|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Law Foundation Research Reports |
Last Updated: 2 April 2021
COUNTER-TERRORISM AND HUMAN RIGHTS IN NEW ZEALAND
Counter-Terrorism and Human Rights in New Zealand
DR ALEX CONTE
Reader in Law, University of Southampton, England
Published by the New Zealand Law Foundation, 2007 http://www.lawfoundation.org.nz
ISBN 0-473-11205-1
Dr Alex Conte, Reader in Law School of Law, University of Southampton
Highfield, Southampton SO17 1BJ, England alex.conte@soton.ac.uk
Publisher:
New Zealand Law Foundation Te Manatu a Ture o Aotearoa Level 1, 70 The Terrace Wellington, New Zealand http://www.lawfoundation.org.nz
© Alex Conte 2007
Electronic copies of this publication, in full or in part, are available online at http://www.lawfoundation.org.nz
Contents Overview
Author xix
The New Zealand Law Foundation xxi
Preface xxiii
COUNTERING TERRORISM
TERRORISM, COUNTER-TERRORISM AND HUMAN RIGHTS
Countering Terrorism 141
ISSUES IN FOCUS
under NZ Law 357
Appendix 1:
A Guide to Legislators, Policy-Makers and the Judiciary on
Human Rights Compliance When Countering Terrorism 425
Table of Contents
The New Zealand Law Foundation xxi
The Draft Comprehensive Convention on International Terrorism 24
United Nations Resolutions on Terrorism 25
United Nations High-Level Panel Definition of Terrorism 26
A Human Rights-Based Approach to Defining Terrorism 27
civil aviation 31
the safety of persons 32
The Draft Comprehensive Convention on International Terrorism 36
The Risk of Terrorism in the South Pacific 54
Supporting an International Framework on Counter- Terrorism 56
terrorist acts 65
to terrorist entities 67
the supply of weapons 67
terrorists 68
Incorporation of the International Terrorism-Related
Treaties 74
Legislative Incorporation since September 11 76
Crimes (Internationally Protected Persons, United Nations
and Associated Personnel, and Hostages) Act 1980 86
International Terrorism (Emergency Powers) Act 1987 87
UN Sanctions (Terrorism Suppression and Afghanistan
Measures) Regulations 2001 and Amending Regulations 92
Counter-Terrorist Framework under the Act 98
TERRORISM, COUNTER-TERRORISM AND HUMAN RIGHTS
Resolutions of the UN Security Council 149
Counter-Terrorism Committee 151
International Guidelines 152
Other Rights 167
Part One, Step 2: The Counter-Terrorist Measure Must be Established by Proper Means 168
Prescription by Law 168
Non-Discrimination and Equality Before the Law 169
Scope of the Prescription 170
Part Two, Step 3: The Counter-Terrorist Measure Must be Necessary 172
The Objective of Countering Terrorism 173
The Objective of the Particular Counter-Terrorist
Measure 173
against the State 174
against the State 175
anti-terrorist framework 175
The Human Rights ‘Scale’ 178
The Counter-Terrorism ‘Scale’ 179
Balancing the Scales 179
Legislative Implementation of International Human
Rights Obligations in New Zealand 185
The Human Rights Act 1993 186
The Privacy Act 1993 187
The New Zealand Bill of Rights Act 1990 188
The ‘Unholy Trinity’ of sections 4, 5 and 6 193
The Meaning of the Term “Enactments” 197
Rights-Specific Limitations 210
General Limitations Provisions 210
Preliminary Matters in the Application of section 5 212
The Substantive Test under section 5 215
Counter-Terrorism and section 5 219
The United Nations Act 1946 and Executive Law-Making 225
The Designation of Terrorists and Terrorist Entities 226
Security and the Investigation of Terrorist Offences 226
The Issue in Principle: How should the United Nations Act
and Bill of Rights Act interact? 241
Operative Provisions of the Bill of Rights Act 241
Applying Section 6 of the NZBORA 242
Applying section 4 of the NZBORA to section 2(2) of
Limiting the Freedom of the Press when Responding
to Terrorism 253
Criminalising the Incitement to Terrorism 264
International and Regional Anti-Terrorism Obligations
and Recommendations 265
of Terrorism 269
The Freedom of Expression 270
Rights 271
Options and Safeguards 275
Jurisdictional Issues in New Zealand’s Applicable Law 286
Summary and Evaluation of New Zealand’s Law on
Incitement 287
Measuring the Terrorism Act against Human Rights Safeguards 291
Summary and Evaluation of the Incitement Provisions in
the Terrorism Act 2006 296
Review and Renewal of Designations 306
interested party 307
United Nations-Listed Terrorist Entities 309
UN Designations and Associated Obligations upon
New Zealand 310
Compliance with Obligations to Designate UN-Listed
Entities 312
A Distinct Process for UN-Listed Entities 313
Treatment of Classified Security Information in
Proceedings 319
Rights 327
designations 350
Changes under the Terrorism Suppression Amendment
Bill 2007 360
The UN Special Rapporteur’s Approach 364
offences’) 364
proscriptions 370
Assessing New Zealand’s Definitions 371
the Bill of Rights 400
Operation of Investigative Tools outside Counter-Terrorism 401 Reform 402
International Terrorism (Emergency Powers) Act 1987 411
Definition of Terrorism under New Zealand Law 421
2002 421
A Qualified Clean Bill of Health 422
A Clean Bill of Health 422
Unjustified Limitations 422
A Guide to Legislators, Policy-Makers and the Judiciary on
Human Rights Compliance When Countering Terrorism 425
Author
Alex Conte LL.M (Hons)(VUW), Ph.D (Cant)
Reader in Law, University of Southampton, England Barrister and Solicitor of the High Court of New Zealand
Dr Alex Conte is a Reader in Law at the University of Southampton, England, teaching public international law, comparative civil liberties, and the law on terrorism and counter-terrorism. He previously taught various aspects of public international law at the University of Canterbury, Christchurch, from 2000 to 2006. Dr Conte was the founding General Editor of the New Zealand Yearbook of International Law, a reporter for the New Zealand Law Reports, and founding convenor of the University of Canterbury’s International Law Group.
Alex Conte was the 2004 New Zealand Law Foundation International Research Fellow, undertaking a comparative study of the interface between counter-terrorism and human rights as between New Zealand, Australia, Canada and the United Kingdom. This book stands as the first major output of that project, although various articles, book chapters and stand-alone publications have been published on the subject during the course of the project.
Dr Conte is a member of the Advisory Panel of Experts to the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, and a fellow to the International Policy Institute on Counter-Terrorism. He was an advisor on counter-terrorism to the New Zealand Ministry of Justice from 2005 to 2006, and has acted as a consultant on various projects of the UN Office of the High Commissioner for Human Rights and the OECD Anti-Corruption Division.
Dr Conte’s research interests are in the areas of the use of force between States, counter-terrorism, and human rights. Recent publications include Defining Civil and Political Rights: the Jurisprudence of the UN Human Rights Committee (2004), Security in the 21st Century: The United Nations, Afghanistan and Iraq (2005), the International Law title to the LexisNexis Laws of New Zealand series (2006), and the student text An Introduction to International Law (2006).
A Special Acknowledgement of the New Zealand Law Foundation
The author was the recipient of the 2004 International Research Fellowship, Te Karahipi Rangahau a Taiao, an annual fellowship generously awarded by the New Zealand Law Foundation.
The 2004 International Research Fellowship funded the author’s project undertaking a comparative study of the interface between counter- terrorism and human rights as between New Zealand, Australia, Canada and the United Kingdom. This book stands as the first major output of that project, although various articles, book chapters and stand-alone publications have been published on the subject during the course of the project. This text focuses upon the interface between New Zealand’s international counter-terrorism and human rights obligations, undertaking comparative analyses where appropriate, with the aim of identifying lessons for New Zealand. A further text is to be published in 2008 by Springer Verlag of Berlin and New York. This second text, to be entitled Counter-Terrorism and Human Rights in the Commonwealth, will be of appeal to a more international audience as well as to New Zealand and will provide further detailed analyses of counter-terrorism law and practice in Australia, Canada and the United Kingdom. It will, as such, pick up on matters particular to those countries including issues concerning rendition and derogations from human rights treaties in times of emergency.
There is no doubt that this project would not have been possible without the Law Foundation’s award of the International Research Fellowship. For obvious reasons, the generous grant allowed research and associated work to be undertaken over a reasonably lengthy period of time in Australia, Canada, Israel, England, Austria, Switzerland and Finland. It is not just the geographical location of this work that was made possible, however. The prestige of the International Research Fellowship opened doors and presented opportunities to work with institutions and people that without the backing of such a fellowship would, I dare say, not have come easily at all. It is a considerable credit to the Foundation’s trustees and Executive Director that this award, established as recently as 2002, has grown to such recognition.
The author is most grateful for the Foundation’s support and thanks its trustees and staff for their assistance during the project, particularly the Executive Director of the Foundation, Lynda Hagen.
The New Zealand Law Foundation is an independent trust established by the New Zealand Law Society, constituted as a Charitable Trust under the Charitable Trusts Act 1957 (NZ).
Preface
The prime objective of this work is to provide an examination and commentary upon the New Zealand’s counter-terrorism law, measuring this against human rights law in New Zealand, as well as relevant international human rights obligations. The text is aimed at lawyers and practitioners within and outside New Zealand. Although the text analyses New Zealand law on the subject, many parts of the book will be of interest to those from outside the jurisdiction. Considerable weight is placed on international obligations and directions, with a unique and useful feature of the text (it is hoped) establishing and explaining a Guide to Legislators, Policy-Makers and Judges on Human Rights Compliance When Countering Terrorism (set out in Appendix 1 and considered in chapter 7). This Guide is intended to assist those within New Zealand, and should be particularly helpful due to the parallels between parts of the Guide and the framework within New Zealand human rights law concerning the limitation of rights. It is hoped that the Guide will also attract the attention of counter-terrorism lawyers and practitioners throughout the world.
This work is drawn from numerous papers, presentations and discussion forums prepared or participated in by the author over the past three years, including conferences and workshops of the UK Society for Legal Scholars, the Australian and New Zealand Society for International Law, the International Law Group at the University of Canterbury, the International Policy Institute on Counter-Terrorism, and the United Nations Office of the High Commissioner for Human Rights.
As mentioned in the special note of thanks to the New Zealand Law Foundation, the research undertaken for this work was funded as a result of the award to the author of the International Research Fellowship, Te Karahipi Rangahau a Taiao, an annual fellowship generously awarded by the Foundation. The author is most grateful for the Foundation’s support and thanks its trustees and staff for their assistance during the project, particularly the Executive Director of the Foundation, Lynda Hagen.
A limited run of the hard copy of this text will be released in late May 2007, with copies to be sent to the institutions mentioned in this preface, as well as the New Zealand Law Society libraries, and Law School libraries throughout New Zealand. Copies will be held at the National Library of New Zealand. Owing again to the kind assistance of the New Zealand Law Foundation, electronic copies of the manuscript will soon be available to
download in pdf format from the website of the Law Foundation at URL
<http://www.lawfoundation.org.nz> .
Thanks must also be extended to various other individuals and organisations that assisted, or facilitated, the conduct of this research. The project was built on research that began in 2001 as part of the author’s doctorate work at the University of Canterbury in New Zealand, and even earlier work on the interface between human rights and security. The supervisors of the author’s doctoral work, Professor John Burrows QC and Professor Scott Davidson of the University of Canterbury, along with Professor Christopher Joyner of the University of Georgetown in the United States, must accordingly be recognised as having influenced the early ruminations of a number of the issues considered this text. Many other colleagues at the University of Canterbury were forthcoming with their willingness to consider ideas and provide input or other forms of assistance, including Associate Professor Neil Boister, Dr Barbara von Tigerstrom, John Caldwell, Professor Philip Joseph, Professor Jeremy Finn, Professor Duncan Webb, Associate Professor Ursula Cheer, Dr Kennedy Graham, Fiona Saunders, and Heather Couch.
One of the most significant advantages of the funding provided by the International Research Fellowship was the ability to visit and work with experts in the field overseas. The first associated fellowship was at the Faculty of Law at the University of New South Wales at Sydney in Australia, as well as an earlier fellowship (undertaken in 2004 outside the auspices of the Law Foundation’s funding) at the Centre for International and Public Law at the Australian National University at Canberra in Australia. My thanks, in that regard, to Professor Andrew Byrnes, Associate Professor Penelope Mathew, Professor George Williams, and Dr Andrew Lynch. Thanks must also be provided to my Australian-based research assistant, Miss Kathryn Neal, who undertook thorough and timely work and assisted greatly.
The second Foundation-sponsored visit took place at the Faculty of Law at the University of Alberta at Edmonton in Canada. Associate Professor Joanna Harrington acted as principal contact for this visit and was most helpful in providing resources and facilitating discussion of issues. The Dean of the Law Faculty, Professor David Percy QC, made the stay at the Faculty very enjoyable, as did the many other friendly faces there. Again, thanks are expressed to my Canadian-based research assistant, Mr Roman Kotovych.
From Canada, research moved to Israel, attending the Inter- Disciplinary Center at Herzlyia as a research fellow to the International Policy Institute on Counter-Terrorism. As an international lawyer, the
author’s work there was both challenging and rewarding, faced with policy rather than legal issues and working with people who have a thorough and practical understanding of the domestic challenges of terrorism and counter-terrorism. Research was undertaken there with the former Executive Director of the Institute, Dr Boaz Ganor, who is well recognized in the field, leading to the establishment by the author and Dr Ganor of an early version of the Guide to Legislators, Policy-Makers and Judges on Human Rights Compliance When Countering Terrorism. The Institute facilitated access to many counter-terrorism practitioners and researchers, including Mr Ihud Ilan, former Head of the Israeli investigation division, the Israeli Security Agency (Shin Bet); Advocate Dvorah Chen, former Director of the Department of Criminal Security Affairs, State Attorney’s Office; Brigadier General (Reserve) Dani Ardeti, Director of the Counter Terrorism Bureau; Dr Eitan Azani; Colonel (Reserve) Advocate Lior Lotan; Colonel (Reserve) Yoni Fighel; Dafna Zarai; Michal Tal; and Irene Avidar.
The warm land of Israel during August and September was replaced by the comparatively cold climate of northern England, undertaking research at the University of Leeds School of Law working alongside a prominent expert on criminal justice and terrorism, Professor Clive Walker. His insight on counter-terrorism law in the United Kingdom, mixed with his pleasant and inimitable northern-England humour, made this part of the research programme both productive and enjoyable.
The balance of the overseas component of the Fellowship programme was spent working with practitioners at the United Nations Secretariat level. November 2005 was spent undertaking thematic and project work at the Terrorism Prevent Branch of the UN Office on Drugs and Crime at Vienna, in Austria. Although this placement as a Sabbatical Professor was initially intended to last longer, the month spent at the Branch was extremely productive, engaging in the preparation of thematic reports on issues to be considered by the Branch, and helping on technical assistance projects being undertaken at the time. The entire team at the Terrorism Prevention Branch was most helpful, although special mention should be made to the Branch Chief, Jean-Paul Laborde; Alex Schmid; Walter Gehr; Piera Barzanó; Stefano Betti; and Michael DeFeo.
Assistance at the United Nations level came early on, even prior to the final establishment of the programme of action under the International Research Fellowship. Edward Flynn, of the Security Council Counter- Terrorism Committee Executive Directorate, and Dr Robert Goldman of the American University Washington College of Law, both facilitated contact with various individuals, including Professor Martin Scheinin who
was appointed during the early part of this project as the Special Rapporteur on the promotion and protection of human rights and counter- terrorism. Through his intervention, a two-month consultancy with the Office of the High Commissioner for Human Rights at Geneva in Switzerland was established, working in the Special Procedures Branch of the Office on the counter-terrorism mandate. Professor Scheinin has subsequently provided further opportunities for work in the area, including a desk-top study of Australia’s counter-terrorism law and practice (leading to a UN report on the subject); participation in the forthcoming country visit by him to the United States of America; and the author’s membership in the Advisory Panel of Experts to the Rapporteur’s mandate. The author is particularly indebted to Professor Scheinin for his time, generosity, and friendship. For the assistance of staff at Professor Scheinin’s Institute for Human Rights, thanks must be given to Kristina Stenman.
The staff at the Office of the High Commissioner for Human Rights have been a genuine pleasure to work with in the projects just identified, as well as subsequent work undertaken with the Rule of Law Team of the Research and Right to Development Branch of the Office in work to establish a Fact Sheet on terrorism and human rights. A note of particular gratitude for the kind and generous support of those staff is extended to Soussan Azarakhchi, Mona Rishmawi, Lisa Oldring, Sonia Cronin, Birgit Kainz, Anne Charbord, and Julia Raue.
The author is also grateful to those outside the United Nations system who assisted in various ways: Gerald Staberock of the International Commission of Jurists; Suzie Alegre, Christopher Michaelson, Fabio Piana, and Beata Kaczmarek of the Office for Democratic Institutions and Human Rights to the Organization for Security and Co-operation in Europe; Ian Seiderman of Amnesty International; Jorg Polakiewicz of the Council of Europe; Katarina von Kopp of Heinrich-Heine-Universität at Düsseldorf in Germany; and Margaret Satterthwaite of New York University in the United States of America.
