Terrorism and Democracy

Following 9/11, the British government announced formally the suspension of the clause prohibiting detention without trial, but not of the clause prohibiting discrimination.

Britain's highest court, the Law Lords, recently ruled that the anti-terror laws the parliament passed after 9/11 are incompatible with the European Convention on Human Rights, which was adopted by British law in 1998. The Anti-Terrorism Crime and Security Act 2001 allows the home secretary to order detention without trial of foreign nationals suspected of links to international terrorism. A group of citizens of Muslim countries has been detained by power of the law for three years. They are entitled to take their case to a judicial appeals committee, but they and their lawyers are not being told the reasons for their arrest, hampering their defense.

Human rights organizations have strongly protested the law, and now the House of Lords, sitting as the highest court in the land, has ruled on the matter. The ruling is a non-binding recommendation: the final decision on the fate of the law belongs to parliament, and meanwhile the detainees remain in custody.

The Europeans Convention on Human Rights stipulates that rights it guarantees may be suspended in case of "war or a state of emergency which threatens the life of the nation"; however, the violation of rights must not exceed "what is absolutely necessary under the circumstances of the case."

Following 9/11, the British government announced formally the suspension of the clause prohibiting detention without trial, but not of the clause prohibiting discrimination. Now the Law Lords have ruled that it is unlawful to discriminate among citizens in this matter. In terms of safeguarding personal freedom from indefinite detention without trial, there is no difference between one citizen and another. Moreover, the government conceded that British citizens also present a risk of participation in terrorism. If it saw no need to extend the powers of detention without trial to apply to them, the Law Lords ruled, then it cannot be argued that the detention powers concerning non-citizens "is absolutely necessary under the circumstances."

The ruling is an important human rights victory, but it should be emphasized that the Law Lords did not rule that the fight against terrorism does not justify emergency measures, including detention without trial. Their ruling is based on the prohibition of discrimination between citizens and non-citizens. Eight of the nine Lords ruled that, in view of the threat posed by Islamic terrorism, Britain is indeed facing "a state of emergency which threatens the life of the nation," which justifies violating personal freedom.

In practice, no terrorist action has been carried out in Britain in the three years since the state of emergency was declared. However, the Law Lords ruled, in view of Al-Qaida's brand of terrorism, the government and parliament should be permitted to assess the threat level - even when dealing with a state of emergency of indefinite duration.

One Lord ruled that international terrorism, despite its cruelty, does not endanger the life of the British nation and does not justify detention without trial. However, he too observes that the detentions without trial in Northern Ireland, which were sanctioned in their day by the European Court of Human Rights, were justified because terrorism in that region indeed threatened to undermine society's very foundations.

All of the Lords noted that the European Court of Human Rights had sanctioned detention without trial as a legitimate tool for combating terrorism, on condition that detainees be granted a right of appeal. The verdict concerned Northern Ireland - and even the Republic of Ireland, in view of a relatively limited terrorist threat.

The message coming from the British court is that "a state of emergency and security needs" are not a magic formula for sanctioning all government conduct. The court in a democratic country has an obligation to examine government actions extra carefully, and to try to protect human rights even in a time of emergency. But this does not mean the court will belittle security considerations and withhold from the state vital tools for defense against murderous terrorism. This is an important message for a world pondering over how to deal with terrorism without forfeiting democracy.