsel and review of their status, but they have been routinely overturned on appeal. Earl Warren’s words resonate in these decisions.
The American Bar Association Task Force on Treatment of Enemy Combatants in February 2003 made a number of recommendations about enemy combatants. It recommended: that enemy combatants (whether US citizens or not) who are detained in the USA be afforded the opportunity for meaningful judicial review of their status; that they not be denied access to counsel; that clear standards and procedures be established governing their designation and treatment; and that the Executive Branch consider how US policy may affect the response of other nations to future acts of terrorism. But none of that touches the non-citizen detainees at Guantanamo Bay.
(I shall return to the designation of “enemy combatants”.)
These have not been the only official responses, however. The USA, the western democracies and many other countries, quite rightly, have been quick to condemn terrorism as a specific crime and to legislate; but sometimes they have done so in ways that erode human rights and do violence to the rule of law. Those provisions do not apply just to the remote hills of Afghanistan or the deserts of Iraq – they are not confined to small parts of the globe – they reach to every resident of the states from which we come.
Perhaps the oddest reaction of any government to the terrorist threat, especially after the Bali bombings, has been my own government’s issuing to all Australian households, at a cost of AUD 15M, of a fridge magnet on which there are warnings about and requests to report unusual behaviour, the exhortation to be “alert, but not alarmed” and on which one can write emergency numbers and contacts. It has spawned much satirical comment. Privacy International (perhaps best known for its annual Big Brother awards for intrusive practices) received 5,000 nominations from 35 countries for an award for the most stupid security measure since 11 September 2001. Our fridge magnet won on account of its scale, cost and meaningless nature.
There has indeed been much activity
internationally. On 12 September 2001, the very day after the New York and
Washington attacks, the UN Security Council adopted Resolution 1368. Among
other things, it “Calls on all States to work together urgently to bring to
justice the perpetrators, organizers and sponsors of these terrorist attacks
and stresses that those responsible for aiding, supporting or harbouring
the perpetrators, organizers and sponsors of these acts will be held
accountable”.
On 28 September 2001 Resolution 1373 was adopted. It mandated that all states shall prevent and suppress the financing of terrorist acts by various prescribed means, deny support to terrorists and take other quite specific and detailed measures to suppress and combat terrorism. The Resolution placed a heavy legal and administrative burden on all states, an obligation that the vast majority of smaller and less developed states (and some wealthy developed states) are still struggling to discharge.
These measures were followed in due course by Resolution 1456 of 20 January 2003 which reinforced the earlier resolutions. It contains two paragraphs of particular relevance to the place of laws and legal systems in the response to terrorism:
“3. States must bring to justice those
who finance, plan, support or commit terrorist
acts or provide safe havens, in accordance with international law, in
particular on
the basis of the principle to extradite or prosecute…
6. States must ensure that any measure taken to combat terrorism complies with all
their obligations under international law, and should adopt such measures in
accordance with international law, in particular international human rights,
refugee, and humanitarian law”.
The Council of Europe (now of 45 nations) in its Common Position of 27 December 2001 defined a “terrorist act”[1]. It is but one of the attempts made around the world to define terrorism. It is capable of embracing state-sponsored terrorism, even that committed in the course of a “war on terrorism”. Perhaps for fear of that happening, and for other unspecified fears held for US servicemen abroad, the USA has pursued misplaced and unfortunate opposition to the International Criminal Court. It is coercing states (at the latest US count, 44 who are prepared to admit to it and seven who are not) to exclude the Court’s jurisdiction over Americans in those places. These are called “Article 98 agreements”. (It is incongruous, for example, that the USA is seeking such an agreement with Croatia while at the same time attempting to persuade that country to surrender citizens to the ICTY.)
On 24 January 2002 the Assembly of the Council of Europe adopted Resolution 1271. It states the need to “take stock” of the means to combat terrorism and paragraph 5 states, significantly, that “The combat against terrorism must be carried out in compliance with national and international law and respecting human rights”. It calls on all member states to take various specific steps to assist in the prevention and suppression of terrorism.
PUBLIC INFORMATION
The 12th point made above in relation to the rule of law was reinforced by Justice Potter Stewart of the US Supreme Court, when in 1971 the Court ruled on an application by the Nixon administration to prevent the New York Times from publishing Pentagon papers about the history and origins of the Vietnam War (what the Vietnamese call the “American War”). He addressed the role of the press on national security issues, noting that on those matters the usual legislative and judicial checks on executive power scarcely operate – Congress and the courts defer to the President. In an echo of Earl Warren nine years before, he said: “The only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry”.
