11 September 2001, Counter‐terrorism, and the Human Rights Act

DOIhttp://doi.org/10.1111/j.1467-6478.2005.312_1.x
AuthorConor Gearty
Publication Date01 Mar 2005
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 1, MARCH 2005
ISSN: 0263-323X, pp. 18±33
11 September 2001, Counter-terrorism, and the Human
Rights Act
Conor Gearty*
The attacks of 11 September 2001 and the reaction to them has been
the gravest challenge to date to the Human Rights Act 1998. The Anti-
terrorism, Crime and Security Act 2001 has expanded the remit of the
Terrorism Act 2000 and there has been a new concentration on anti-
terrorism by government. This article assesses the impact of human
rights law on the debate about liberty and security following 11
September. It considers how the provisions of the Human Rights Act
have influenced the formulation and interpretation of anti-terrorism
laws, and examines the role of the judiciary in adjudicating on disputes
between the individual and the state. It ends with some general
discussion about the security-driven challenges to human rights that lie
ahead.
INTRODUCTION
It is clear that the events of 11 September 2001 have posed a major challenge
to the philosophical and political integrity of the Human Rights Act. The
basic premise behind the concept of human rights, which is said to be
encapsulated in legal form in the 1998 Act,
1
is that of the equality of esteem
in which each and every one of us is held in view of our humanity.
September 11 has exposed this idea to attack on two fronts by a pair of very
different ideological enemies.
2
First there has been the challenge of
politicized religious faith. In its initial manifestation, a highly particular
18
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Centre for the Study of Human Rights, London School of Economics and
Political Science, Houghton Street, London WC2A 2AE, England
1 See, for the debates on the Bill in Parliament where its rationale is discussed and
explained, J. Cooper and A. Marshall-Williams (eds.), Legislating for Human Rights.
The Parliamentary Debates on the Human Rights Bill (2000).
2 For an anticipation of the kind of problems that human rights was likely to encounter
as a result of these structural weaknesses, see M. Koskenniemi, `The Effect of Rights
on Political Culture' in The EU and Human Rights, ed. P. Alston (1999) ch. 2.
reading of Islam
3
has made possible the use of thousands of innocent people
as instruments in an attempt to ignite world-wide Islamic revolution, a denial
of the victims' esteem so gross as to amount to as grave an abuse of human
rights as has been witnessed in the recent past.
4
Reacting to these atrocities,
and opportunistically drawing strength from them, there has emerged into
the international open a different brand of fundamentalism, this time
connected to Christianity, which preaches the moral validity of a war against
an open-ended category of evildoers, whose humanity matters less than their
perfidy.
5
Joining with the latter sentiment and greatly exacerbating it is a
strong collective instinct, beginning in the United States of America but
spreading across the world, for national survival, a patriotic devotion to a
piece of land that leaves the cosmopolitan citizen first puzzled and then lost
for words.
6
This prioritization of territory over people amounts to a second
front in the `War on Human Rights' that (it is now evident) the inflated
language of the `War on Terror' inevitably entails.
It is with one smallish theatre in this global conflict, the interrelationship
between the Human Rights Act and United Kingdom counter-terrorism law
and practice, that this chapter is concerned. Has the existence of the Human
Rights Act made any difference to the content and enforcement of Britain's
terrorism law? Would the human rights situation be worse without the Act,
or could it ± just conceivably ± actually be better? Though in its initial
justification not rooted in the demands of anti-terrorism, the invasion and
occupation of Iraq, in which this country has been deeply involved, have
greatly increased international tension and our alleged vulnerability to
terrorism. So it is also relevant to ask here what has been the effect on human
rights law ± indeed on the very language of human rights itself ± of this
unpopular military adventure. The meta-question behind these various
interrogatives is how, if at all, our concern for the equal dignity of all ± of
which the Human Rights Act is our clearest legal symbol ± can survive in a
contemporary political and legal culture that has beco me so deeply
preoccupied with matters of war, politicized religious belief, and national
security. It is possible that historians writing just a few years from now will
regard the idea of human rights as little more than a quaint reminder of a
brief liberal interregnum between two kinds of world conflict, the first
ending in 1989, the second starting in 2001.
7
If this does prove to be the case,
what kind of future lies in store for the Human Rights Act? More to the
point, what can be done to prevent the emergence of such a dismal narrative?
19
3 See G. Kepel, The War for Muslim Minds. Islam and the West (2004).
4 For an excellent survey, see G. Oberleitner, `Human Security: A Challenge to
International Law?' (2005) 11 Global Governance.
5 Kepel, op. cit., n. 3, ch. 2.
6 Epitomized by the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act 2001 (the USA Patriot Act).
7 With more despairingly critical articles like that of K.D. Ewing, `The Futility of the
Human Rights Act' [2004] Public Law 829.
ßCardiff University Law School 2005

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