Upon completion of the overseas aspects of this project, and before returning to Europe to take up a position at the University of Southampton in July 2006, government consultations took place for the purpose of presenting and receiving feedback on provisional findings. These consultations were most useful and sincere thanks are offered to: Mark Gobbi of the Parliamentary Counsel’s Office, as well as John Tanner QC, the Chief Parliamentary Counsel; Rosslyn Noonan, Chief Commissioner of the New Zealand Human Rights Commission, along with various members of her staff including Marianne Elliot; Marie Shroff, Privacy Commissioner, Blair Stewart, Assistant Commissioner (Policy), and Diana
Pickard; the Staff of the Ministry of Foreign Affairs and Trade, including: Gabrielle Rush, and Nik Green; and the Ministry of Justice, including Dr Gordon Hook, Andrew Bridgman, and Rajesh Chhana.
For their willingness to support the initial application to the New Zealand Law Foundation, appreciation is extended to the Honourable Phil Goff, then Minister of Foreign Affairs and Trade; John Tanner QC, Chief Parliamentary Counsel; Professor Andres Byrnes of the University of New South Wales; Rosslyn Noonan, Chief Commissioner of the New Zealand Human Rights Commission; Professor John Burrows QC, now the New Zealand Law Commissioner; Professor Scott Davidson, Pro Vice- Chancellor of Law at the University of Canterbury; Dell Higgie, New Zealand Ambassador on Counter-Terrorism; Associate Professor Joanna Harrington, then of the Faculty of Law at the University of Alberta; and Professor Clive Walker of the University of Leeds Centre for Criminal Justice.
The Staff at the University of Canterbury Design and Print department must also be thanked for their work in producing the final product of this work including its duct cover, especially Robin Wilde, Simon White, and Sharon Gottermeyer.
A sincere note of thanks must finally be given to all my family and friends for their boundless support and encouragement. Particular mention must be made of my very close friends Carlin Rutherford and Gina Clarke, and to Nina and Matthew McCallum-Clark, the parents of my two dear Godsons Louie and George. Special mention must finally be made of my immediate family and, most especially, to mother Dr Carol Conte. My mother’s support has never faulted, and she continues to be an inspiration to me, as she has for many years.
Dr Alex Conte Reader in Law, University of Southampton,
England
April 2007
Chapter 1
Since the tragic events of September 11, 2001, the phenomenon of terrorism and the idea of a war against terrorism have been much publicised. A considerable number of issues arise when considering terrorism, particularly having regard to post-September 11 events. Primarily, those issues can be classified in three groups. First is the subject of the physical response to September 11, borne out through the interventions in Afghanistan and Iraq under Operation Enduring Freedom, Operation Iraqi Freedom and the generic ‘war against terror’ – matters, in short, concerning the use of force between States. Second are those issues involved in the prosecution, arrest and extradition of the perpetrators of terrorist acts – matters concerning international and transnational criminal law. Finally, and partly linked with the second set of issues, is the question of how to suppress and deal with terrorist acts – counter-terrorism.
This text is focussed upon a particular aspect of the third set of issues (counter-terrorism). It examines New Zealand’s counter-terrorism obligations and the interface between those and its international human rights obligations (including the domestic instruments through which those obligations have been implemented). The text is divided into three parts: first, considering counter-terrorism; next, considering the overall interface between terrorism, counter-terrorism and human rights; and, finally, looking at particular issues in focus. The aim of the text is to asses New Zealand’s compliance with its international counter-terrorism and human rights obligations and identify, having regard to international and comparative action, what lessons might be learnt.
Part I of this text considers the first piece of the equation: terrorism and counter-terrorism. It begins by examining the nature and definition of terrorism (chapter 2), then moving to provide an examination of the international framework for countering terrorism (chapter 3). Having done so, an explanation is given as to how international obligations are transformed into domestic law (chapter 4), with an overview provided of New Zealand’s consequent law on counter-terrorism (chapter 5).
The second part of the text moves to consider the interface of terrorism and counter-terrorism with the second piece of the equation: human rights. It begins by looking at the impact of terrorism upon human rights (chapter
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is part of the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at http://www.lawfoundation.org.nz
6) and then, separately, the impact of counter-terrorism upon human rights (chapter 7). These chapters consider the international legal framework. The following chapters in Part II consider New Zealand’s domestic framework for the protection of civil and political rights (chapter 8), the means by which the law accommodates the limitation of rights (chapter 9) and the isolated issue of executive versus parliamentary law-making under the United Nations Act 1946 and the human rights challenges this legislation poses (chapter 10).
The final part of the text looks at issues in focus (chapter 11). It begins with consideration of democratic and civil rights. The freedom of expression is examined within the context of media control (chapter 12) and the prohibition against the incitement to terrorism (chapter 13). Freedom of association is next considered (chapter 14) in the first of two chapters looking at the process by which individuals or entities may be designated as terrorist or associated entities. Chapter 15 examines the compatibility of that process with natural justice and the right to a fair hearing. Turing to criminal process issues, chapter 16 considers terrorism offences, the definition of terrorism and the principle of legality. Privacy and surveillance are examined in chapter 17. The impact of new powers of police questioning are looked at in chapter 18, followed by consideration of search and seizure, arrest and detention, and profiling in chapter 19.
Part I: Countering Terrorism
Chapter 2
The Nature and Definition of Terrorism
International terrorism is not a new phenomenon. Indeed, the origin of the word ‘terrorism’ dates back to the French Revolution of 1789 as the label used by the establishment to describe the conduct of revolutionaries.1 Likewise, terrorism has been a subject of concern with the United Nations since the 1960s, following a series of aircraft hijackings. Terrorism has, some would argue, entered a new phase since September 11 of 2001: an age where trans-national activity has intensified and been made easier, and where technology and the media can be taken advantage of by terrorist entities to further the impact of terrorist conduct and the delivery of messages or fear-inducing images.2
Despite the long-lasting presence of terrorism in domestic and international life, however, there is currently no comprehensive and concise universally accepted legal definition of the term. With that in mind, this chapter first considers the nature of terrorism and the problems with, and attempts in, achieving an internationally agreed-upon definition of the term. It briefly touches upon a human rights based approach to defining terrorism, as advocated by the UN Special Rapporteur on counter-terrorism, as a prelude to a more detailed examination of that approach in chapter 16.
The Nature of Terrorism
In its popular understanding the term ‘terrorism’ tends to refer to an act that is wrong, evil, illegitimate, illegal, and a crime. The term has come to be used to describe a wide range of violent, and sometimes not-so violent, conduct (especially in the hands of the media since 11 September 2001). Acts characterized as terrorist in nature can occur both in conflict and peace-time. They may constitute crimes in domestic and international law, and they are motivated by a complex matrix of reasons and ideals. Their
1 French Ambassador to Fiji, His Excellency Berg, “Terrorism: The New International Challenge”, presentation at the public workshop, How Should Fiji Respond to the Threat of Terrorism?, hosted by the Citizens’ Constitutional Forum and the Fiji Human Rights Commission, 17 July 2004, Suva, Fiji.
2 Ibid.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
characterization can also depend upon the person or institution using the label and may even change over time. To give two very striking examples, the United States keeps a list of the most wanted terrorists.3 That list featured, at one time, Yassir Arafat and Nelson Mandela, both of whom were subsequently awarded the Nobel Peace Prize: clearly evidence that this is a highly political and controversial issue. In the months prior to his death, Yassir Arafat was again described by the United States Administration as a terrorist.4
Terrorism and Crime
Having regard to the complex nature of terrorism, and the political and popular conceptions held about the term and about those who perpetrate terrorist acts, care must be taken when considering and assessing situations and how they might impact upon the topic. In the context of terrorism and crime, an interesting question might be posed: why talk about terrorism at all? An act of ‘terrorism’ will, after all, comprise a series of acts which, in and of themselves, constitute various criminal offences. To take an example, a bombing of an Embassy will likely involve the unlawful possession of explosives, the wilful destruction of property and the wilful or reckless injury to or killing of persons. Each element is a criminal offence in most jurisdictions and, as such, is capable of being dealt with by the relevant municipal jurisdiction.
In submissions before the New Zealand Foreign Affairs, Defence and Trade Committee on the Counter-Terrorism Bill 2003, for example, Professor Matthew Palmer argued that there are no good policy grounds to justify a separate, parallel regime of counter-terrorism law.5 Having regard to the composite nature of terrorist conduct, there might be some initial attraction to that argument. Why then add to the extant law and why adopt different standards? On the other hand, some experts insist that the political nature of terrorist acts and the high level of threat that terrorism poses to public safety and public order demand a distinction to be made between
3 This is maintained by the United States Federal Bureau of Investigation and may be accessed online at URL <http://www.fbi.gov/wanted.htm> (last accessed 15 April 2007).
4 Associated Press, ‘Timeline: Yasser Arafat’, Foxnews.com US and the World, 8 February 2005, online: <http://www.foxnews.com/story/0,2933,136880,00.html> (last accessed 12
January 2007).
5 New Zealand, Counter-Terrorism Bill. Government Bill. Commentary, as reported from the Foreign Affairs, Defence and Trade Committee (2003) 2. See also Professor Palmer’s article “Counter-Terrorism Law” (2002) New Zealand Law Journal 456.
terrorism and other criminal acts.6 There are, for example, crimes that cannot be prosecuted without defining terrorist acts or membership in a terrorist organization. At a further end of the scale, should terrorism instead be judged as an act of warfare and the struggle against it conducted according to the norms and rules of war?
Terrorism and Warfare
Researchers are divided in their opinions on whether terrorism should be considered a criminal act or a political-military act. Brian Jenkins (former head of the Terrorism Project at the Rand Institute) has observed that if one looks at terrorism as a crime, there will be a need to gather evidence, arrest perpetrators and put them on trial. This approach provokes problems of international cooperation, he argues, and is not a suitable response for acts of terrorism perpetrated by a distant organization or a country involved in terrorism.7 Approaching terrorism as warfare, however, one can be less concerned with the aspect of individual guilt, and an approximate assessment of guilt and intelligence are sufficient. The focus is not on a single perpetrator, but rather on proper identification of the enemy. Contrary to Jenkins, Gad Barzilai argues that terrorists are, in effect, criminals, and if terrorism-related crimes are treated differently than ordinary crimes, municipal authorities may employ tougher, more stringent tools to gain illegitimate political advantage.8
Features of Terrorist Conduct
Whether treated as crimes or acts of warfare, terrorist conduct is also distinguishable by reason of its focus, participants, and victims. Each of those factors have parallels with warfare and crime, but terrorism is distinct by virtue of its combination of those factors. First, setting aside the situation of organized crime, criminal conduct is normally focused upon a particular goal (such as the burglary of premises to obtain stereo equipment), with a final end-point (obtaining the desired stereo equipment). Terrorist acts have, in contrast, shown themselves to be generally continuous, given the much longer-term motivations of terrorist
6 Boaz Ganor, The Counter-Terrorism Puzzle. A Guide for Decision Makers (New Brunswick: Transaction Publishers, 2005), 8-9.
7 Brian Jenkins, ‘Foreword’, in Ian Lesser, Bruce Hoffman, et al, Countering the New
Terrorism (RAND Project Air Force, 1999) xii.
8 Gad Barzilai, ‘Center vs Periphery: Rules for “Preventing Terrorism” as Politics’ (2000) 8
Criminal Cases (Pelilim) 247.
organisations; developing, with individuals perhaps starting as youths throwing stones but then moving to sophisticated operations such as that undertaken on September 11; and sometimes escalating, such as the intensification of acts by Al-Qaida from the bombing of US Embassy in Nairobi in 1998, to the attack on the USS Cole in the Yemen in 2000, to the attacks on 11 September 2001 in New York, Washington DC, and Pennsylvania.
Secondly, terrorist conduct is unique by virtue of its participants. Again setting aside organized crime, most criminal enterprises are undertaken by the few and as quietly as possible. Terrorist organisations, while being secretive about impending operations and the identity of secret cells and the like, instead rely on publication of their causes and the recruitment of as many as possible to further those objectives. Finally, while criminal acts are targeted, terrorist ones are often indiscriminate.
The Ideological Nature of Terrorism
The most important feature of terrorism, distinguishing it from other criminal acts or conduct during armed conflict, is the motivation of terrorists and the codex against which terrorists measure their conduct. Generally speaking, those perpetrating ‘normal’ criminal offences do so out of some personal, hedonistic motivation - whether that be the material rewards of a burglary, the thrill and high of challenging ‘the system’ or using drugs, or the desperation of stealing necessities where no alternatives appear to be available. Personal gain is the common feature of criminal conduct, setting aside crimes of passion and those of the mentally disabled. In contrast, the primary motivation of terrorists is altruistic. A terrorist will generally be motivated by a higher cause or ideology that is greater than his or her personal impulses or gains. He or she acts for the furtherance of that external cause (whether it be a localized secessionist movement or global jihad) and the benefit this has to both the cause and the people of it.9 Combined with the honour derived from such conduct in this life, and the rewards in the next, the motivations of a terrorist are far beyond those of an ‘ordinary’ criminal offender. Consider, for example, the following
9 Mr Ehud Ilan, former Head of the investigation Division, Israeli Security Agency (Shin Bet) in Israel (from a paper presented at the ‘Intelligence Challenges in Counter-Terrorism’ workshop at the Terrorism’s Global Impact Conference, Interdisciplinary Center Herzlyia, 13 September 2005).
description of rewards attainable by the Shahid (suicide bomber) in the afterlife:10
When the Shahid meets Allah, he will be forgiven from the first drop of blood. He is saved from the grave. He sees his place in heaven. He is saved from the great horror. He is given 72 dark-eyed women. And he is champion of the right for 70 members of his family. A crown is placed on his head, with a precious gem. That is better than anything that exists in this world.
Added to these distinct motivations of terrorists are the standards against which they measure their conduct. The fact that a terrorist act might be unlawful according to the law of the State in which the act is perpetrated, or at international law, is irrelevant to a terrorist. Terrorists measure their conduct against the codex of the ideology they are pursuing.11 If the ideology mandates the killing of Jews or Christians,12 then that killing is not murder but, instead, a legitimate and appropriate act. The consequence of these features is significant. Standard criminology does not apply. The notion of personal deterrence is largely irrelevant, with the language of terrorists often entirely divorced from that of a ‘normal’ criminal offender.
Moving from these more abstract ideologies, one can also categorize the impetus for particular terrorist acts as falling within one or more of the following four motivations: secession; insurgency; regional retribution; and the phenomenon of what has come to be known as ‘the global jihad’.
It is a reasonably common assertion that one person’s terrorist is another’s freedom fighter. Such positions were identified in numerous submissions to the Foreign Affairs, Defence and Trade Committee on the Terrorism Suppression Bill.13 For instance, would a bombing carried out by a rebel group, which is directed towards the destabilization of fascist authorities (the Pol Pot Regime, for example), amount to a terrorist act or an act of a legitimate liberation movement? Such propositions have been the subject of much debate.14
10 As identified in a statement by Dr Ismail Radwan, Sheik of the Ajlin Mosque in the Gaza Strip entitled “Paradise”, uncovered by intelligence agencies and aired on Israeli television in 2005.
11 Ibid.
12 As called for in the World Islamic Front’s Jihad Against Jews and Crusaders, 23 February 1998 (signed, amongst others, by Usama bin Laden), online: <http://www.fas.org/
irp/world/para/docs/980223-fatwa.htm> (last accessed 23 January 2005).
13 See, amongst others, the submissions of the Socialist Party of Aotearoa, 31 November 2001, Parliamentary Library Ref TERRO/61.
Early resolutions of the General Assembly addressing the issue of terrorism contained express affirmations of the principle of self- determination. In the very first resolution of the United Nations on the subject of terrorism, the General Assembly expressed deep concern over terrorism, urged States to solve the problem by addressing the underlying issues leading to terrorist conduct and then stated:15
Reaffirms the inalienable right to self-determination and independence of all peoples under colonial and racist regimes and other forms of alien domination and upholds the legitimacy of their struggle, in particular the struggle of national liberation movements, in accordance with the purposes and principles of the Charter and the relevant resolutions of the organs of the United Nations;
A number of subsequent General Assembly resolutions echoed this affirmation, adding that such liberation movements should also be conducted in accordance with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.16 One of the most problematic issues in this area is distinguishing terrorists from lawful combatants in legitimate struggles for self-determination. Here, States that do not recognize a claim to self-determination will commonly claim that those using force against the State’s military forces are terrorists. The right to self-determination is the right of a people (sharing a common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection, and or a common economic life)17 to determine their political status and freely
14 See, for example, Boaz Ganor, Defining Terrorism: Is One Man’s Terrorist Another Man’s Freedom Fighter? online publications of the International Policy Institute for Counter-Terrorism, URL <http://www.ict.org.il/articles/define.htm> (last accessed 7 January 2005).
15 GA Res 3034 (XXVII), UN GAOR, 27th Sess, 2114th Plen Mtg, UN Doc A/RES/27/3034
(2004), para 3.
16 The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States was adopted by the General Assembly in GA Res 2625(XXV), UN GAOR 25th Sess, 1883rd Plen Mtg, UN Doc A/RES/25/2625 (1970). The further qualification was first added by GA Res 38/130, UN GAOR, 38th Sess, 101st Mtg, UN Doc A/RES/38/130 (1983), preambular para 6, and reiterated within: GA Res 40/61, UN GAOR, 40th Sess, 108th Plen Mtg, UN Doc A/RES/40/61 (1985), preambular para 8; GA Re 42/159,
UN GAOR, 42nd Sess, 94th Plen Mtg, UN Doc A/RES/42/159 (1987), preambular para 12; GA Res 44/29, UN GAOR, 44th Sess, 72nd Plen Mtg, UN Doc A/RES/44/29 (1989), preambular para 17; and GA Res 46/51, UN GAOR, 46th Sess, 67th Plen Mtg, UN DocA/RES/46/51 (1991), preambular para 14.
