True security is human rights protection:

Counter-terrorism, policing and human rights in the Commonwealth¹

Tessa Boyd-Caine, Coordinator, CHRI 2007 Report

An article in the Guardian in August 2007 talked about the arrest of a German sociologist earlier this year who has since been placed in solitary confinement on charges of terrorism.² The evidence against him is that his research has amassed information that could be used in the commission of terrorism offences. There is no suggestion by police that he has been engaged in terrorist activities, nor that he was planning to.

His colleague has been accused of having 'the intellectual capability to "author the sophisticated texts" a militant group might require; further that he "as employee in a research institute has access to libraries which he can use inconspicuously in order to do the research necessary to the drafting of texts" of militant groups, though he hasn't written any'.³

In a nut shell, this is the crisis for civil liberties posed by the contemporary anti-terrorism agenda: that people engaged in ordinary, legitimate activities, including but not limited to those relating to the expression of democratic and human rights, are increasingly being prevented from doing so under the guise of countering terrorism.

Stamping Out Rights, CHRI's 2007 report, is about an area in which counter-terrorism has possibly impacted the most upon the general human rights of those living in the Commonwealth: civilian policing. There has been a lot of international concern about the treatment and conditions of terrorism suspects in specific detention facilities, including camps; and in processes that have emerged in countering terrorism such as rendition. But there has been very little investigation into how the international agenda of anti-terrorism has affected people in their daily lives. CHRI's report looks at this question by examining the impacts of anti-terrorism laws on civilian policing throughout the Commonwealth.

On the sheer numbers, only one-third of Commonwealth countries have introduced anti-terrorism laws that affect police powers. Many countries have no specific laws at all. Many others have focused on control of the financing of terrorism, including money-laundering; and on port and border security. But at least one-third of the Commonwealth has introduced laws that

• increase police powers;
• enhance discretion to arrest and detain, sometimes without charge or trial;
• reduce access to the protections of due process including legal representation; and
• diminish police accountability.

These are the four pillars of CHRI's 2007 report. Our findings reveal that not only is this approach undermining the legitimacy of policing throughout the Commonwealth, but it is also fundamentally counter-productive to the objective of countering terrorism.

The failure to adopt a definition of terrorism at international law, at the time in 2001 that UN resolutions were requiring states to enact counter terrorism measures, has been a major stumbling block to ensuring that countries legislate against terrorism in accordance with the international security and human rights framework.

As a result, many states have introduced legislation that undermines the human rights protections of their own laws and systems, or the protections offered at the international level. This has been justified on the basis that the security concerns outweigh those of human rights.

This opposing of security and human rights is a fundamental problem in the current agenda and debates about anti-terrorism. From the Secretary-General of the Commonwealth, to Commonwealth heads of government and leaders of international human rights institutions, all have failed to resist this approach, speaking instead of the need to arrive at a balance between these issues. Yet we must not forget that the Universal Declaration of Human Rights emerged out of the security crisis of World War 2, and it has been the dominant structure to survive the history of crises and conflicts in the ensuing decades. International human rights are the very framework most likely to provide security for all.

The contemporary anti-terrorism agenda has come to affect our daily lives in ways we might never have predicted; in subtle, understated and sometimes-invisible ways. But it is in civilian policing - the local, daily interactions between civilians and police on the street - that we can see the greatest impact of the anti-terrorism agenda upon individual human rights.

In the United Kingdom, expanded stop and search powers have received considerable attention. But the underlying principle upon which these powers operate is of even greater concern for human rights: that is the enhanced terms that justify 'suspicion'. Some anti-terrorism laws require police to have 'reasonable' grounds for suspicion. Reasonable itself is not always qualified in law, but more disturbingly many laws have dropped this qualification altogether. The consequence on civil liberties has been felt in the increased stop, search and detention powers of police not just in the vicinity of particular incidents, but now increasingly in any area at all. Our report talks about protesters and journalists who have been stopped on these grounds, simply for being on their way to a protest. In Australia we see protests now routinely policed by specially trained counter-terrorism forces, who have increased powers of detention without charge, for extensive periods of time, and who can prevent suspects or accused persons from contacting their families or lawyers. The widespread effects of these powers have been felt across the Commonwealth, not just in the UK and Australia, but in African countries including Kenya and in South Asia, particularly in India and Pakistan.

The impact of these powers is not just to increase the ambit of police control on civilian behaviour. It is to instil fear in those who wish to avail themselves of their democratic rights to assemble, to speak and report freely, and to protest. The shape of these powers also reduces the accountability of policing, because it is the boundaries on police powers that enable their use to be controlled and evaluated. Decrease these controls, and you diminish police accountability.

When principles like suspicion, something so basic and fundamental to the criminal justice system, are shifted and sharpened to the point where they become policing tools in the control of populations, rather than in the investigation of crimes, we should be extremely worried about the potential for criminal law to undermine human rights.

Specifically, we see that police are moving from agents that respond to crime, and maintain law and order, to a force for community control, preventing legitimate action, and suppressing democratic rights.

An additional problem of reduced accountability of police powers is the over-use of these laws, something the UK's independent monitor of counter-terrorism has expressed concerns about in that country.⁴ Where burdens of proof are lower, admissibility of evidence is higher, and the checks and balances usually asserted over police are absent in the context of counter-terrorism, police are increasingly turning to these powers in their day-to-day functions, not just in the response to or prevention of security threats. Far from emergency or special measures, these increased powers are becoming the norm for how police do their jobs. This impacts directly upon the elements of proportionality and appropriateness in law, which have also been major victims of counter-terrorism measures in many Commonwealth countries.

Perhaps the starkest example of how human rights have been undermined by the anti-terrorism agenda lies in the shifting territory around approaches to torture. Almost seamlessly, the starting point has moved from the outright prohibition on torture in police interrogation, to a debate about in what circumstances torture can be permitted, and how far it can go. Again, under the guise of a security imperative that outweighs human rights, standards that were once non-negotiable are being increasingly eroded.

Part of the problem we face as human rights defenders is that fear of terrorism is driving people away from support for human rights. CHRI advocates that, far from being oppositional, the interests of human rights and security are one. By meeting governments’ obligations, and protecting and promoting individual human rights, we provide security for both the state and its people.

We need to ensure that in the processes of policing and countering terrorism, we don’t further intimidate and terrorise the people we are trying to protect. When policing alienates and isolates communities, it shuts down the very relationships that provide the police with their legitimacy. It also shuts down channels of communication vital for counter-terrorism intelligence. Such policing can only be counter-productive. Not only does it fail to protect people from fear and insecurity of terrorism, but it undermines its own objective to counter it.

The question that remains, and possibly the most significant challenge facing human rights in this contemporary climate, is how to reassert human rights as the imperative framework shaping the debates, policies and practices of counter terrorism.

Of course, the answers to all this and more are contained in CHRI’s 2007 report, which is available online at www.humanrightsinitiative.org.

For more information contact Gudrun Dewey at CHRI.

1.   This article formed the basis of the speech to launch 'Stamping Out Rights: the impact of anti-terrorism laws on policing", CHRI's 2007 Report, at the Commonwealth Club, London on 14 September 2007.
2.  Richard Sennett and Saskia Sassen "The war on shapeless terror" The Guardian, 20 August 2007.
3.  Ibid
4. Lord Carlile of Berriew QC, UK House of Lords (June 2007) "Report on the Operation in 2006 of the Terrorism Act 2000": http://security.homeoffice.gov.uk/news-publications/publication-search/terrorism-act-2000/TA2000-review061.pdf accessed 20 September 2007.