However, in the absence of an enlightened citizenry, an informed and enlightened public opinion, the rule of law may be corrupted.
What have the public media done to enlighten the citizenry? In my country, at least, too little, too late, and I suspect that others have the same experience.
When the rule of law is cast aside anywhere, we all have reason for concern.
Legislation has been passed in many countries that seriously interferes with the previously accepted rights of the citizenry (the US Patriot Act being an example; the ASIO legislation in my country being another); but action has also been taken that does not seem to require legislation. In this section I am returning to the non-US citizen so-called enemy combatants detained at Guantanamo Bay and the US citizen enemy combatants detained in the USA.
The term “enemy combatant” seems to have
been appropriated from the case of Ex parte Quirin,
317 U.S. 1 (1942). In that case German saboteurs landed in New York and
Florida, buried their uniforms and proceeded inland in civilian dress. They
were convicted by military tribunals. On appeal, the US Supreme Court said
that: “an enemy combatant who without uniform comes secretly through the
lines for the purpose of waging war by destruction of life or property [would
exemplify] belligerents who are generally deemed not to be entitled to the
status of prisoner of war, but to be offenders against the law of war subject
to trial and punishment by military tribunals.”
The rule of law is not an optional consideration, if human rights and democracy are to be assured. It requires a strong, independent and principled judiciary. (Conversely, a weak or compromised judiciary contributes to the erosion of the rule of law.) It requires an acknowledgement of the separation of the judicial power from both the legislative and the executive and of the role of the judiciary in the constitutional enforcement of the law – including observance of the law by the two other branches of government.
In times of emergency there is a temptation on the part of the citizenry to give the executive its head. That may be appropriate, to a point; provided it is done within the law. But emergencies do not last forever and special measures put in place at those times must be wound back as circumstances permit.
An open-ended, undefined war against terrorism has an impact on individuals which may be felt domestically and internationally. Real harm may be done to the fabric of society and to the fabric of international relations that may take decades to repair. Importantly, also, that conduct may in fact increase, not diminish, a state’s exposure to terrorist acts.
In matters of security and in criminal justice there must always be balance. It is impossible in either field to achieve certainty. There must be room for trust, properly based, between the guardians and the guarded. If the balance of powers is destroyed, then trust will also be lost, rights will be put at risk and life will become intolerable.
Let us imagine a worst case scenario – multiple, simultaneous, violent attacks (for example, bombings) on populous establishments in many centres in many countries, in many regions of the world. Where does a war against terrorism point us in those circumstances? How could it possibly help us?
Is it not far preferable, in those and other cases, to rely on the best mechanism we have and that we know will work with very little downside – the pursuit of the perpetrators through the criminal justice processes that are already in place and ready to be activated?
For that we need, among other things, prosecutors who can respond promptly by acting in a coordinated way. The IAP is constantly building that resource, at this conference and elsewhere. I hope that can be one of our important contributions to history – and there is no time to lose for us to make that history a better one than the version presently being written by those who, for whatever reason, push to one side the rule of law.
[1] Article 1
…
3. For the purposes of this Common Position, “terrorist act” shall mean one of the following intentional acts, which, given its nature or its context, may seriously damage a country or an international organization, as defined as an offence under national law, where committed with the aims of:
i. seriously intimidating a population, or
ii. unduly compelling a government or an international organization to perform or abstain from performing any act, or
iii. seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization:
a. attacks upon a person’s life which may cause death;
b. attacks upon the physical integrity of a person;
c. kidnapping or hostage-taking;
d. causing extensive destruction to a government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property, likely to endanger human life or result in major economic loss;
e. seizure of aircraft, ships or other means of public or goods transport;
f. manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons;
g. release of dangerous substances, or causing fires, explosions or floods the effect of which is to endanger human life;
h. interfering with or disrupting the supply of water, power or any other fundamental natural resource, the effect of which is to endanger human life;
i. threatening to commit any of the acts listed under a to h;
j. directing a terrorist group;
k. participating in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way, with knowledge of the fact that such participation will contribute to the criminal activities of the group.
For the purposes of this paragraph, “terrorist group” shall mean a structured group of more than two persons, established over a period of time and acting in concert to commit terrorist acts. “Structured group” means a group that is not randomly formed for the immediate commission of a terrorist act and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure. [Adopted 24 January 2002]
[2] 18 U.S.C. &4001(a)
[3] Universal Declaration of Human Rights, Articles 8 and 9; International Covenant on Civil and Political Rights, Article 14