17 As defined by the United Nations Educational, Scientific and Cultural Organization, Final
Report and Recommendations of the International Meeting of Experts on the further Study of the Concept of the Right of People, UNESCO Archives Doc SHS-89/CONF.602/7 (1990), para 22.
pursue their own economic, social and cultural development.18 It holds a prominent position within various international documents.19 However, the precise scope of this right and, in particular, whether it includes a right to use armed force and engage in wars of national liberation has always been a point of contention.20 This controversy, as recognized by the Special Rapporteur to the former Sub-Commission on the Promotion of Human Rights, has been the major obstacle to the development of a comprehensive definition of the term ‘terrorism’, and of the completion of work towards the Comprehensive Convention on International Terrorism.21 The Comprehensive Convention is to be considered further later in this chapter, and also in chapter 3; the interface between terrorism and international humanitarian law is considered in chapter 6. What can be said at this point is that, since its adoption of the 1994 Declaration on Measures to Eliminate International Terrorism, the General Assembly has made it clear that self- determination does not legitimate the use of terrorism by those seeking to achieve self-determination.22
The second and third motivations for terrorist acts are those arising out of occupation of a territory by foreign military forces, either in the form of insurgency occurring within the occupied territory or acts directed towards occupying forces but occurring outside the territory. Insurgency and regional retribution have been portrayed by many as the prime motivations
18 Western Sahara, Advisory Opinion (1975) ICJ Reports, 31.
19 Including: the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) and the International Covenant on Civil and Political Rights, opened for signature 16 December
1966, 999 UNTS 171 (entered into force 23 March 1976), common Article 1; the Charter of the United Nations 1945, Articles 1(2), 55 and 56, and Chapter IX; the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (n 16); the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted under GA Res 1514(XV), UN GAOR, 15th Sess, 847th Plen Mtg, UN Doc A/Res/15/1514 (1960); and the Principles which should guide members in determining whether or nor an obligation exists to transmit the information called for under article 73e of the Charter adopted under GA Res 1541(XV), UN GAOR, 15th Sess, 948th Plen Mtg, UN Doc A/Res/15/1541 (1960).
20 Sub-Commission Special Rapporteur on terrorism and human rights, Specific Human Rights Issues: New priorities, in particular terrorism and counter-terrorism, UN Doc
E/CN.4/Sub.2/2004/40 (2004), para 30. See also the Rapporteur’s 1997 report, UN Doc E/CN.4/Sub.2/1997/28.
21 Sub-Commission Special Rapporteur 2004 report (ibid) para 28.
22 Declaration on Measures to Eliminate International Terrorism, adopted under GA Res 49/60, UN GAOR, 49th Sess, 84th Plen Mtg, UN Doc A/Res/49/60 (1994), para 1.
for terrorist events linked to the occupations in Afghanistan and Iraq. Examples include the attack on United Nations headquarters in Baghdad on 19 August 2003, which claimed the lives of the Special Representative of the Secretary-General, Sergio Vieira de Mello, and 21 other men and women. Following the commencement of the multi-national Operation Enduring Freedom in Afghanistan, a manifesto issued by Salem Almakhi and first aired on Aljazeera in October 2002, announced a warning to Christians and members of the alliance waging war against Afghanistan and Al-Qaida.23 A further example can be seen in a video statement of Noordin Mohamad Top directed to various nations and identifying senior members of the Australian Government:24
As long as you keep your troops in Iraq and Afghanistan and intimidate Muslim people, you will feel our intimidation... You will be the target of our next attack... Our enemy is America, Australia, England and Italy... We especially remind Australia that you, Downer and Howard, are killing Australia, leading it into darkness and misfortune and mujahedeen terror...
Finally, closely linked to the ideological nature of terrorism, is the question of Islam and terrorism. An all-too-common and unfortunate expression is that not all Muslims are terrorists, but all international terrorists are Muslim. While that is not entirely correct, and certainly not advocated by the author,25 it is true that the modern phenomenon of international terrorism (in the form of what has come to be known as ‘the Global Jihad’) is perpetrated by radical Muslims. The adoption of terrorism by radical Islamic movements as their modus operandi stems, in part, from the historical development and manipulation of Islam.26
23 Salem Almakhi, Mending the Hearts of the Believers, online:
<http://www.jihadonline.bravepages.com/mending.htm> (last accessed 22 August 2005). Salem Almakhi is said to be one of Usama bin Laden’s supporters and admirers, and personally knowledgeable of Al-Qaida operations: see Yoni Fighel and Yoram Kehati, ‘Analysis of Recent Al-Qaida Documents, Part 1’, Paper of the International Policy Institute (28 November 2002), online: <http://www.ict.org.il/articles/articledet.cfm?articleid+453>
(last accessed 1 July 2004), un-numbered para 23.
24 Associated Press, ‘Indonesia Video Warning on Terror’ (CNN.com International, 17
November 2005), online: <http://edition.cnn.com/2005/WORLD/asiapcf/11/16/ indonesia.terror.ap/> (last accessed 22 November 2005).
25 Secessionist-motivated terrorist organizations, for example, are local to a particular State
and often bear the racial and religious characteristics of that State. Such organizations are capable of undertaking, and have undertaken, transnational acts of terrorism.
Islam began as a faith of a small community of believers during the seventh century in what is now Saudi Arabia.27 It is based upon the belief that Muhammad, a respected businessman in Mecca in around 600AD, received revelations from Allah (God) that were later written down in the Qur'an.28 A period of divisions followed the death of the prophet Muhammad, leading to the characterization of two Muslim loyalties today: the Sunni (representing the vast majority of Muslims today under the Sunnah Islamic faith); and the Shi’ite (who sided with Muhammad’s son- in-law Ali as their caliph and subsequently elevated him to the status of prophet).29 Within what is now the main-stream Sunnah faith, four ‘schools’ of interpretation of the complex text of the Qur’an came to be accepted as legitimate (from liberal to radical): the Hanafi, Maliki, Shafi'i, and Hanbali.30 The greater majority of Muslims advocate and practice the more moderate (and even liberal) interpretations of the Sunnah revelations of the Qur’an. For such Muslims, their faith advocates tolerance of others and their religious choices and customs. On the subject of those that are not Muslim, the Qur’an instructs:31
The core of Islamic life for all Sunnah is usually said to be the ‘five pillars of Islam’: publicly bearing witness to the basic affirmation of faith; saying prescribed prayers five times a day; fasting during the month of Ramadan;
26 See Palbir Punj, ‘Root of Islamic Radicalism’ (The Pioneer, 31 August 2005), online:
<http://dailypioneer.com/columnist1.asp?main_variable=Columnist & file_name=punj%2Fpu nj66.txt & writer=punj> (last accessed 31 August 2005).
27 Following Mohammad’s flight from Mecca, where his teachings had been rejected, he settled in Medina (the second most holy site for Muslims, after Mecca and before Jerusalem) where Islam was accepted by the community and from where it grew.
28 See Robert Wuthnow (ed), Encyclopedia of Politics and Religion (Congressional Quarterly Inc, 1998), 383-393. See also Ibrahim Abu-Rabi, Intellectual Origins of Islamic Resurgence in the Modern Arab World (New York Press, 1995).
29 Ali was a cousin of Muhammad who was an early convert to Islam at the age of 10, and became the husband of Muhammad's daughter Fatimah. Sunni Muslims consider Ali to be a companion of Muhammad only and therefore consider Shi’ite Muslims to be following a false prophet.
30 These schools were named after their four founders Abu Hanifa, Abu Abdullah,
Mohammad bin Idris, Ahmad bin Hanbal respectively: see Palbir Punj (n 26).
31 Surah (chapter) 110, Al-Kafirun (The Disbelievers), Ayat (verses) 4-6: The Noble Qur’an in the English Language (Saudia Arabia, Darussalam, 1996) 788.
giving a tithe or alms for support of the poor; and making a pilgrimage to Mecca at least once during the believer's lifetime, if this is possible.32
Calls for the killing of Jews and Christians by the likes of Usama bin Laden and Al-Qaida is based upon a radical reading of the already conservative school of Sunnah interpretation (Hanbali). The motivation of Al-Qaida, for example, is the spreading of the Muslim faith and the elimination of what such groups see as the evil of modernity.33 The advancement of religious beliefs is not, in and of itself, problematic and is in fact a common tenet of almost all religions. Viewing modernity (democracy, capitalism, Statehood) as an evil that must be eliminated at all cost is, however, an extreme view and one that poses a threat to all western nations. The World Islamic Front Statement of 1998, entitled Jihad Against Jews and Crusaders, purports to be a fatwa (religious ruling) requiring the killing of Americans, and claims to base itself upon a call by Allah to “slay the pagans wherever ye find them, seize them, beleaguer them, and lie in wait for them in every stratagem (of war)”.34 The Statement concludes with the following direction:35
We - with Allah's help - call on every Muslim who believes in Allah and wishes to be rewarded to comply with Allah's order to kill the Americans and plunder their money wherever and whenever they find it. We also call on Muslim ulema, leaders, youths, and soldiers to launch the raid on Satan's US troops and the devil's supporters allying with them, and to displace those who are behind them so that they may learn a lesson.
While this fatwa is particularly directed towards Americans, due to the purported occupation and plundering of the Arabian Peninsula by the United States during the 1991 and 1998 Gulf wars,36 the sentiment of the jihad is one that is opposed to modernity in general. Its desire is to eliminate modernity and return to the era when Islam formed a prosperous ummah (community of Islamic believers) in the Middle East (and possibly
32 Wuthnow (n 28).
33 The International Policy Institute for Counter-Terrorism has written much on this subject. See, for example (all available online: <http://www.ict.org.il> ): Yoni Fighel and Yael Shahar, ‘The Al-Qaida-Hizballah Connection’ (26 February 2002); Yael Shahar, ‘Al-Qaida’s Asian Web’ (15 October 2002); Yoram Kahati, ‘The Continuing Al-Qaida Threat’ (10 May 2003); and Yoram Kahati and Yoni Fighel, ‘Osama bin Ladin as the New Prophet of Islam’ (15 July 2003).
34 World Islamic Front, Jihad Against Jews and Crusaders (n 12), un-numbered para 1. The phrase is taken from The Holy Qura’an, 9:5.
35 World Islamic Front, ibid, un-numbered para 8.
36 Ibid, un-numbered para 3.
beyond) without restriction by State borders: an era in which modernity was absent in the region.
Following the commencement of the multi-national Operation Enduring Freedom in Afghanistan a further manifesto, issued by Salem Almakhi, announced a warning to Christians and members of the alliance waging war against Afghanistan and Al-Qaida.37 This most palpably applies to States participating in Operation Enduring Freedom, but is also of much broader application. It conceivably attaches to all members of the United Nations taking action against Usama bin Laden, the Taliban and Al- Qaida pursuant to various Security Council resolutions and the directions of the Council’s 1267 Sanctions Committee.38 The manifesto finally instructs:39
Anyone who possesses an arrow in his quiver, make haste and [shoot] it for the sake of Allah, and aim it at the enemies of religion – the Jews and the Christians [...].
Along the same lines, an audio tape aired by Aljazeera in 2003, a senior aide to Usama bin Laden, Ayman Zawahri, exhorted his audience with the following words:40
Oh Muslims! Carry out attacks against the embassies, companies, interests and officials of the US, Britain, Australia and Norway. Burn the ground under their feet.
Opposed to this, writers such as Al-Muhajabah condemn the use of terrorism and point to the following Qur’anic versus as those legitimizing jihad, pointing to their restriction to situations responding to aggression against the Muslim people and faith:41
Permission to fight (against disbelievers) is given to those (believers) who are fought against, because they have been wronged [...].42
37 Ibid, un-numbered para 23.
38 Concerning the Security Council resolution 1267 (1999) Sanctions Committee see, infra, chapter 3.
39 Salem Almakhi (n 23) penultimate paragraph.
40 Aljazeera, ‘New Al-Qaeda Tape Calls for Attacks’ (Aljazeera.net, 21 May 2003), online:
<http://english.aljazeera.net/NR/exeres/293D19D4-CBB9-4296-B158-D54246F6259E.htm> (last accessed 22 November 2005).
41 Al-Muhajabah, Some Quranic Versus on Jihad, online: <http://www.muhajabah.com/
quran-jihad.htm> (last accessed 31 August 2005).
42 Surah (chapter) 22, Al-Hajj (The Pilgrimage), Ayat (verse) 39: The Qur’an: The Noble Qur’an in the English Language (Saudia Arabia, Darussalam, 1996), 426.
And what is wrong with you that you fight not in the Cause of Allah, and for those weak, ill-treated and oppressed among men, women and children [...].43
Allah does not forbid that you to deal justly and kindly with those who fought not against you on account of religion nor drove you out from your homes. Verily, Allah loves those who deal with equity... It is only as regards those who fought against you on account of your religion, and have driven you out of your homes, and helped to drive you out, that Allah forbids you to befriend them.44
So it is that the one text of a relatively young religion has given rise to two Muslim loyalties, with four schools of thought arising from the principal Sunnah devotion of Islam. Of those four schools, the minority conservative school of Hanbali45 has been adopted and perverted by some to advocate jihad, through terrorist means, against modernity.46
Rationalizing a Distinct Approach to Terrorism
The need for a distinct approach to the criminalization and suppression of terrorism, outside existing criminal law frameworks, should be apparent from the discussion of the nature of terrorism to this point in the chapter. Approaching terrorism as a phenomenon justifying a distinct regime of counter-terrorism law is not just supported by the features of terrorist conduct just discussed. Such an approach is also driven by most States. The desire of States to take a special approach to the suppression of terrorism appears to be rooted in a combination of factors, not all of which are unique to terrorism, but which may cumulatively have been treated by States as calling for a different approach. The common thread in each factor, or at least in the way each factor can be perceived, is the political interests of States.
The most apparent reason for States taking distinct action against terrorism is the fear-inducing nature of terrorist conduct and the attention
43 Surah (chapter) 4, An-Nisa (The Women), Ayat (verse) 75: The Qur’an, ibid, 124.
44 Surah (chapter) 60, Al-Mumtahinah (The Woman to be Examined), Ayat (verses) 8-9: The Qur’an, ibid, 700.
45 Contrary to the more moderate schools of Islam, the Hanbali school of Sunni Islam
prohibits all forms of public religious expression other than that of those who follow the Hanbali school. The government of Saudi Arabia vigorously enforces this school of Islam, for example, and allows judges to discount the testimony of people who are not practicing Muslims or who do not have the correct faith: see GlobalSecurity.org, ‘Hanbali Islam’, online: <http://www.globalsecurity.org/military/intro/islam-hanbali.htm> (last accessed 5 September 2005).
46 Interview with Yoni Fighel, Researcher at the International Policy Institute for Counter- Terrorism, 31 August 2005, Herzlyia, Israel.
this brings to terrorist events through the media and public alike. This in turn adversely affects the credibility of national executive administrations in the eyes of the public, and also the credibility of the United Nations as an institution established to maintain international peace and security in the eyes of the international community. The more severe the terrorist act, the greater the terror induced, to the extent that the public may in fact be paralyzed in a real sense, affecting their freedom of movement and association, and enjoyment of life.47 That again serves to adversely impact upon national and international ‘executive’ credibility. As will be seen through the discussion of international documents on terrorism that follows, terrorism is therefore viewed as being a crime of ‘international concern’ (using the wording of the Rome Statute on the International Criminal Court) and contrary to the principles of the Charter of the United Nations.48 Terrorism was, in that regard, proposed to be included within the jurisdiction of the International Criminal Court, to stand beside genocide, war crimes and crimes against humanity.
A further issue of concern to States is the transnational nature of terrorist offending. Whether through Embassy bombings on foreign soil or direct attacks within the territory of a State (such as the 2001 attacks in the United States and those in 2005 in London), national interest and national security are affected. Through an international framework on counter- terrorism, those interests can be arguably better protected through the ability to secure the extradition of perpetrators of such attacks and cut off the means by which terrorist organizations operate.
A final and individual self-interest of States is that of combating revolutionary and secessionist terrorism, that is, terrorism occurring solely within a State and aimed at destabilising or overthrowing the established government of the State, or conduct aimed at ‘breaking away’ from the State.49 The established government has, in those circumstances, a very real and pressing desire to eradicate terrorism.50 The international community, in seeking to maintain the integrity of statehood and the stability of regions,
47 As explicitly recognised within various resolutions of the United Nations General Assembly, including GA Res 54/164, UN GAOR, 54th Sess, 83rd Plen Mtg, UN Doc A/Res/54/164 (1999). On the impact of terrorism upon the rule of law and human rights see, infra, chapter 6.
48 See, for example, the Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc A/59/565 (2004), para 145.
49 For more discussion on this point, see Ganor (n 14).
50 By way of example, India’s Prevention of Terrorism Act 2002 describes a terrorist act as one including conduct by a person “with intent to threaten the unity, integrity, security or sovereignty of India” (section 3(1)(a) of the Act).
also has a vested interest. Examples include the Basque Fatherland and Liberty movement in Spain,51 the Kurdistan Workers’ Party in Turkey52 and the Liberation Tigers of Tamil Eelam in Sri Lanka.53
Reaching Consensus on a Legal Defining of Terrorism
The foregoing discussion has considered various popular and political aspects involved in characterising terrorism. It is therefore of little surprise that the international community has been unable to reach consensus on a concise and comprehensive legal definition of the term ‘terrorism’. Confirming many of the issues identified earlier in this chapter, the United Nations Terrorism Prevention Branch describes terrorism as a unique form of crime. Terrorist acts, it says, often contain elements of warfare, politics and propaganda. It continues, stating that:54
For security reasons and due to lack of popular support, terrorist organisations are usually small, making detection and infiltration difficult. Although the goals of terrorists are sometimes shared by wider constituencies, their methods are generally abhorred.
