What does the Rule of Law mean in the Context of Counter-Terrorism?

In 2008, a multinational, multidisciplinary collaborative research project was conceived between Nottingham University, UK, the Club of Madrid (80+ former heads of state from over 50 countries committed to the furtherance of democratic values worldwide), Dr Silvia Casale (former President of the Council of Europe’s Committee for the Prevention of Torture, and UN SubCommittee on Prevention of Torture), and later Malága University, Spain, under the umbrella of the WJP as one of its first Opportunity Fund projects.

The project’s main objective was to examine what the rule of law means in the context of counter-terrorism, which resulted in a number of outputs and approximately 200 recommendations aimed primarily at policy makers and practitioners engaged on these issues at the governmental and intergovernmental levels. The project’s overarching theme has been how legitimate security imperatives can be accommodated within rather than erode the applicable international rule of law framework and its inbuilt mechanisms for exceptionality. As such, the project is concerned by any notion of balancing security imperatives against applicable rule of law principles, which may become a slippery slope for seeking exceptions to normal rights and protections, which in turn may become the norm and/or result in abuses – what the International Commission of Jurists termed as ‘the normalization of the exceptional’ in its extensive 2009 counter-terrorism study (International Commission of Jurists, ‘Assessing Damage: Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights’ (2009)). The project’s principal output is a 1200 page book, AM Salinas de Frías, KLH Samuel, and ND White, Counter-Terrorism: International Law and Practice (Oxford University Press, 2012), which draws upon the expertise of over 40 significant legal and non-legal experts from around the world. Furthermore, two reports were written. Details of these and the book are available elsewhere on the WJP’s website.

In the course of this project, there have been a number of important findings, a few of which are briefly considered here. The first relates to the concept of the rule of law and the applicable international rule of law framework. At present, not only is there no universally agreed definition of terrorism, which remains elusive despite the more recent efforts of the international community to agree one, but the same is true of other pivotal concepts including the rule of law and prevention. Consequently, no clearly agreed parameters (including normative and policy ones) exist for these concepts. From a rule of law perspective, certainty, consistency and coherent approaches to tackling terrorism are essential not only to prevent unlawful or illegitimate practices by states and intergovernmental organizations and the creation of related impunity gaps, but also to ensure adequate levels of civil and criminal accountability for wrongful or criminal acts committed by either terrorist actors or by states/intergovernmental organizations in their counter-terrorist responses (such as acts of torture, or the denial of adequate levels of due process) and adequate levels of access to justice and reparations by their respective victims.

Despite the absence of a universally agreed definition of the rule of law, including within the context of international law, nevertheless there are many identifiable and applicable legal principles which make up the international rule of law framework that the project suggests applies to national and international counter-terrorist responses. The natural starting point would seem to be the United Nations (UN) Global Counter-Terrorist Strategy 2006 which was adopted without a vote by the UN General Assembly and therefore enjoys universal acceptance and legitimacy, at least in theory if not always in practice. More specifically, Pillar IV of the Strategy articulates a number of specific, underpinning legal principles: the UN Charter, international human rights, humanitarian, criminal, and refugee law.

The project, however, strongly suggests that there are a number of other important principles which also make up the framework, including some drawn from general international law. These include democratic principles, which are often considered to be indivisible from the rule of law and respect for human rights, including in the context of peace and security matters within the UN system. There is general acceptance that the concept of democracy includes the notion of accountable government (including its officials and agents), and incorporates such principles as the right to privacy, freedom of thought, conscience and religion, freedom of expression, and freedom of association. Necessity and proportionality are also important, for example when any permissible derogations are made from those rights and obligations articulated within human rights treaties (for example, under Article 4 International Convention on Civil and Political Rights 1966, the principle international human rights treaty) in times of heighten security or public emergency. Such derogations must be essential, involve the least reduction of rights necessary to achieve public safety, be proportionate as well as be for the least amount of time absolutely necessary. Other principles include equality and non-discrimination, not least because it is now widely acknowledged that, at the very least, the right to non-discrimination on the grounds of race, sex, and religion binds all states, irrespective of their ratification of human rights treaties, because it has become part of customary international law and therefore applies to all states, both during times of peace and armed conflict.