The failure of the international community to achieve consensus on a global definition of terrorism has been criticized by many. The Executive Director of the International Policy Institute for Counter-Terrorism, Boaz Ganor, has proposed that UN Security Council resolutions can only have an effective impact once all States agree upon what types of conduct constitute terrorist acts.55 Thirteen universal conventions related to terrorism have been adopted since the 1970s, with all but the most recent having entered into force.56 The conventions, however, deal with specific forms of terrorist conduct and are thereby precise in nature and not of general application. Furthermore, they are not a solution in themselves, since treaties are only
51 See Appendix A “Background Information on Designated Foreign Terrorist Organizations” in Howard RD and Sawyer RL (eds), Terrorism and Counterterrorism. Understanding the New Security Environment (Revised and Updated), The McGraw-Hill Companies (2003), 507.
52 Ibid, 514.
53 Ibid, 516.
54 United Nations Office on Drugs and Crime, “UN Action Against Terrorism”, URL
<www.odccp.org/terrorism.html> (last accessed 19 June 2002).
55 Boaz Ganor, Security Council Resolution 1269: What it Leaves Out, 25 October 1999, web site of the International Policy Institute for Counter-Terrorism, URL <www.ict.org.il/ articles/articledet.cfm?articleid=93> (last accessed 1 June 2002).
56 See, infra, chapter 4.
binding upon States parties.57 Nor does the United Nations Charter contain a definition of the term. Likewise, the Rome Statute of the International Criminal Court does not include terrorism as one of the international crimes within the Court’s jurisdiction.58 The Court has within its jurisdiction the “most serious international crimes”, according to its preamble. It was proposed, within the draft Statute, to include terrorism within the Court’s jurisdiction, but the failure of States to agree upon a definition of the term resulted in the crime being removed from the scope of the Court’s jurisdiction and subject matter of the constitutive treaty.59 Perhaps most surprising is the fact that Security Council resolution 1373 (2001), which imposes various obligations concerning counter-terrorism upon member States of the United Nations, does not define the term.60
Attempts to Define Terrorism
Attempts to define terrorism have been made since before the establishment of the United Nations. The Draft League of Nations Convention for the Prevention and Punishment of Terrorism was to provide that terrorism comprised:61
All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public.
This Draft Convention never came into force as not enough States ratified it, due mainly to dissent over definition of the term.62
57 By application of the legal principle pacta tertii nec nocent nec prosunt (treaties are not binding upon States unless their consent to be bound has been signified) – as reflected within article 34 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).
58 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
59 There are arguments, however, that terrorist acts fall within the jurisdiction of the Court as constituting crimes against humanity (crimes under article 7 of the Rome Statute).
60 Having said this, the lack of definition was most likely due to the fact (as will be seen through subsequent discussions) that there is a lack of consensus on just what amounts to terrorism. In a desire to issue a forceful, and at the same time early, resolution in the wake of September 11 it is likely that the Council saw use of the term, without definition, as the only viable option in the short term. The problem with this approach is that it has left the question
of defining the term with individual member States, leading to inconsistent definitions and, arguably, a weak rather than forceful resolution.
61 As recorded by the United Nations Office on Drugs and Crime on its website,
“Definitions of Terrorism”, URL <www.odccp.org/terrorism_definitions.html> (last accessed 19 June 2002).
There have been suggestions that terrorism be defined as the peacetime equivalent of war crimes. In a report to the United Nations Office on Drugs and Crime (UNODC), Alex Schmidt proposed taking the already agreed upon definition of war crimes (comprising deliberate attacks on civilians, hostage taking and the killing of prisoners) and extending it to peacetime.63 Terrorism would then be defined as the “peacetime equivalents of war crimes”. It does not appear, however, that this has gained any popular acceptance. Schmidt’s earlier and more complex definition of terrorism is, on the other hand, cited by UNODC as representing “academic consensus”:64
An anxiety-inspiring method of repeated violent action, employed by a (semi-) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby – in contrast to assassination – the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat and violence-based communication processes between terrorist (organisation), (imperilled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on what the intimidation, coercion, or propaganda is primarily sought.
At the European Union level, the crime of terrorism has been defined by the Parliamentary Assembly of the Union as:65
Any offence committed by individuals or groups resorting to violence or threatening to use violence against a country, its institutions, its population in general or specific individuals which, being motivated by separatist aspirations, extremist ideological conceptions, fanaticism or irrational and subjective factors, is intended to create a climate of terrors among official authorities, certain individuals or groups in society, or the general public.
62 Geneva Convention for the Prevention and Punishment of Terrorism 1937 (Draft). See discussion on this point within the website of the United Nations Office on Drugs and Crime, “Definitions of Terrorism”, URL <www.odccp.org/terrorism_definitions.html> (last accessed 19 June 2002). See also Andreu-Guzmán, Terrorism and Human Rights, (International Commission of Jurists, 2002), 185.
63 This definition was put to the United Nations Crime Branch by Schmidt in 1992: ibid.
64 This definition comes from an earlier text by Alex Schmidt and Jongman AI et al.,
Political Terrorism (Amsterdam and Transaction Books, 1988) 5.
65 Recommendation 1426 (1999) of the Parliamentary Assembly of the European Union, European Democracies Facing up to Terrorism, 23 September 1999, para 5. See also the much more precise definition within article 3(1) of the European Council Common Position of 27 December 2001.
Three practical distinctions between terrorist and criminal conduct have been made earlier in this chapter, concerning the focus, participants in, and victims of terrorism. The two definitions of terrorism just cited also contain three further common threads: firstly, that the victims or ‘physical’ target(s) of a terrorist act (a building, or people) are not the ‘primary’ target of the act (the target against whom a message is being sent, usually a government or international organisation); next, the purpose of the threat or violence is to intimidate and create a situation of fear or terror (hence the term terrorism) or to persuade or dissuade the primary target to do or abstain from doing something; and, finally, that this is done to advance an ideological, political, or religious cause.
Objective versus Subjective Definitions of the Term
The sticking point, it seems, is not so much with the technical wording of what physical conduct amounts to a terrorist act. The problem appears to lie with the purpose of the conduct. This, as discussed earlier, is particularly controversial in the context of secession and the valid limits of action by a peoples in pursuit of their self-determination. A number of States argue that a subjective analysis and definition of such conduct (by considering its purpose) should therefore be made. The UN Office on Drugs and Crime reports that Arab States such as Libya, Syria and Iran have all campaigned for a definition that excludes acts of ‘freedom fighters’ from the international definition of terrorism by employing the argument that a justified goal may be pursued by any available means.66
While it must be acknowledged that these positions are firmly held by a small number of States, it should also be pointed out that the majority of States adhere to an objective definition of terrorism (one which does not take into account the motives of the conduct). In 1994, the UN General Assembly adopted the Declaration on Measures to Eliminate International Terrorism.67 The Declaration was based on the notion of peace and security and the principle of refraining from the threat or use of force in international relations.68 It pronounced that terrorism constitutes a grave violation of the purpose and principles of the United Nations.69 While it did not purport to define ‘terrorism’, it did say that criminal acts intended or
66 United Nations Office on Drugs and Crime, “Definitions of Terrorism”, URL
<www.odccp.org/terrorism_definitions.html> (last accessed 19 June 2002)
67 GA Res 49/60 (n 22).
68 Ibid, as is evident through its preamble.
69 Ibid, para 2.
calculated to provoke a state of terror in the general public for political purposes are in any circumstances unjustifiable:70
The States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed, including those which jeopardise the friendly relations among States and peoples and threaten the territorial integrity and security of States. [emphasis added]
In reaffirming the Declaration in 1995,71 the Assembly was even more precise on this point:72
Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them; [emphasis added]
Of even greater value in this respect, according to the Executive Director of the International Policy Institute for Counter-Terrorism, is the Security Council’s resolution 1269 (1999).73 While the resolution also fails to define terrorism, it clearly takes an objective approach to the question of terrorist conduct, stating that the Security Council:74
Unequivocally condemns all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed, in particular those which would threaten international peace and security; [emphasis added]
Resolution 1373 (2001) also points to an objective approach, paragraph 3(g) of the resolution calling upon States to ensure that “claims of political motivation are not recognized as grounds for refusing requests for the
70 Ibid, para 1.
71 GA Res 50/53, UN GAOR, 50th Sess, 87th Plen Mtg, UN Doc A/RES/50/53 (1995), para
3.
72 Ibid, para 2. See also common para 2 of the following resolutions of the General Assembly: GA Res 51/210, 51st Sess, 88th Plen Mtg, UN Doc A/RES/51/210 (1996); GA Res 52/165, UN GAOR, 52nd Sess, 72nd Plen Mtg, UN Doc A/RES/52/165 (1997); GA Res
54/110, UN GAOR, 54th Sess, 76th Plen Mtg, UN Doc A/RES/54/110 (1999); GA Res
55/158, UN GAOR, 55th Sess, 84th Plen Mtg, UN Doc A/RES/55/158 (2000); GA Res
56/88, UN GAOR, 56th Sess, 85th Plen Mtg, UN Doc A/RES/56/88 (2001); GA Res 57/27, UN GAOR, 57th Sess, 52nd Plen Mtg, UN Doc A/RES/57/27 (2002); GA Res 58/81, UN GAOR, 58th Sess, 72nd Plen Mtg, UN Doc A/RES/58/81 (2003); and GA Res 59/46, UN GAOR, 59th Sess, 65th Plen Mtg, UN Doc A/RES/59/46 (2004).
73 Ganor, above n 9.
74 SC Res 1269, UN SCOR, 4053rd Mtg, UN Doc S/RES/1269 (1999).
extradition of alleged terrorists”.75 Even more directly on point, Security Council resolution 1566 (2004) provides as follows:76
Recalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature; [emphasis added].
International Conventions Relating to Terrorism
Chapter 3 will consider in more detail the 13 universal terrorism-related conventions.77 All but the most recent convention, relating to the suppression of acts of nuclear terrorism, have now entered into force. The number and scope of these conventions might, at first instance, seem impressive and comprehensive. They have, however, various limitations. To begin with, they only apply to States parties to the conventions. Even then, the conventions themselves are of limited application because of the very precise subject matter of each treaty. The conventions are not of general application but, rather, relate to specific situations in which terrorist acts might have effect, whether on board aircraft, in airports or on maritime platforms.
The only treaty with the potential to impact a wider audience and scope of activity is the International Convention for the Suppression of the Financing of Terrorism (the Suppression of Financing Convention).78 This is said for two reasons. Firstly, the Convention mirrors much of the suppression of financing obligations contained in Security Council resolution 1373 (2001). As a resolution binding upon all members of the United Nations,79 this has had a significant impact upon the status of the Convention. Prior to 11 September 2001, there were just four States parties to the convention and, accordingly, the Convention was not in force. Since
75 SC Res 1373, UN SCOR, 5385th Mtg, UN Doc S/RES/1373 (2001).
76 SC Res 1566, UN SCOR, 5053rd Mtg, UN Doc S/RES/1566 (2004), para 3.
77 See, infra, chapter 3.
78 International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992).
79 By application of Article 25 of the Charter of the United Nations.
then, and due at least in part to resolution 1373 (2001) and the work of the Counter-Terrorism Committee, almost 160 States have becomes parties to the Convention.80
The Suppression of Financing Convention is also of greater relevance because of the wording of Article 2(1)(b) of the Convention, even though this provision does not purport to define the term ‘terrorism’. In prohibiting the financing of terrorist entities or operations, it defines (for those purposes) what type of acts one may not finance:
Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
The Convention does therefore have some potentially wider application and is useful for States in determining the type of conduct they are to prohibit.
The Draft Comprehensive Convention on International Terrorism
Considered in chapter 3 is the work undertaken since 2000 towards establishing a comprehensive convention against terrorism. One of the expected sticking points in the progress of this work has been that of definitions, not just in terms of defining what amounts to a terrorist act (draft Article 2), but also with regard to the wording of draft Article 18, which concerns exemptions. In particular, the definition and/or inclusion of acts of “armed forces” or “parties” to a conflict (this being relevant to the proposed limited exemptions from jurisdiction and/or liability under the Convention); whether “foreign occupation” should be included within that category of exemptions; and whether the activities of military forces should be “governed” or “in conformity” with international law. Draft Article 18 was described by the Chairman of the Committee as the crux of the convention.81 Hinging upon these matters has been a lack of consensus on a preamble. The Draft Convention definition of terrorist acts is as follows (draft Article 2):
(a) Death or serious bodily injury to any person; or
80 The convention came into force on 10 April 2002. There are now 156 parties to the convention: URL <http://www.un.org/sc/ctc/law.shtml> (last accessed 12 April 2007).
81 Ad Hoc Committee Established by General Assembly Resolution 51/210, UN Press Release L/2993.
(b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or
(c) Damage to property, places, facilities, or systems referred to in paragraph 1 (b) of this article, resulting or likely to result in major economic loss,
when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.
(a) Participates as an accomplice in an offence as set forth in paragraph 1, 2 or 3 of this article;
(b) Organizes or directs others to commit an offence as set forth in paragraph 1, 2 or 3 of this article; or
(c) Contributes to the commission of one or more offences as set forth in paragraph 1, 2 or 3 of this article by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
- (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in paragraph 1 of this article; or
- (ii) Be made in the knowledge of the intention of the group to commit an offence as set forth in paragraph 1 of this article.
The very real advantage of the definition proposed is that it is comprehensive in nature, rather than operational and limited to addressing particular types of terrorist acts, or potential targets, or potential means of furthering terrorist activities.82 It is therefore a great pity that scepticism surrounds the potential for the Draft Convention to become a reality.
United Nations Resolutions on Terrorism
Chapter 3 explains the development of General Assembly and Security Council resolutions on the subject of terrorism and counter-terrorism. What is relevant, for the purposes of this chapter, is to recognise the absence of an express definition of the term ‘terrorism’ within any of those resolutions. This includes resolutions 1269 (1999) and 1373 (2001) of the Security Council through which important obligations upon member States of the United Nations were established.83
82 See, infra, chapter 3.
83 See, infra, chapter 3.
There is one resolution of the Security Council, however, which is of considerable value. Although it does not express itself as establishing a universally accepted definition of the term terrorism, Security Council resolution 1566 (2004) called on all States to cooperate fully in the fight against terrorism and, in doing so, to prevent and punish acts that have the following three cumulative characteristics:84
The United Nations Special Rapporteur on the promotion and protection of human rights and counter-terrorism, in the first substantive report after the establishment of his mandate, expressed support for this approach.85 This approach, and that of the Special Rapportuer, are examined further in chapter 16.
United Nations High-Level Panel Definition of Terrorism
Albeit non-binding, mention should be made of the 2004 report of the Secretary-General’s High-level Panel on Threats, Challenges and Change in which terrorism was described as:86
“any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature and context, is to intimidate a population, or to compel a
84 SC Res 1566 (2004), UN SCOR, 5053rd Mtg, UN Doc S/Res/1566 (2004), para 3.
85 Report of the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, Martin Scheinin, The Protection and Promotion of Human Rights While Countering Terrorism, UN Doc E/CN.4/2006/098(2005), para 38.
86 Report of the Secretary-General’s High-level Panel (n 48) para 164(d).
Government or an international organization to do or to abstain from doing any act” [emphasis added].
There are two problems with this definition, corresponding to each of the emphasised sections of text. Firstly, the definition does not confine itself to the extant terrorism-related conventions. That is, it goes further than the description within Security Council resolution 1566 (2004) of acts to be suppressed in the fight against terrorism by expressing itself to be “in addition to” actions already specified within that resolution. The UN Special Rapporteur on counter-terrorism has expressed dissatisfaction with this approach, instead advocating for precision by restricting ‘terrorism’ to the cumulative characteristics set out within resolution 1566 (2004).87 As indicated, this is explored further within chapter 16.
Furthermore, the definition within the High-Level Panel’s report is potentially is confusing because of its imprecise reference to “civilians or non-combatants”. By doing so, the definition immediately invokes war- time terminology which have significant consequences under international humanitarian law, whereas it should be observed that acts of terrorism predominantly occur during peacetime.
A Human Rights-Based Approach to Defining Terrorism
It has already been mentioned that the UN Special Rapporteur on counter- terrorism has expressed support for the cumulative description of acts to be suppressed in the fight against terrorism. He at the same time pointed out that the principle of legality, reflected within Article 15 of the International Covenant on Civil and Political Rights, imposes a number of requirements that are able to assist in countering the negative consequences of the current lack of an agreed definition of terrorism.88 This will again be the subject of further consideration within chapter 16.
Conclusion
The nature of terrorism is complex. A range of acts might fall within the ambit of a ‘terrorist act’, depending on how that term is defined and perhaps even upon the entity using the term. Terrorism will almost invariably involve criminal acts. It may also be perpetrated during armed
87 Report of the UN Special Rapporteur on Counter-Terrorism (n 85), para 36.
88 Ibid, para 46.
conflict. Terrorism can, however, be distinguished from ‘normal’ criminal conduct by various means:
Ideological motivations are seen by most as the primary distinguishing feature of terrorist conduct from ordinary criminal offending. This affects the views of the perpetrator of terrorist acts as to the value of and culpability for such acts. On a more precise level, terrorist conduct tends to be motivated by secession, insurgency, regional retribution, and/or the ‘global jihad’.
These various features support a distinct approach to the suppression and criminalisation of terrorist conduct. The political interests of most States tend to favour a distinctive approach too. Despite this, there remains no concise, comprehensive and universal legal definition of the term ‘terrorism’. The only commonly held view is that any definition must be objective, such that terrorist conduct is unjustifiable whatever the considerations that may be invoked to justify them. Despite the lack of a universal definition, it may be that the UN Special Rapporteur on counter- terrorism has hit upon a way forward based upon Security Council resolution 1566 (2004) and a human rights-based approach to the subject.
Chapter 3
The International Framework for Countering Terrorism
Chapter 2 has considered the phenomenon of terrorism, having regard to popular and political perceptions of terrorist conduct, and the challenges facing the adoption by the international community of a universal, concise and comprehensive legal definition of the term. This chapter 3 moves on to explore the international framework for the suppression of terrorism.
The two principal sources of public international law are international conventions (treaties) and customary international law.1 The legal framework in the fight against international terrorism is almost entirely limited to international treaties and the binding and non-binding mechanisms that flow from these, including United Nations action under the Charter of the United Nations.2 There is some overlap, however, between treaty and customary law on the subject.
International Conventions Relating to Terrorism
Following the September 11 attacks, the United Nations was quick to defend its position, stating that it has long been active in the fight against international terrorism.3 This is correct in substance, since the organisation has, from as early as 1963, been a catalyst for the creation of a number of agreements providing the basic legal means to counter international terrorism, from the seizure of the aircraft to the financing of terrorism.
The phenomenon of terrorism became an international concern in the 1960s when a series of aircraft hijackings hit the headlines. When the 1972 Munich Olympic Games were later disrupted by the kidnapping of Israeli athletes by a Palestinian group, the then UN Secretary-General, Kurt Waldheim, asked that the issue be placed on the General Assembly’s agenda. In the heated debate that followed, the Assembly assigned the issue
1 Statute of the International Court of Justice 1948, Article 38(1)(1) and (b).
2 Charter of the United Nations 1945.
3 UN Press Release, 19 September 2001.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
to its Sixth (Legal) Committee, which subsequently proposed several conventions on terrorism.
There are now 13 conventions and protocols related to terrorism, all of which except the most recent have entered into force. Those conventions and protocols are identified by the United Nations Counter-Terrorism Committee and Terrorism Prevention Branch as the principal international counter-terrorist treaties. If one were to take a more comprehensive approach, a considerably greater list of international treaties would be listed.4 In its first report to the Security Council Counter-Terrorism Committee, for example, New Zealand referred to its decision to ratify the United Nations Convention against Transnational Organized Crime and its two Protocols against the Smuggling of Migrants and Trafficking in Persons.5 For the purpose of this text, however, consideration will be confined to the 13 universal instruments identified by the Terrorism Prevention Branch, these being commonly identified as the principal terrorism-related conventions and open to ratification or accession by all States.6
The Extant Conventions
The current terrorism-related conventions are directed, in summary, at the protection of potential terrorist targets or at the means through which
4 Including, by way of illustration, the Convention on the Safety of United Nations and Associated Personnel (opened for signature 9 December 1994, 2051 UNTS 391, entered into force 15 January 1999), the Convention for the Reciprocal Recognition of Proof Marks on Small Arms (opened for signature 1 July 1969, 795 UNTS 248, entered into force 3 July 1971), the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (opened for signature 10 April 1972, 1015 UNTS 168, entered into force 26 March 1975), Convention on the Non-Proliferation of Nuclear Weapons (opened for signature 1 July 1968 , 729 UNTS 169, entered into force 5 March 1970), and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (opened for signature 13 January 1993, CD/CW/WP.400/Rev.1, entered into force 29 April 1997). The Terrorism Prevention Branch itself identifies a list of factors that require action in the elimination of terrorism. The list of factors alone runs to seven pages – see ‘Classification of Counter-Terrorism Measures, online: <www.odccp.org/ terrorism_measures.html> (last accessed 2 June 2002).
5 New Zealand Government, Report to the Counter-Terrorism Committee pursuant to paragraph 6 of Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1269, 4.
6 See, for example, the United Nations Treaty Collection list of ‘Conventions on Terrorism,
online: <http://untreaty.un.org/English/Terrorism.asp> (last accessed on 7 January 2004); and Christopher Greenwood, ‘International Law and the “War Against Terrorism”’ (2002) 78(2) International Affairs 301.
terrorist organizations operate. They do three main things: they require States parties to criminalize certain conduct; they provide for the prosecution or extradition of perpetrators of such criminal acts; and they impose obligations upon States to suppress the conduct in question. Three potential target groups exist within the 13 conventions: civil aviation (the Tokyo, Hague and Montreal Conventions and the Montreal Protocol); persons (the Protected Persons Convention and the Hostages Convention); and operations at sea (the Rome Convention and Rome Protocol). Four means through which terrorist acts might be executed or facilitated are the subject matter of the remaining conventions: the Plastic Explosives and Nuclear Materials Conventions, and the Suppression of Bombing, Suppression of Financing, and Suppression of Nuclear Acts of Terrorism Conventions.
The first universal terrorism-related convention, adopted in 1963, was the Convention on Offences and Certain Other Acts Committed on Board Aircraft (the Tokyo Convention).7 The Convention applies to acts affecting in-flight safety. It authorises the aircraft commander to impose reasonable measures, including restraint, on any person he or she believes has committed or is about to commit an act affecting in-flight safety, when necessary to protect the safety of the aircraft. It also requires contracting States to take custody of offenders and to return control of the aircraft to the lawful commander.
The Tokyo Convention was shortly followed by two further conventions concerned with air safety. The Convention for the Suppression of Unlawful Seizure of Aircraft (the Hague Convention),8 makes it an offence for any person on board an aircraft in flight to “unlawfully, by force or threat thereof, or any other form of intimidation, seize or exercise control of that aircraft” or to attempt to do so. It requires parties to the Convention to make hijackings punishable by severe penalties. It requires parties that have custody of offenders to either extradite the offender or
7 Convention on Offences and Certain Other Acts Committed on Board Aircraft, opened for signature 14 September 1963, 704 UNTS 219 (entered into force 4 December 1969). There are currently 182 States parties to the Convention, online: <http://www.un.org/sc/ctc/ law.shtml> (last accessed on 15 April 2007).
8 Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 16
December 1970, 860 UNTS 105 (entered into force 14 October 1971). There are currently 182 States parties to the Convention, online: <http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007)
submit the case for prosecution and also requires parties to assist each other in connection with criminal proceedings brought under the Convention. The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (the Montreal Convention)9 makes it an offence for any person unlawfully and intentionally to perform an act of violence against a person on board an aircraft in flight, if that act is likely to endanger the safety of that aircraft; to place an explosive device on an aircraft; and to attempt such acts or be an accomplice of a person who performs or attempts to perform such acts. As with the Hague Convention just mentioned, the Montreal Convention requires parties to make offences punishable by severe penalties and again requires parties that have custody of offenders to either extradite the offender or submit the case for prosecution.
Finally, the Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (the Montreal Protocol), adopted in 1988, was a further addition to air-safety-related counter- terrorist conventions.10 The Protocol extends the provisions of the Montreal Convention of 1971 to encompass terrorist acts at airports servicing international civil aviation.
Continuing with conventions relating to the protection of potential targets, the second set of treaties relate - broadly speaking – to the safety of persons. In 1973, the Convention on the Prevention and Punishment of Crimes against International Protected Persons, including Diplomatic Agents (the Protected Persons Convention) was adopted.11 Internationally protected persons are defined as a Head of State, a Minister for Foreign Affairs, a representative or official of a State or of an international organisation who is entitled to special protection from attack under
9 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, opened for signature 23 September 1971, 974 UNTS 177 (entered into force 26 January 1073). There are currently 185 States parties to the Convention, online:
<http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007).
10 Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, opened for signature 24 February 1988, ICAO Doc 9518 (entered into force 6 August 1989). There are currently 161 States parties to the Protocol, online: <http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007).
11 Convention on the Prevention and Punishment of Crimes against International Protected
Persons, including Diplomatic Agents, opened for signature 14 December 1973, 1035 UNTS 167 (entered into force 20 February 1977). There are currently 166 States parties to the Convention, online: <http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007).
international law (these people being popular terrorist targets). The Convention requires each State party to criminalise and make punishable by appropriate penalties which take into account their grave nature, the intentional murder, kidnapping, or other attack upon the person or liberty of an internationally protected person, a violent attack upon the official premises, the private accommodations, or the means of transport of such person; a threat or attempt to commit such an attack; and an act constituting participation as an accomplice.
Also within the theme of protecting persons, the International Convention against the Taking of Hostages (the Hostages Convention)12 states that “any person who seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a... State, an international intergovernmental organisation, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage” commits the offence of taking of hostage within the meaning of this Convention.
The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the Rome Convention) was adopted in 1988.13 Here, the treaty establishes a legal regime applicable to international maritime navigation that is similar to the regimes established concerning international aviation. More specifically, it makes it an offence for a person unlawfully and intentionally to seize or exercise control over a ship by force, threat, or intimidation; to perform an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of the ship; to place a destructive device or substance aboard a ship; and other acts against the safety of ships. As an optional protocol to the latter Convention, the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (the Rome Protocol) was also adopted in 1988,14 at the same time as its parent Convention. Again by
12 International Convention against the Taking of Hostages, opened for signature 18 December 1979, 1316 UNTS 205 (entered into force 3 June 1983). There are currently 168 States parties to the Convention, online: <http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007).
13 Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation, opened for signature 10 March 1988, 1678 UNTS 221 (entered into force 1 March 1992). There are currently 141 States parties to the Convention, online:
<http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007).
14 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, opened for signature 10 March 1988, 1678 UNTS 304
way of extension, the Protocol establishes a legal regime applicable to fixed platforms on the continental shelf (similar to the regimes established with regard to international aviation).
The remaining five treaties related to the suppression of international terrorism concern four particular means by which terrorist acts might be perpetrated or facilitated: nuclear materials, plastic explosives, bombings, and the financing of terrorism.
Relevant to the suppression of nuclear terrorism are two conventions. The first of these is the Convention on the Physical Protection of Nuclear Material (the Nuclear Materials Convention).15 This criminalises the unlawful possession, use or transfer of nuclear material, the theft of nuclear material, and threats to use nuclear material (to cause death or serious injury to any person or substantial property damage). Adding to the Nuclear Materials Convention, but not yet in force, is the International Convention for the Suppression of Acts of Nuclear Terrorism (the Nuclear Terrorism Convention).16 The Nuclear Terrorism Convention prohibits the possession or use of nuclear materials or devices for the intention of death, injury or substantial damage to property or the environment for the purpose of compelling a person, State or organization to do or abstain from doing any thing. It sets out obligations of States parties concerning the seizure of materials and devices and the prosecution or extradition of persons acting in breach of the offences established by the Convention.
Within the jurisdiction of the Secretary-General of the International Civil Aviation Organisation, is the Convention on the Marking of Plastic Explosives for the Purpose of Detection (the Plastic Explosives Convention).17 This is designed to control and limit the use of unmarked
(entered into force 1 March 1992). There are currently 124 States parties to the Protocol, online: <http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007).
15 Convention on the Physical Protection of Nuclear Material, opened for signature 3 March
1980, 1456 UNTS 124 (entered into force 8 February 1987). There are currently 122 States parties to the Convention, online: <http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007).
16 International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the General Assembly and opened for signature on 15 April 2005 under GA Res 59/290, UN
GAOR, 59th Sess, 91st Plen Mtg, UN Doc A/Res/59/290 (2005).
17 Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for signature 1 March 1991, ICAO Doc 9571 (entered into force 21 June 1998). There are
and undetectable plastic explosives (negotiated in the aftermath of the 1988 Pan Am 103 bombing). Parties are obligated in their respective territories to ensure effective control over “unmarked” plastic explosive, i.e., those that do not contain one of the detection agents described in the Technical Annex to the treaty. Each party must, among other things: take necessary and effective measures to prohibit and prevent the manufacture of unmarked plastic explosives; prevent the movement of unmarked plastic explosives into or out of its territory; ensure that all stocks of such unmarked explosives not held by the military or police are destroyed or consumed, marked, or rendered permanently ineffective within three years; take necessary measures to ensure that unmarked plastic explosives held by the military or police are destroyed or consumed, marked, or rendered permanently ineffective within fifteen years; and ensure the destruction, as soon as possible, of any unmarked explosives manufactured after the date of entry into force of the Convention for that State.
More recent in time is the International Convention for the Suppression of Terrorist Bombing (the Suppression of Bombing Convention).18 As the name suggests, this creates a regime of universal jurisdiction over the unlawful and intentional use of explosives and other lethal devices in, into, or against various public places with intent to kill or cause serious bodily injury, or with intent to cause extensive destruction in a public place.
Finally, there is the International Convention for the Suppression of the Financing of Terrorism (the Suppression of Financing Convention).19 Of the 13 conventions, this is possibly the most controversial. It requires parties to take steps to prevent and counteract the financing of terrorists, whether direct or indirect, through groups claiming to have charitable, social or cultural goals or which also engage in such illicit activities as drug trafficking or gun running. It commits States to hold those who finance terrorism criminally, civilly or administratively liable for such acts and provides for the identification, freezing and seizure of funds allocated for terrorist activities, as well as for the sharing of the forfeited funds with
currently 130 States parties to the Convention, online: <http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007).
18 International Convention for the Suppression of Terrorist Bombing, opened for signature
12 January 1998, 2149 UNTS 286 (entered into force 23 May 2001). There are currently 149 States parties to the Convention, online: <http://www.un.org/sc/ctc/law.shtml> (last accessed on 15 April 2007).
19 International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992). There are
currently 156 States parties to the Convention, International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992).
other States on a case-by-case basis. Bank secrecy will no longer be justification for refusing to cooperate under the treaty.
The Draft Comprehensive Convention on International Terrorism
Almost one year prior to the September 11 attacks, India had proposed that there be a comprehensive convention against terrorism, and there is much merit in this. Kofi Annan had called for an extensive coalition to combat terrorism and has predicted that such a campaign will be a long one and must involve all countries. Shortly after September 11, he followed in the steps of the Indian proposal and indicated that the General Assembly would take steps to complete a comprehensive antiterrorism treaty encompassing all current conventions.20
It has already been mentioned that the UN General Assembly adopted the Declaration on Measures to Eliminate International Terrorism in 1994.21 At the end of 1996, it established an Ad Hoc Committee, known as the Ad Hoc Committee Established by General Assembly resolution 51/210 (1996).22 The Committee was primarily tasked with work on conventions for the suppression of terrorist bombings and financing of terrorist operations and, thereafter, to address means of developing a comprehensive legal framework dealing with international terrorism.23
India’s Draft Comprehensive Convention on International Terrorism (2000) was subsequently referred to the Ad Hoc Committee. As yet, the convention has not been finalised and is likely to be some time away, if it is ever to become a reality. Due to the lack of unanimity on key issues, the Committee has concluded that finalizing a comprehensive international treaty on terrorism will depend primarily on agreement as to who would be entitled to exclusion from the treaty’s scope, and on what grounds.24 Otherwise, the majority of the 27 articles of the Draft Convention have been preliminarily agreed upon by the Committee. On the definition of “terrorist acts” and exemptions under the Draft Comprehensive Convention, see chapter 2.
20 United Nations Secretary-General’s Report to the United Nations General Assembly, 56th General Assembly Meeting, GA/9914, 24 September 2001. For a more detailed discussion of the Draft Comprehensive Convention, see Andreu-Guzmán, Terrorism and Human Rights (International Commission of Jurists, 2002) 202-210.
21 Declaration on Measures to Eliminate International Terrorism, adopted under GA Res 49/60, UN GAOR, 49th Sess, 84th Plen Mtg, UN Doc A/Res/49/60 (1994).
22 Established under GA Res 51/210, UN GAOR,51st Sess, 88th Plen Mtg, UN Doc
A/RES/51/210 (1996).
23 Ibid, para 9.
24 Article 18 of the Draft Comprehensive Convention.
United Nations Action
Beyond the work of the Sixth (Legal) Committee of the UN General Assembly in working towards the various counter-terrorism conventions discussed, both the General Assembly and Security Council have been working in concert on the issue of counter-terrorism.
United Nations General Assembly
The General Assembly has adopted a series of resolutions concerning terrorism since December 1972, following the kidnapping of Israeli athletes during the Munich Olympic Games. These resolutions take two forms: those relating to measures to eliminate international terrorism; and those, beginning in 1993, concerning the relationship between terrorism, counter- terrorism and human rights. The latter set of resolutions will be considered within chapters 6 and 7, which separately address the interface between terrorism, counter-terrorism and human rights. What follows is consideration of General Assembly resolutions concerning the suppression of terrorism.