There are also a number of principles governing access to justice, reparations, and accountability – including criminal sanctions for the commission of serious international crimes by individuals; civil liability for governments for the commission of internationally wrongful acts or omissions – not least due to their duty of due diligence; and the obligation upon states to ensure effective access to justice and reparations by victims (for example, under Article 2(3) International Covenant on Civil and Political Rights 1966) where a person acting in an official capacity violates its state’s treaty obligations. Another principle, which is particularly significant in the absence of a universal definition of terrorism, is that of legality (nullem crimen sine poene), which requires that anti-terrorism legislation be clear, unambiguous, not overly broad or retrospective, something which has often not been the case. One significant rule of law concern here has been that poorly drafted, overbroad and/or ambiguous anti-terrorist legislation has been politicized to suppress political activists and human rights defenders. Finally, other important principles, such as due process and fairness, make up the international rule of law framework.

Significantly, these principles and sources of international obligation do not operate in isolation, but rather are increasingly interrelated, especially with human rights law. That said, whilst adherence to human rights obligations remains pivotal, it is essential that equal importance and attention is also given to the other principles identified here, including those specified within Pillar IV of the Strategy - each of which have their own unique characteristics and areas of constraint - if a balanced, robust, and comprehensive international framework and Strategy is to exist in both law and practice. This is particularly important during this critical stage of development of what is still a relatively young Strategy, as well as during what some consider to be the emergence of a nascent corpus of counter-terrorism law.

The absence of a universal definition of the concept of prevention is equally problematic, despite the fact that this lies at the very heart of counter-terrorism which, to be effective, requires a strong preventive element, ideally preventing any terrorist attacks long before they are launched. Here the intelligence community and law enforcement officials perform central preventive functions: with the intelligence services seeking to intercept and prevent future terrorist attacks through effective intelligence gathering; and the collection by law enforcement agencies of the evidence necessary to prosecute suspected terrorists to prevent the perpetration of further terrorist activities by those apprehended, and send out more general deterrent message.

A principal rule of law concern here is the absence of clear parameters as to what constitute lawful and legitimate ‘preventive ‘state practices and the corresponding risk of impunity gaps and poor accountability mechanisms. In the absence of these, the concept of prevention has been interpreted somewhat elastically by some states, and has included some practices considered by many to be highly questionable or blatantly unlawful, often justified on grounds of national security imperatives and/or the ‘exceptional nature’ of current transnational threats posed by al Qaeda especially. Such practices have included: justification of the use torture, despite its absolute prohibition under international law upon all states; extraordinary renditions, involving the kidnapping, disappearance, secret detention, torture, etc of persons by the security services of one state and transfer to another state for the purpose of intelligence gathering, normally through the use of unlawful coercive techniques, involving the violation of many different international law principles and rules; the administrative detention of suspected terrorists, some of whom may effectively be held indefinitely – such as in Guantánamo Bay, Cuba – because the holding state is unable or unwilling to prosecute them for fear of exposing its security services, and/or the individuals concerned cannot be returned to their country of origin due to the principle of non-refoulement which prohibits such return where there is a significant risk of their ill-treatment or even death; the use – and in some cases, misuse – of asylum and refugee law as a preventive instrument of governments to deny asylum to and physically remove from their territory those determined as ‘terrorists’, often without the latter’s access to adequate levels of due process to know and contest the alleged case against them; and, perhaps most controversially, the use of lethal force against suspected terrorists, whether or not unmanned drones are used, the legality of which may depend upon whether or not the killing took place in a peacetime or armed conflict context, as well as whether or not the state responsible had the express or implied consent of the ‘host state’ of these suspected terrorists.

The final area of rule of law concern briefly mentioned here relates to the legal paradigms in which particular counter-terrorism responses occur, which may also be an important source of strain on the rule of law framework in practice, and raise issues of potential impunity gaps and accountability challenges. The project findings suggest that at present only two paradigms exist in which counter-terrorist responses may occur (despite the suggestion of, for example, a third ‘national security’ paradigm): criminal justice/law enforcement (with a strong preventive element) and armed conflict. The former paradigm should be the norm and the latter exceptional, which is consistent with the UN Global CT Strategy, including paragraph 5 of Pillar IV which states that:  ‘….the United Nations system's important role in strengthening the international legal architecture by promoting the rule of law, respect for human rights, and effective criminal justice systems, which constitute the fundamental basis of our common fight against terrorism.’