The first set of General Assembly resolutions is concerned with the establishment of measures to eliminate international terrorism.25 In that regard, the last decade has seen the Assembly adopt and affirm a Declaration on Measures to Eliminate International Terrorism, first adopted in early December 1994 under its resolution 49/60 (1994).26 The
25 The first resolution of the General Assembly concerning itself solely with the issue of terrorism was adopted on 18 December 1972 against the background of the disruption of the 1972 Olympic Games at Munich: GA Res 3034 (XXVII), UN GAOR, 27th Sess, 2114th Plen Mtg, UN Doc A/Res/XXVII/3034 (1972). Its very title illustrates the view that terrorism is a matter affecting security and the enjoyment of rights: “Measures to prevent international terrorism which endangers or takes innocent lives or jeopardizes fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence which lie in misery, frustration, grievance and despair and which cause some people to sacrifice lives, including their own, in an attempt to effect radical changes”. The same title was used to name eight subsequent resolutions of the General Assembly, from 1976 to 1989: GA Res 31/102, UN GAOR, 31st Sess, 99th Plen Mtg, UN Doc A/Res/31/102 (1976); GA Res 32/147, UN GAOR, 32nd Sess, 105th Plen Mtg, UN Doc A/Res/32/147 (1977); GA Res 34/145, UN GAOR, 34th Sess, 105th Plen Mtg, UN Doc A/Res/34/145 (1979); GA Res 36/109, UN GAOR, 36th Sess, 92nd Plen Mtg, UN Doc A/Res/36/109 (1981); GA Res 38/130, UN GAOR, 38th Sess, 101st Plen Mtg, UN Doc A/Res/38/130(1983); GA Res 40/61, UN GAOR, 40th Sess, 108th Plen Mtg, UN Doc A/Res/40/61 (1985); GA Res 42/159, UN GAOR, 42nd Sess, 94th Plen Mtg, UN Doc A/Res/42/159 (1987); and GA Res 44/29, UN GAOR, 44th Sess, 72nd Plen Mtg, UN Doc A/Res/44/29 (1989).
26 Declaration on Measures to Eliminate International Terrorism (n 21).
Declaration was reaffirmed in the following two years, with a Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism adopted in 1996.27
The 1994 Declaration was based on the notion of peace and security and the principle of refraining from the threat or use of force in international relations.28 It pronounced that terrorism constitutes a grave violation of the purpose and principles of the United Nations.29 While it did not purport to define terrorism, it did say that criminal acts intended or calculated to provoke a state of terror in the general public for political purposes are in any circumstances unjustifiable.30 The Declaration urged all States to consider, as a matter of priority, becoming party to the conventions on terrorism adopted up to that time.31 It called on States to refrain from organizing, instigating, assisting or participating in terrorist acts, and from acquiescing in or encouraging activities within their territories directed towards the commission of such acts.32
In particular, States were directed that, in order to fulfil this obligation, they must refrain from facilitating terrorist activities. Paragraph 5(a) of the 1994 Declaration appears to indicate that a State must be proactive in doing so, obliging States to take appropriate practical measures to ensure that their territory is not used for terrorist installations or training camps, or for the preparation or organisation of terrorist acts. Paragraph 5(b) then refers to the obligation to apprehend and prosecute or extradite perpetrators of terrorist acts.
The practical observation to make is that, although compelling and strongly worded, this is a declaration of the General Assembly and therefore does not have the same weight as a convention, nor does it have signatories that are bound by its content. Indeed, Article 10 of the UN
27 GA Res 51/210, UN GAOR, 51st Sess, 88th Plen Mtg, UN Doc A/Res/51/210 (1996) Annex. The Declaration and Supplement were reaffirmed within: GA Res 52/165, UN GAOR, 52nd Sess, 72nd Plen Mtg, UN Doc A/Res/52/165 (1997) para 7; GA Res 54/110, UN GAOR, 54th Sess, 75th Plen Mtg, UN Doc A/Res/54/110 (1999) para 8; GA Res 55/158, UN GAOR, 55th Sess, 84th Plen Mtg, UN Doc A/Res/55/158 (2000) para 9; GA Res 56/88, UN GAOR, 56th Sess, 85th Plen Mtg, UN Doc A/Res/56/88 (2001) para 10; GA Res 57/27, UN GAOR, 57th Sess, 52nd Plen Mtg, UN Doc A/Res/57/27 (2002) para 10; GA Res 58/81, UN GAOR, 58th Sess, 72nd Plen Mtg, UN Doc A/Res/58/81 (2003) para 10; GA Res 59/46, UN GAOR, 59th Sess, 65th Plen Mtg, UN Doc A/Res/59/46 (2004) para 12; and GA Res 60/43, UN GAOR, 60th Sess, 61st Plen Mtg, UN Doc A/Res/60/43 (2005) para 13.
28 Declaration on Measures to Eliminate International Terrorism (n 21), as is evident through its preamble.
29 Ibid, paragraph 2.
30 Ibid, paragraph 1.
31 Ibid, paragraph 6.
32 Ibid, paragraph 4.
Charter specifically provides that resolutions and declarations of the United Nations General Assembly are recommendatory only:
Article 10
The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.
It is clear through reading minutes of General Assembly meetings immediately following September 11 that there were calls for the United Nations to engage its full potential to identify and attempt to eradicate the roots of terrorism.33 India’s representative pointed out that integral to the efforts to end terrorism and prevent armed conflict is the need to deny to the perpetrators of such conduct access to arms and ammunition.34 A first step towards this has been the adoption of a Programme of Action by the United Nations Conference on the Illicit Trade in Small Arms. Likewise, the General Assembly has given specific consideration to the issue of counter-terrorism within its very lengthy resolution on General and Complete Disarmament.35 The General Assembly has also urged all States to become parties to the International Convention for the Suppression of the Financing of Terrorism.36 It recently issued a resolution concerned with strengthening international cooperation and technical assistance in promoting the implementation of the terrorism conventions and protocols within the framework of the activities of the UNODC Centre for International Crime Prevention.37
33 See, for example, Ad Hoc Committee Established by General Assembly Resolution 51/210, Report of the Ad Hoc Committee Established by General Assembly Resolution 51/210 on a Draft Comprehensive Convention on International Terrorism, UN Doc A/AC.252/2002/CPR.1 and Add.1 (2002).
34 United Nations Press Release, ‘Poverty Reduction, Terrorism, Disarmament, Humanitarian Relief Discussed as General Assembly Continues Review of Secretary- General Report’, from the 56th General Assembly Plenary Meeting, 25 September 2001, statement of Kamalesh Sharma, United Nations General Assembly representative for India.
35 General and Complete Disarmament, GA Res 56/24, UN GAOR, 56th Sess, 68th Plen Mtg, UN Doc A/RES/56/24 (2001) – see Part T ‘Multilateral Cooperation in the Area of Disarmament and Non-Proliferation and Global Efforts Against Terrorism’.
36 GA Res 54/109, UN GAOR, 54th Sess, 76th Plen Mtg, UN Doc A/RES/54/109 (1999).
37 Strengthening international cooperation and technical assistance in promoting the implementation of the universal conventions and protocols related to terrorism within the framework of the activities of the Centre for International Crime Prevention, adopted under GA Res 58/136, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/RES/58/136 (2003).
United Nations Security Council
Just as the General Assembly has been long-acting in its consideration of and work against international terrorism, the Security Council has also considered the issue for some time. The spate of aircraft hijackings of the 1960s saw the Council call on States to take all possible measures to prevent further hijackings or interference with international civil air travel.38
On the day after the September 11 attacks, the United Nations Security Council adopted resolution 1368 (2001), through which it unequivocally condemned the terrorist attacks and expressed that it regarded them as a threat to international peace and security.39 It called on all States to urgently work together to bring to justice the perpetrators, organisers and sponsors of the terrorist attacks.40 Security Council resolution 1373 (2001) was later adopted, through which the UNSC determined that all States were to prevent and suppress the financing of terrorist acts, including the criminalisation of such financing and the freezing of funds and financial assets.41 Described as one of the most strongly worded resolutions in the history of the Security Council,42 it also requires countries to cooperate on extradition matters and the sharing of information about terrorist networks.43
As a decision made under Chapter VII of the United Nations Charter, compliance with resolution 1373 (2001) is mandatory for UN members, imposing certain obligations upon those members.44 Those obligations can be viewed in two parts. The first is the imposition of specific counter- terrorist obligations, as follows:
Acting under Chapter VII of the Charter of the United Nations,
38 See, for example, SC Res 286, UN SCOR, 1552nd Mtg, UN Doc S/RES/286 (1970).
39 SC Res 1368, UN SCOR, 4370th Mtg, UN Doc S/RES/1368 (2001).
40 Ibid, para 3.
41 SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001).
42 Richard Rowe, ‘Key Developments: Year of International Law in Review’ (paper presented at the 10th Annual Meeting of the Australian & New Zealand Society of
International Law, New Challenges and New States: What Role for International Law?, 15 June 2002, Australian National University, Canberra). Richard Rowe at that time worked in the International Organisations and Legal Division of the Australian Department of Foreign Affairs and Trade. He was the Australian representative and Vice-Chairman of the Ad Hoc Committee Established by General Assembly Resolution 51/210 during its Sixth Session, which followed the September 11 attacks.
43 SC Res 1373 (n 41) para 3.
44 Article 25 of the Charter of the United Nations.
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;
(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;
(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;
(a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists;
(b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;
(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;
(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens;
(e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts;
(f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings;
(g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents,
and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents;
This set of obligations expands upon and significantly strengthens the Council’s earlier resolution 1269 of 1999.45 While resolution 1269 (1999) considered steps to be taken by States to suppress terrorism, deny safe haven to terrorists and cooperate with others in the bringing to justice of perpetrators of terrorist conduct, the language of this earlier resolution is weaker for two principal reasons. First, paragraphs 1 and 2 of resolution 1373 (2001) are considerably more specific in the steps to be taken in countering terrorism. Second, the instructive words of the more recent resolution provide that “all States shall”, whereas the earlier resolution used a less forceful provision calling upon States to take appropriate steps to achieve the stated objectives. In short, then, resolution 1373 (2001) takes a considerable step forward in the imposition of counter-terrorism obligations upon members of the United Nations.
It might be observed that, from a practical perspective, using mandatory language is problematic here when one considers some of the specific instructions within paragraphs 1 and 2. Some instructions may not be possible to comply with. Contrast, for example, paragraphs 2(d) and 2(f). Paragraph 2(f) requires UN member States to “afford one another the greatest measure of assistance” in the criminal investigation and prosecution of terrorists, while paragraph 2(d) requires States to “prevent those who finance, plan, facilitate or commit terrorist acts” from using their territories for those purposes. Compliance with paragraph 2(f), assistance in criminal investigations and prosecutions, is possible since it is a reactive activity (activity following a terrorist incident) and capable of measurement. This cannot be said in the case of compliance with paragraph 2(d), prevention of the financing, planning and commission of terrorist acts. All that can be done by a State is to undertake all reasonable or practicable steps to prevent such conduct, but a member State cannot ever truly guarantee that their territory will not be used for those purposes.
The second obligation under Security Council resolution 1373 (2001) is a more general requirement to enter into what might be described as a reporting and monitoring dialogue between States and a special committee
45 SC Res 1269, UN SCOR, 4053rd Mtg, UN Doc S/Res/1269 (1999).
of the Security Council established under the resolution, the Counter- Terrorism Committee. Paragraph 6 of the resolution provides as follows:
6. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council, consisting of all the members of the Council, to monitor implementation of this resolution, with the assistance of appropriate expertise, and calls upon all States to report to the Committee, no later than 90 days from the date of adoption of this resolution and thereafter according to a timetable to be proposed by the Committee, on the steps they have taken to implement this resolution;
Since resolutions 1368 (2001) and 1373 (2001), there have been further resolutions of the Security Council dealing with the issue of international terrorism.46 Recognizing the considerable burden upon States in the domestic implementation process following their party status to the 12 international conventions and in complying with resolution 1373 (2001), the Council tasked the Counter-Terrorism Committee with exploring ways in which States could be assisted.47 Resolution 1455 (2003) called upon UN member States to submit updated reports.48 New Zealand has so far submitted five reports to the Committee under resolutions 1373 (2001), 1455 (2003) and specific questions put to New Zealand by the Committee.49 Those reports are considered further in chapter 5 when discussing New Zealand’s implementing legislation on counter-terrorism.
46 Interestingly, though, the only resolution of the United Nations Security Council prior to September 11 and dealing with terrorism in the international context, rather than relating to and restricted to specific events, is SC Res 1189, UN SCOR, 3915th Mtg, UN Doc S/Res/1189 (1998). Although the resolution was adopted in response to the 1998 bombings in Nairobi, Kenya and Tanzania, it called upon all States “to adopt, in accordance with international law and as a matter of priority, effective and practical measures for security cooperation, for the prevention of such acts of terrorism, and for the prosecution and punishment of their perpetrators” (para 5).
47 SC Res 1377, UN SCOR, 4413rd Mtg, UN Doc S/Res/1377 (2001).
48 See SC Res 1452, UN SCOR,4678th Mtg, UN Doc S/Res/1452 (2002), and SC Res 1455,
UN SCOR, 4686th Mtg, UN Doc S/Res/1455 (2003). The latter resolution also concerns itself with further reporting by States to the Counter-Terrorism Committee.
49 Report to the Counter-Terrorism Committee pursuant to paragraph 6 of Security Council resolution 1373 (2001) of 28 September 2001, New Zealand, UN Doc S/2001/1269 (2002);
Supplementary report providing additional information on the measures taken by New Zealand to implement the provisions of Security Council resolution 1373 (2001), UN Doc S/2002/795 (2002); New Zealand response to the questions and comments of the Security Council Counter-Terrorism Committee contained in the Chairman’s letter of 30 May 2003, UN Doc S/2003/860 (2003); New Zealand response to the United Nations Security Council Counter-Terrorism Committee questions for response by 30 April 2004, UN Doc S/2004/359 (2004); and New Zealand national report to the United Nations Security Council Counter-Terrorism Committee, UN Doc S/2006/384 (2006).
As already noted, there is no unanimously agreed-upon definition of the term terrorism, nor does Security Council resolution 1373 (2001) define the term for the purpose of that resolution. Thus, in performing the various obligations pertaining to the suppression of terrorism under paragraphs 1 and 2 of the resolution, States have been left to define the term themselves.50 Other than ‘guidance’ through the question and answer process with the Council’s Committee, States have had to determine the means by which obligations are to be imposed. Varying definitions of the term have consequently been adopted from one jurisdiction to another.
Of some assistance is the fact that the United Nations, through the Committee, has undertaken a process by which it designates individuals or organisations as terrorist entities based upon information provided to it. The process concludes with the adoption by the Security Council of a resolution confirming such designation and requiring all member States to likewise designate such entities. The process is not formalised in any way. The Council is simply required to apply the normal trigger test for the making of any resolution under Chapter VII of the United Nations Charter: the Council must be satisfied that a situation poses a threat to international peace and security, in which case it can take any of the measures provided for within Articles 40 to 42 of the Charter (provisional measures, non- military sanctions, and enforcement measures). This topic is given further consideration in the context of the impact of the designation process upon natural justice rights in chapters 14 and 15.
One further issue arises from the Security Council’s resolution 1373 (2001) and its later resolution 1456 (2003).51 Adopted in January 2003, resolution 1456 (2003) calls upon the Counter-Terrorism Committee to intensify its efforts to promote the implementation of resolution 1373 (2001).52 It also contains the following provisions:
The Security Council therefore calls for the following steps to be taken:
50 Confirmed in discussions with the then Deputy Director of the Legal Division to the New Zealand Ministry of Foreign Affairs and Trade, Mr Julian Ludbrook, on the event of the 10th Annual Meeting of the Australian & New Zealand Society of International Law, 15 June 2002, Canberra.
51 SC Res 1456, UN SCOR, 4688th Mtg, UN Doc S/Res/1456 (2003).
52 Ibid, para 4 .
(a) become a party, as a matter of urgency, to all relevant international conventions and protocols relating to terrorism, in particular the 1999 international convention for the suppression of the financing of terrorism and to support all international initiatives taken to that aim, and to make full use of the sources of assistance and guidance which are now becoming available;
(b) assist each other, to the maximum extent possible, in the prevention, investigation, prosecution and punishment of acts of terrorism, wherever they occur;
(c) cooperate closely to implement fully the sanctions against terrorists and their associates, in particular Al-Qaeda and the Taliban and their associates, as reflected in resolutions 1267 (1999), 1390 (2002) and 1455 (2003), to take urgent actions to deny them access to the financial resources they need to carry out their actions, and to cooperate fully with the Monitoring Group established pursuant to resolution 1363 (2001);
The content of paragraph 1 and paragraphs 2(b) and 2(c), by themselves, do not cause any particular concern. Indeed, they are entirely consistent with earlier resolutions of the Council. It is paragraph 2(a), building upon paragraph 3(d) of resolution 1373 (2001), that raises some issues about the proper role of the Security Council.53 By calling upon States to become party to all counter-terrorist conventions and protocols, is the Council over- stepping its function and impinging upon State sovereignty?
This is an interesting constitutional question that warrants at least some consideration. On the one hand, member States of the United Nations have to some degree surrendered their sovereignty by becoming a party to the United Nations Charter, to the extent that they have agreed to be bound by decisions of the Security Council.54 At the same time, however, it could hardly have been intended by those becoming party to the Charter to grant the Security Council the authority to direct members in their treaty-making decision processes. A considerable number of States have involved constitutional rules concerning the executive’s treaty-making power which
53 Note that this provision is reflected with resolutions of the General Assembly, although such resolutions are expressly not binding by virtue of Article 10 of the Charter of the United Nations. See GA Res 56/88 (n 27) para 7; GA Res 57/27 (n 27) para 7; GA Res 58/81 (n 27) para 7; and GA Res 59/46 (n 27) para 9.
54 Article 25 of the Charter of the United Nations.
must be complied with before a State can ratify or accede to a treaty.55 Is the Security Council, by issuing the directions contained in paragraph 3(f) of resolution 1373 (2001) and paragraph 2(a) of resolution 1456 (2003), able to override such domestic constitutional safeguards?
Answering that question appears to lie in one further enquiry: whether any such resolution is indeed binding within the terms of Article 25 of the Charter. There appear to be two bases upon which this second question might be answered. The first is to consider whether the resolution has been made within the mandate of the Security Council, since the various powers given to the Council, conferred under Article 24, are so conferred to discharge its duties for the maintenance of international peace and security and for no other reason. Thus, if a resolution is not made for that purpose, the resolution would be made outside the authority of the Security Council and could not then be binding upon member States. In the context of the resolutions at hand, the subject matter concerns the suppression of terrorism which, as repeatedly stated by both the Security Council and General Assembly, is seen as one of the most serious threats to peace and security. Resolutions 1373 (2001) and 1456 (2003) were made, it is therefore concluded, within the proper authority of the Security Council.
The second consideration is whether the provisions at hand are “decisions” within the meaning of Article 25 of the Charter, which provides that:
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.
The answer turns on whether exhortatory provisions constitute “decisions” within the meaning of Article 25 and, in turn, whether the provisions at hand are exhortatory. This issue was considered by the International Court of Justice in the Namibia Advisory Opinion, where the Court took the position that a resolution couched in non-mandatory language should not be taken as imposing a legal duty upon a member State.56 Turning to the paragraphs in issue, if the Security Council “calls upon States” to become party to counter-terrorism treaties, is this mandatory or exhortatory? The phrase is certainly not as forceful as “all States shall/must”, but it is at the same time more compelling than “requesting” or even “strongly encouraging” States to do so.57
55 In the case of New Zealand see, infra, chapter 4.
56 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1990), (1970-1971), Advisory Opinion of the International Court of Justice of 21 June 1971, 53.
57 Both terms/phrases being commonly used in Security Council resolutions.
Bearing in mind that the more forceful terms “shall” or “must” were not used (whereas they were used within other provisions of the resolutions) and that the provisions concern the treaty-making process (a matter that has always been regarded as within the sole purview of State executives), it is posited that a restrictive interpretation must be given to the provisions. The provisions must be seen as exhortatory and, following the Namibia Advisory Opinion, do not impose a legal duty upon States to become signatories to the various international counter-terrorism conventions.
In the case of New Zealand, this discussion is somewhat academic. Prior to September 11, New Zealand was party to eight of the 13 conventions, excluding the Convention on the Marking of Plastic Explosives for the Purpose of Detection,58 the Convention on the Physical Protection of Nuclear Material,59 the International Convention for the Suppression of Terrorist Bombing60 and the International Convention for the Suppression of the Financing of Terrorism.61 New Zealand is now party to all twelve conventions and protocols currently in force. It is nevertheless an interesting point to note in the dynamics between the United Nations and its organs with members of the organisation. Whether New Zealand would have ratified all outstanding conventions, even absent the provisions of resolution 1456 (2003), is moot – although its first report to the Counter- Terrorism Committee indicated that it had already intended to do so.62
Notable terrorist events since September 11 have drawn the condemnation of the Security Council and prompting it to reiterate its earlier resolutions, including the bomb attacks in Bali, Indonesia on 12 October 2002;63 the taking of hostages in Moscow, the Russian Federation, on 23 October 2002;64 the bombing of the Paradise Hotel in Kikambala, Kenya and the attempted missile attack on Arkia Israeli Airlines flight 582 departing
58 New Zealand had neither signed nor ratified the convention by this time. 59 New Zealand had neither signed nor ratified the convention by this time. 60 New Zealand had neither signed nor ratified the convention by this time.
61 New Zealand had signed the convention on 7 September 2000, but not yet ratified.
62 Report to the Counter-Terrorism Committee pursuant to paragraph 6 of Security Council resolution 1373 (2001) of 28 September 2001, New Zealand, 2 January 2002, S/2001/1269,
16. This report predates United Nations Security Council Resolution 1456 by approximately twelve months.
63 See SC Res 1438, UN SCOR, 4624th Mtg, UN Doc S/Res/1438 (2002).
64 See SC Res 1440, UN SCOR, 4632nd Mtd, UN Doc S/Res/1440 (2002).
Mombasa, Kenya (al-Qaida claiming responsibility for those acts);65 the bombing in Madrid, Spain on 11 March 2004;66 and the London bombings of July 2005.67
With these events in mind, the Counter-Terrorism Committee (CTC) has undergone revitalisation under Security Council Resolution 1535 (2004).68 The Committee’s reform has been implemented to give it further means to fulfil its mandate of monitoring the implementation of resolution 1373 (2001). The Committee now consists of two main organs. The first, the “Plenary”, is composed of the Security Council member States and acts to monitor the second part of the Committee and provide it with policy guidance. The functional part of the Committee is the “Bureau” composed of the Chair and Vice-Chairs of the Security Council and a renamed “Counter-Terrorism Committee Executive Directorate” (which comprises, in real terms, those members of the CTC that had worked in the Committee up to its restructuring).69 Of significance to the interface between counter- terrorism and human rights, the Executive Directorate has an officer dedicated to the subject of the promotion and protection of human rights while countering terrorism.70
65 See SC Res 1450, UN SCOR, 4667th Mtg, UN Doc S/Res/1450 (2002).
66 See SC Res 1530, UN SCOR, 4932nd Mtg, UN Doc S/Res/1530 (2004). The Resolution
records the ETA as having perpetrated the bombing, on advice of the Spanish Government to this effect: see para 1. It has subsequently been established that the bombing was undertaken by a mixture of Spanish, Moroccan and Syrian nationals with suspected links to al-Qaida: see, for example, ‘Madrid Bombing Suspects’, BBC News UK Edition, URL
<http://news.bbc.co.uk/1/hi/world/europe/3560603.stm> (last accessed on 12 March 2005). The ETA, Ezukadi Ta Askatasuna (roughly translated as “Basque Fatherland and Liberty”) was founded in 1959 with the aim of establishing an independent homeland in the northern Spanish provinces based on Marxist principles and operating primarily in the Basque autonomous regions of northern Spain and south-western France: see Appendix A “Background Information on Designated Foreign Terrorist Organizations” in Howard RD and Sawyer RL (eds), Terrorism and Counterterrorism. Understanding the New Security Environment (Revised and Updated), The McGraw-Hill Companies (2003), 507.
67 See SC Res 1611, UN SCOR, 5223rd Mtg, UN Doc S/Res/1611 (2005)
68 SC Res 1535, UN SCOR, 4936th Mtg, UN Doc S/Res/1536 (2004). It should be noted, however, that the proposal to revitalise the Committee pre-dated the Madrid Bombing: see United Nations Information Service, ‘Security Council Considers Proposal to Revitalize Counter-Terrorism Committee’, 5 March 2004, SC/8020. Interestingly, the Council was
briefed on the work of the Counter-Terrorism Committee by the CTC’s former Chairman, Inocencio Arias, Permanent Representative of Spain to the United Nations.
69 A very useful web site has been established by the Counter-Terrorism Committee,
explaining the mandate, practices and assistance programme of the Committee and containing State reports to the Committee and other useful documents and papers: see URL
<http://www.un.org/Docs/sc/committees/1373> .
70 On the question of the role of human rights in the review by the Security Council Counter-Terrorism Committee of State reports, see the report of the UN Special Rapporteur
5. The Counter-Terrorism Implementation Task Force
As the executive head of the United Nations, the Secretary-General has commented upon counter-terrorism and human rights within various documents, press releases and meetings. The most prominent and recent of those is his report entitled Uniting Against Terrorism, in which he identified the defence of human rights as having a central role in the fulfilment of all aspects of a counter-terrorism strategy.71 In 2005, the Secretary-General established a Counter-Terrorism Implementation Task Force (CTITF), comprised of representatives from various offices and agencies within the United Nations system and making up subject-specific Working Groups.72 The CTITF was established with the aim of ensuring a coordinated and coherent effort across the United Nations system to counter international terrorism.73 It has compiled an Online Handbook that explains the activities of the Task Force and also provides information on and access to existing counter-terrorism resources available through the UN system.74
Customary International Law Relating to Counter-Terrorism
Moving from treaties and mechanisms established under them, including UN action, the relevance of customary international law should next be acknowledged. Customary law is relevant to the fight against terrorism in two situations: first, concerning the customary law reflections of the
on the promotion and protection of human rights while countering terrorism, Martin Scheinin, The Protection and Promotion of Human Rights While Countering Terrorism, UN Doc E/CN.4/2006/098(2005), Chapter IV.
71 Report of the Secretary-General, Uniting Against Terrorism: Recommendations for a
Global Counter-terrorism Strategy, UN Doc A/60/825 (2006), paragraph 5. See also Part VI of the Report.
72 There are currently seven Working Groups, tasked with consideration of the following: improving information sharing and technical assistance; streamlining reporting mechanisms; preparing and coordinating CBRN (biological, chemical, nuclear and radiological) response; controlling terrorist use of conventional weapons; defending human rights while countering
terrorism; protecting the rights and addressing the grievance of victims of terrorist acts; and defending soft targets and responding to their attacks.
73 For further information on the Counter-Terrorism Implementation Task Force, see UN
Action to Counter Terrorism, ‘Coordinating counter-terrorism actions within and beyond the UN system’, online: <http://www.un.org/terrorism/cttaskforce.html> (last accessed 15 April 2007).
74 Available online at URL <http://www.un.org/terrorism/cthandbook/> (last accessed 15 April 2007).
Geneva Conventions; and, secondly, concerning the statement and restatement by the UN General Assembly of the Declaration on Measure to Eliminate International Terrorism.
As to the Geneva Conventions, it is well accepted that the Conventions have now come to reflect equivalent norms of customary international law. The Geneva Conventions prohibit violence to life, in particular murder, mutilation, cruel treatment and torture, and the taking of hostages.75 Of more specific relevance, Article 13(2) of the First Optional Protocol states that:76
The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
Turning to the Declaration on Measure to Eliminate International Terrorism, it has already been discussed in this chapter that the Declaration was adopted by the General Assembly in 1994, added to by a Supplement in 1996, and continually restated and confirmed by the General Assembly on an annual basis. As also discussed, however, although these resolutions are compelling and strongly worded (despite their lack of a definition of the term ‘terrorism’) they are not, in and of themselves, binding upon members of the United Nations. Article 10 of the UN Charter specifically dictates that resolutions of the General Assembly are recommendatory only.
At first instance, then, the utility and relevance of the Declarations may seem lacking, particularly from a domestic law perspective. There is, however, a means through which the contents of the Declarations might influence or inform municipal courts. Although resolutions of the Assembly are not, by virtue of Article 10, binding upon members of the United Nations, they might nevertheless constitute prima facie evidence of customary international law. If the Declarations do indeed reflect the
75 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 32 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 136 (entered into force 21 October 1950); and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 288 (entered into force 21 October 1950).
76 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 4 (entered into force 7 December 1978).
content of customary international law, they are binding in domestic law without any act of transformation.77
In brief terms, customary international law comprises two elements: a corpus (a custom or practice that has evolved over time) and an animus (a sense on the part of the participants in the custom that they act in they way they do because they are legally bound to – opinio juris sive necessitatis).78 Custom must take the form of State conduct. It must be uniform and consistent to a degree that the core of the State practice exhibits these characteristics.79 The practice must have a sufficient number of participating States so that it can be said to be generally applied.80 It must normally also have existed for a period of time so that it may indeed be called a ‘custom’.81 Most importantly, it must be exercised through a sense of legal obligation, rather than merely for political expedience or convenience.82
Whether or not the General Assembly Declarations are reflective of customary law is therefore dependent on whether they mirror actual State practice, where such practice is undertaken through a sense of legal obligation. If one considers the various State reports lodged with the Security Council Counter-Terrorism Committee, assuming that those reports mirror actual conduct, one can see that there has been a reasonable level of consistency between State conduct and the various principles enumerated in the Declarations.83 Furthermore, the repeated adoption of the principles tends to point towards a practice of duration, from 1994 to the present, albeit that this is reasonably brief in the normal life of the emergence of customary law. In terms of generality, however, although all members of the United Nations have reported to the Committee, they have not all adopted counter-terrorist measures within the terms recommended
77 See further, infra, chapter 4.
78 Ian Brownlie, Principles of Public International Law (6th edition, Oxford University Press, 2003) 6-9.
79 See, for example, the judgment of the International Court of Justice in the Asylum Case (Colombia v Peru) (1950) ICJ Reports 266, 276-277.
80 See, for example, the judgment of the International Court of Justice in the Fisheries Jurisdiction Case (United Kingdom v Iceland) (1974) ICJ Reports 3, 23-26.
81 Although it should be said that if the other two aspects of consistency and generality are found in strong measure, the requirement for duration is not as important: see North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) (1969) ICJ Reports 3, para 74.
82 See, for example, the Lotus Case, Permanent Court of International Justice, Ser. A, no. 10,
28, and the North Sea Continental Shelf Cases, ibid, para 71.
83 State reports to the Committee are available online at URL <http://www.un.org/Docs/sc/ committees/1373/reports.html> .
by the Declarations.84 In determining whether the elements of generality and opinio juris are satisfied, therefore, one would need to undertake a very close and careful analysis of the State reports and the actual status and use of counter-terrorist legislation within each reporting State.
This is not an issue that will be taken any further in this book for two reasons. First, such an examination would need to be extensive to produce any determinative findings. Second, the value of such findings would add little to the thesis of this text. In general terms, the principles within the Declarations are mirrored within the Security Council resolutions discussed and within the international conventions on terrorism to which New Zealand is a party. Through incorporating legislation, those obligations have become part of municipal law. The Declarations therefore add little, in practical terms, to the manner in which New Zealand’s domestic law on counter-terrorism is to be applied by the judiciary.
New Zealand’s Role in International Counter-Terrorism
The chapter thus far has looked at the various sources of international counter-terrorism obligations. Chapters 4 and 5 will consider the means by which those obligations can be and have been implemented into domestic law in New Zealand. Before doing so, it is relevant to consider New Zealand’s role in the countering of international terrorism.
A view often repeated in submissions to the New Zealand Foreign Affairs, Defence and Trade Committee on the Terrorism Suppression Bill was that there was no need for New Zealand to adopt counter-terrorist legislation. From a regional perspective, Pacific Island States85 have not been subject to, or had to deal directly with, international terrorism – other
84 Take for example, Fiji, who reported to the Committee in 2002 and 2003, but only recently announced in 2004 that it was preparing counter-terrorism legislation: see Report of the Government of Fiji pursuant to paragraph 6 of Security Council resolution 1373 (2001) of 28 September 2001, 4 June 2002, S/2002/616, and Fiji’s second round of responses based on the letter dated 8 August 2002, 25 April 2003, S/2003/481; and compare with Shaista Shameem, ‘Tension Between Anti-Terrorism Laws and Human Rights’ (presentation at the public workshop, How Should Fiji Respond to the Threat of Terrorism?, hosted by the Citizens’ Constitutional Forum and the Fiji Human Rights Commission, 17 July 2004, Suva, Fiji).
85 For the purpose of this chapter, Pacific Island States are limited to those members of the
Pacific Forum, being: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand (incorporating the non-self governing territory of Tokelau), Niue, Palau, Papua New Guinea, Republic of the Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu. This excludes French Polynesian States and American Samoa, being States that are governed by France and the United States respectively.
than the bombing by French military agents of the Rainbow Warrior in New Zealand in 1985. That position is simplistic, at best, and there are various reasons why New Zealand should and must adhere and contribute to the international framework for countering terrorism.
International Obligations
The most simple reason for the relevance of, and need for, counter-terrorist action by New Zealand is that such action is an obligation at international law. The conventions, protocols and resolutions discussed within this chapter form the basis of obligations at international law and directions by international agencies which must be acted upon by New Zealand.
At the thirty-third Pacific Island Forum in Fiji, New Zealand being a member of the Forum, Forum Leaders adopted the Nasonini Declaration on Regional Security.86 The Declaration underlined the commitment of Forum Leaders to the implementation of internationally agreed anti-terrorism measures, with express reference to resolution 1373 (2001), and tasked the Forum Regional Security Committee to review the regional implementation of the resolution.87
Terrorist Acts in the South Pacific
Having said that the Rainbow Warrior bombing was the only incident of international terrorism within the South Pacific, it should be recognized that this statement is dependent on what definition of terrorism is adopted. Certainly, it is the only international terrorist act occurring within the Pacific. On 10 July 1985, French military agents Mafart and Prier bombed and sank the Greenpeace flag-ship the Rainbow Warrior in the Auckland harbour port, resulting in the death of a Greenpeace activist on board the vessel. The bombing took place just days before the Rainbow Warrior was to undertake a protest voyage to the French nuclear test site at Moruroa Atoll.88
86 Thirty-Third Pacific Islands Forum, Suva, Fiji Islands, 15-17 August 2002, Forum Communiqué, Annex 1, ‘Nasonini Declaration on Regional Security’.
87 Ibid, paras 5 and 9.
88 Greenpeace, ‘The Bombing of the Warrior’, URL <http://archive.greenpeace.org/comms/ rw/pkbomb.html> (last accessed on 16 September 2004). Mention might also be made to
other incidents (which may, or may not, be considered to amount to terrorist acts, depending on the definition adopted) within New Zealand. For example, on 18 November 1982, Neil Roberts carried and exploded a gelignite bomb in the entrance to the Wanganui police computer, said to have been perpetrated to advance his anarchist beliefs: see
<http://cw178.tripod.com/neil1.htm> (last accessed on 6 July 2005). Two years later, there
In addition, Simpson points to various national acts of terrorism within the Pacific.89 In New Caledonia in the 1980s, the Kanak Socialist National Liberation Front (FLNKS) was denounced as a separatist terrorist movement.90 It subsequently formed part of the coalition government in 2001 and is now the main opposition party in New Caledonia.91 The Fiji coups of 1987 and 2000 have likewise been classified as terrorist events,92 although they might more properly be categorized as internal civil conflicts. The ‘civil conflict’ in the Solomon Islands during 2000, in contrast, has been said to include terrorist conduct on the part of both main factions, the Malaita Eagles Force and the Isatabu Freedom Movement.93
The Risk of Terrorism in the South Pacific
There appears to be a commonly-held view that the likelihood of terrorist acts being perpetrated within the Pacific is remote, such that counter- terrorism should remain at the low-end of priorities for the region. While this risk assessment might well be correct, there are various factors that count in favour of a more proactive approach, from even a purely self- serving perspective. As evident from the foregoing discussion, the South Pacific has been subject to terrorist incidents in the past, however defined. Regard should also be had to the possibility and consequences of a direct attack. Of particular relevance to a number of Pacific Island States, as States reliant upon the export of commodities such as dairy, meat and fruit,94 is the bio security of those States. This is a matter dealt with
was a bomb attack at the Wellington Trade Union Centre, in which one person was killed: see Submissions of the Socialist Workers’ Organisation to the Foreign Affairs, Defence and Trade Committee on the Terrorism Suppression Bill at URL <www.converge.org.nz> (last accessed on 6 July 2005).