Indeed, even UN Security Council Resolution 1368 (2001), in leaving open the possibility of an armed response in self-defence under Article 51 UN Charter to the 9/11 terrorist attacks in 2001 still reiterated the continuing relevance of criminal justice approaches (paragraphs 3 and 4), which also underpinned the subsequent, also influential, Security Council Resolution 1373 (2001) which followed shortly thereafter.

This is not to reject the potential appropriateness of military approaches, especially when the threshold of violence is crossed to constitute a situation of armed conflict as understood under international humanitarian law and related national and international jurisprudence. Rather, it emphasizes the preventive benefits of well functioning criminal justice systems and approaches - in particular those of intelligence gathering to prevent terrorist attacks from occurring; as well as the deterrent benefits of effective investigations, prosecutions, and where appropriate, convictions of suspected terrorists – all of which may largely obviate the need for military responses, which should remain exceptional not least due to the significant consequences associated with such approaches. 

Key sources of strain for rule of law based responses here can include where executives attempt to blur the boundaries between these two paradigms, including cherry picking elements from each as best suit particular objectives: seeking to have their rule of law cake ie to develop and implement whatever responses best fit particular policy objectives or perceived operational imperatives; while also eating their rule of cake ie attempting to create potential impunity gaps for those involved. This is often accompanied by attempts to exploit areas of possible legal uncertainty, such as resisting any notion of the extra-territorial reach of human rights obligations beyond the physical territory of a State Party to a particular convention (despite the jurisprudence to the contrary of, for example, the UN Human Rights Committee regarding the extra-territorial reach of the International Covenant on Civil and Political Rights 1966, and European Court of Human Rights regarding that of the European Convention on Human Rights 1950, most recently in its high profile cases of al Skeini and al Jeddah in July 2011).

A related and concluding observation here relates to the notion of a ‘War against al Qaeda’. While this more recent variation of a theme represents some improvement on the ‘War against Terror’ in that global efforts have at least been narrowed down to particular non-state actors rather than seeking to tackle any/all terrorist groups or ideologies worldwide, it nevertheless remains problematic from the perspective of rule of law based responses. First, it places too much emphasis on military responses, when criminal justice/law enforcement approaches should be the norm as previously mentioned. Another is that the term has no clear temporal or geographical parameters. This can be problematic, for example, for determining when those persons administratively detained (for example, at Guantanámo Bay, or Bagram airbase in Afghanistan) and not facing criminal charges should be released, which would normally occur on the cessation of an armed conflict, with the resultant risk of indefinite detention.

The notion of a War against al Qaeda further potentially allows states space in which to seek to justify somewhat elastic practices of questionable legality or even clear illegality, some of which are most clearly illustrated by the use of lethal force against suspected terrorists. At present, those engaged in such practices often use this notion of a war against al Qaeda to justify military responses normally associated with an armed conflict paradigm, even when the existence of an armed conflict is highly questionable. Significantly, for example, the current targeted killing programme along the Afghan/Pakistan border, which has probably killed in the region of several thousand people determined by those responsible for the programme to be suspected terrorists, would be completely unlawful in a peacetime/law enforcement context which inter alia prohibits the use of premeditated force against even suspected terrorists. Whilst a situation of, for example, non-international armed conflict is (probably) occurring in some parts of Afghanistan and Pakistan, great care must be taken to ensure that those military responses only permissible during a situation of armed conflict do not occur in parts of these or other countries which are not in a state of armed conflict. From an international rule of law perspective, it is completely unacceptable to try to justify the premeditated use of lethal force in the latter scenario under the guise of some loosely defined War against al Qaeda. Furthermore, where such killings are carried out by unmanned drones, the heavy armaments used are normally inconsistent with the lighter armaments associated with a law enforcement context. A final, more general, concern here is that the notion of some global, indeterminate War against al Qaeda can be used to prevent the close scrutiny of the individual facts and contexts in which some preventive responses occur – some of which may be lawful, and others unlawful.

As will be evident, much work remains to be done with respect to ensuring that the rule of law lies at the heart of national and multinational counter-terrorism responses, both in law and practice.