89 Simpson S, ‘A Brief History of Terrorism in the South Pacific’ (presentation at the public workshop, How Should Fiji Respond to the Threat of Terrorism?, hosted by the Citizens’ Constitutional Forum and the Fiji Human Rights Commission, 17 July 2004, Suva, Fiji).
90 Ibid.
91 Electionworld.org, ‘Elections in New Caledonia’, URL <http://www.electionworld.org/ newcaledonia.htm> (last accessed on 16 September 2004).
92 Simpson (n 89).
93 Ibid.
94 By way of example, Statistics New Zealand identifies exports for the years ended June 2001, 2002 and 2003 to be as follows: milk powder, butter and cheese at $(million) 5,790
(2001), 5,891 (2002) and 4,679 (2003); meat and edible offal at $(million) 4,182 (2001),
4,429 (2002) and 4,112 (2003); logs, wood and wood article at $(million) 2,192 (2001),
2,378 (2002) and 2,386 (2003); fish, crustaceans and molluscs at $(million) 1,374 (2001),
1,402 (2002) and 1,032 (2003); and fruit at $(million) 1,045 (2001), 1,159 (2002) and 1,032 (2003): see Statistics New Zealand online information ‘Quick Facts – Economy’, URL
primarily under the domestic legislation of each State including, for example, the Biosecurity Act 1993 in New Zealand. New Zealand recently took steps towards including bioterrorism as an offence under its domestic law, effected through the Counter-Terrorism Bill 2003.95
Despite its geographical isolation, the reality of the contemporary world is that globalisation has dissolved distances that may have once protected the Pacific Islands. Transport and communications systems, access to the internet, and more efficient means of moving people and money, mean that it is easier for the world to interact with the Pacific.96 Individuals thought to be connected with al-Qaeda have been reported to have been present in New Zealand, Australia and Fiji.97 Pacific Forum Secretary General, Greg Urwin, adds that while terrorists may not seek to attack citizens and institutions of Pacific countries, the region might prove to be a tempting target, either for an attack like the one in Bali in October 2002, or as a base or staging point from which terrorist cells might undertake planning for an attack elsewhere.98 The New Zealand Security Intelligence Service recently reported, for example, that Islamic extremists with links to international terrorist organizations are likely to be operating in New Zealand:99
From the Service's own investigations we assess that there are individuals in or from New Zealand who support Islamic extremist causes. The Service views these developments, most of which have come to attention within 2003/04, with considerable concern. They indicate attempts to use New Zealand as a safe haven from which activities of security concern elsewhere can be facilitated and/or the involvement of people from New Zealand in such activities.
<http://www.stats.govt.nz/domino/external/web/nzstories.nsf/htmldocs/Quick+Facts+Econo my> (last accessed on 17 September 2004).
95 The Bill saw, in its final form, amendment of the Crimes Act 1961 to include new sections 298A and 298B, making it an offence to contaminate food, crops, water or other products.
96 Urwin G, ‘The Need for Anti-Terrorism Legislation in Fiji’ (presentation at the public workshop, How Should Fiji Respond to the Threat of Terrorism?, hosted by the Citizens’
Constitutional Forum and the Fiji Human Rights Commission, 17 July 2004, Suva, Fiji), para 8.
97 Ibid, para 9. Anecdotal reports are that one of the September 11 hijackers spent a considerable time living in Fiji up until six months prior to the World Trade Centre attacks.
98 Ibid, para 10.
99 New Zealand Security Intelligence Service, Report to the House of Representatives for the year ended 30 June 2004, presented to the House of Representatives pursuant to section 4J of the New Zealand Security Intelligence Service Act 1969, 11.
Supporting an International Framework on Counter-Terrorism
One of the most important points to make is a relatively simple one, although the consequences of it are wide-ranging. The international conventions and protocols, reinforced by customary law and resolutions of the General Assembly, and added to by Security Council resolutions, create an ‘international framework’ for countering terrorism. A considerable measure of their effectiveness lies in the universal adoption and implementation of the obligations under that framework in order to prevent any State being either targeted by terrorists or used by them as a base of operations (whether that be the establishment of physical training camps or the laundering of money to fund activities of terrorist organisations).
Following the train bombing in Madrid on 11 March 2004, in which nearly 200 people were killed, Spain’s Ambassador to the United Nations (who also chaired the Security Council Counter-Terrorism Committee) criticised unnamed nations for a “lack of effort” in countering terrorism.100 The point was also later made by the former US Ambassador to the United Nations John Danworth:101
[The Counter-Terrorism Committee] must never forget that so long as a few states are not acting quickly enough to raise their capacity to fight terrorism or are not meeting their international counterterrorism obligations, all of us remain vulnerable.
The question is no longer one of domestic security in order to prevent attacks from occurring within a State’s own borders and, in doing so, assessing the risks of such attacks and the appropriate measures in response. Although those assessments and corresponding national security interests remain, effective counter-terrorism requires – to achieve international security and in light of the manner in which terrorists and terrorist organisations operate – that all States prevent and preclude terrorist conduct and preparations. A high level of threat posed to a State might cause that State to impose measures above those required by the international framework, but the reverse does not apply. Even if it is accepted that New Zealand does not bear any substantial risk of being the subject of a terrorist attack, its role in combating international terrorism through the implementation of the obligations set out in this chapter are equal to all other States.
100 United Nations Foundation, ‘Spanish Diplomat Blames Nations for “Lack of Effort” on Terrorism’, UN Wire, 12 March 2004, online: <http://www.unwire.org/UNWire> .
101 United Nations Foundation, ‘Counterterrorism Cooperation Improving, Security Council Told’, UN Wire, 20 July 2004, online: <http://www.unwire.org/UNWire> .
All of these various points are reiterated on the website of the New Zealand Security Intelligence Service:102
The terrorist threat to New Zealand is low, but it cannot be discounted. The country learned at the time of the Rainbow Warrior bombing that relative geographic isolation, in itself, is no guarantee of immunity. The events in the United States on 11 September 2001 confirmed that terrorism is an international phenomenon and terrorists consider the world their stage when they look for a way to advance their cause.
There are individuals and groups in New Zealand with links to overseas organisations that are committed to acts of terrorism, violence and intimidation. Some have developed local structures that are dedicated to the support of their overseas parent bodies. There are also isolated extremists in New Zealand who advocate using violence to impress on others their own political, ethnic or religious viewpoint.
But the threat of terrorism could come equally from beyond New Zealand. Modern transport and communication have effectively made the world a smaller place. Events such as a visit by and overseas dignitary, or a major international gathering may be seen by off-shore terrorists as providing the opportunity to do something spectacular to capture world wide publicity, or to otherwise further their cause.
There is also the risk that individuals or groups may use New Zealand as a safe haven from which to plan or facilitate terrorist acts elsewhere.
Conclusion
International law on counter-terrorism is principally based upon treaty law and the action of various agencies of the United Nations. Thirteen quite specific conventions exist and apply with the aim of protecting potential targets of terrorist conduct, or suppressing access to the means by which terrorist acts are perpetrated or funded. They do not, however, have general application and are limited in their binding nature to States parties. Having said this, the Suppression of Financing Convention does have potentially wider application in its description of conduct that may not be financed. Both the General Assembly and Security Council have issued numerous resolutions on the topic of counter-terrorism. Although resolutions of the General Assembly are not binding, the General Assembly has built on various guiding principles and expectations in its declarations on measures to eliminate international terrorism. The Security Council
102 New Zealand Security Intelligence Service website, Protecting New Zealand from Terrorism, online: <http://www.nzsis.govt.nz/work/work.html> (last accessed on 16 November 2004).
established a Counter-Terrorism Committee very soon after the terrorist attacks of September 11, 2001, with the role of liaising with UN members on the implementation of resolution 1373 (2001) and the 13 counter- terrorism conventions, as well as to provide means by which States could be assisted in doing so. The Council has imposed various specific obligations upon States under resolutions 1373 (2001) and 1456 (2003).
New Zealand, as a party to the terrorism-related conventions in force, has accepted its part in establishing an international legal framework on counter-terrorism. This, combined with the obligations under the relevant Security Council resolutions and the principles enumerated within comparative General Assembly resolutions, places the issue beyond one of domestic security. These obligations form part of an international framework to counter terrorism, so that the question of implementation is not necessarily concerned with the particular terrorist threats faced by New Zealand, but rather with New Zealand’s contribution to and participation in establishing an effective international framework.
Chapter 4
The Implementation of Counter-Terrorism Obligations
Considered within the preceding chapter were the various sources of international counter-terrorism obligations. This and the next chapter will examine the domestic legislation through which those obligations have been implemented by New Zealand, as well as legislation that exists outside the scope of those obligations. The focus of this chapter is to first consider the means by which New Zealand’s international counter- terrorism obligations have been implemented which, as will be seen, depends on the nature, scope and source of the international obligation.
Modes of Implementation
New Zealand’s counter-terrorism obligations exist through various sources of international law: through customary international law; through New Zealand’s membership of the United Nations; and as a State party to the 12 international conventions related to terrorism that are currently in force. Each source of law displays different means of implementation and obligation. In turn, those different means of implementation bear upon the way in which domestic courts can deal with the application of the law.
It is useful to briefly note, at this stage, the divergent views on the status of international law norms in domestic law. As explained by Professor Ian Brownlie, there are two theories on the relationship between municipal and international law.1 The ‘dualist theory’ posits that international and domestic laws operate in entirely separate systems, and is largely based upon the notion of State sovereignty: the principle that a State has the right to perform governmental actions to the exclusion of all others within its territory.2 Dualists distinguish international law from municipal law by three principal means. First, the subjects of international law are
1 Ian Brownlie, Principles of Public International Law (6th edition, Oxford University Press, 2003) 31-53.
2 As defined by Arbitrator Huber in the Island of Palmas Case, United Nations, 2 Reports of International Arbitral Awards 829, 858-859.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
sovereign States, while in municipal law both individuals and the State enjoy legal personality. Next, the sources of international law are founded on the notion of the equality of its subjects (States), whereas domestic law is derived from the parliamentary authority of the State giving rise to the domestic constitutional notion of parliamentary sovereignty. Finally, the inter-State structure of international law is different from the intra-State implementation and enforcement of domestic law. On those bases, dualist exponents such as Triepel and Strupp hold that international law is an inferior source of law and therefore does not apply at the national level unless there has been some act on the part of the State transforming the international norm into a domestic one.3
In contrast to the dualist theory, the ‘monist theory’ on the reception of international obligations in domestic law holds that there is one, all- embracing legal order, comprising both international and domestic law. Hersch Lauterpacht, one of the more forceful and practical proponents of monism, argues that it is impossible for two norms with separate bases to be valid at the same time in the same territory.4 Indeed, he effectively turns the dualist approach on its head and proposes that international law employs domestic law to govern human affairs. That is, the idea that the State is purely a vehicle used by individuals to represent their interests in the international community (by extension of the idea of the social contract by which the State is empowered to govern its people) so that when the ‘State’ does something at international law, it is simply acting under the authority given to it by those individuals. Under the monist view there is no need to transform an international law rule into a domestic one.
Turning from theory to practice, it is interesting that differing domestic courts adopt alternative approaches, depending upon the particular source of the international law obligation. New Zealand is no different. In the context of treaties, the courts take the dualist view that provisions of an international treaty are not applicable unless there has been some act of incorporation. As has been evidenced through a long line of authority in New Zealand courts concerning the doctrine of sovereign immunity, on the other hand, norms of customary international law need no act of transformation to be received by the courts.5 New Zealand courts therefore adopt a monist approach to norms of customary international law.
3 Triepel, Völkerrecht und Landesrecht (1899), and Strupp, Eléments (2nd edition, 1930), as cited by Brownlie (n 2), 31 n 2.
4 See, by way of example, Lauterpacht H, International Law and Human Rights (London:
Stevens, 1950).
5 See Marine Steel v Government of the Marshall Island [1981] 2 NZLR 1, 9-10, in which Barker J recognised, in an obiter statement, the relevance of the customary international law
Customary International Law
International obligations concerning terrorism are not restricted to treaties and resolutions of the United Nations, but also include customary international law. This is of potential relevance in two situations: first, concerning the customary law reflections of the Geneva Conventions; and, secondly, concerning the practice of States since 9/11 in response to Security Council and General Assembly resolutions. The latter is considered within the next section of this chapter in which United Nations action is examined.
The customary international law norms reflected within the Geneva Conventions include the prohibition against acts or threats of violence, the primary purpose of which is to spread terror among the civilian population
– Article 13(2) of the First Protocol.6 What should be noted at this stage is that there is no corresponding domestic law provision in New Zealand. New Zealand is a party to all four Geneva Conventions and its two Protocols,7 and has ‘incorporating legislation’ through the Geneva Conventions Act 1958. However, the Act only prohibits what are known as “grave breaches” of the Conventions or First Protocol under section 3(1). Subsection (2) sets out which provisions of the Conventions or First Protocol result in “grave breaches”, but this does not include breach of Article 13(2) of the First Protocol.
rule of sovereign immunity and that no special act of transformation was required in the application of such rules by New Zealand courts. In Reef Shipping v The Ship “Fua Kavenga” [1987] 1 NZLR 550, 569 in which Smellie J applied the doctrine in New Zealand. The New Zealand Court of Appeal also applied the doctrine in Governor of Pitcairn and Associated Islands v Sutton [1994] NZCA 277; [1995] 1 NZLR 426, Cooke P referring to the doctrine as part of “common law, reflecting international law” (428).
6 Article 13(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 4 (entered into force 7 December 1978). On the relationship between terrorism and international humanitarian law see further, infra, chapter 2.
7 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 32 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention
Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 136 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 288 (entered into force 21 October 1950); Protocol I, ibid; and the Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of
The customary norm reflected in Article 13(2) is thus not reflected within New Zealand’s domestic legislation. As a norm of customary international law, however, it is applicable at domestic law without any act of transformation. This, as explained in the foregoing section, is as a result of the application in New Zealand of a monist approach to the reception of customary international law.
Having established that the customary law reflection of Article 13(2) is applicable in New Zealand law, it is next necessary to consider what the significance of this prohibition is. The significance is two-fold. First, as a customary and treaty obligation at international law, the New Zealand State is prohibited from undertaking such acts or threats. Second, the description of prohibited conduct within Article 13(2) is a norm of customary law that is directly applicable by New Zealand’s courts. Before taking either point any further, however, it should be noted that the First Protocol is not framed in general terms. Its full title is the “Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts” (emphasis added). Thus: (1) the New Zealand State is prohibited from engaging in such conduct when involved in an international armed conflict; and (2) although capable of direct application in domestic law by New Zealand courts, this norm would be restricted in its use to consideration by the courts of the conduct of a person or agency involved in an international armed conflict.
The only potentially wider utility of the norm would lie in a willingness by the New Zealand courts to interpret legislation concerning counter- terrorism in a manner that is consistent with the prohibition: a prohibition against acts or threats of violence, the primary purpose of which is to spread terror among the civilian population. On the question of the definition of terrorism under New Zealand law, see chapter 16.
United Nations Action
Both the United Nations General Assembly and Security Council have been active in adopting resolutions concerning the combating of terrorism. Consideration has already been given to the General Assembly’s 1994 Declaration on Measures to Eliminate International Terrorism, and its Supplement, and the possibility that this might be representative of
customary international law. That matter is taken no further here.8 The focus of this part of the chapter is upon resolutions of the Security Council.
Two resolutions of the UN Security Council have been identified as imposing obligations upon member States of the United Nations concerning counter-terrorism: resolutions 1269 (1999) and 1373 (2001).9 As also discussed within chapter 2, resolutions of the Security Council are binding upon members of the United Nations by virtue of Article 25 of the Charter of the United Nations.
It must be determined, therefore, whether the resolutions in question are “decisions of the Security Council” within the terms of Article 25. If so, then their provisions must be complied with by New Zealand, and consideration of the nature of the obligations and means of compliance will then need to be had. If the resolutions, or parts of them, are not binding under Article 25, then different considerations will result. It was concluded within chapter 2 that (1) the resolutions were made within the proper mandate of the Security Council under Article 24 and Chapter V of the UN Charter; and (2) whether a particular provision of a resolution is a “decision” within the meaning of Article 25 turns on whether the provision uses exhortatory or mandatory language.10
The result of the latter analysis, as well as the nature of the provisions at hand, is that the obligations under resolutions 1269 (1999) and 1373 (2001) fall within three categories: binding obligations; non-binding directions; and non-binding reporting obligations.
Non-Binding Reporting Regime
Under Security Council resolution 1373 (2001), the Security Council established what the writer describes as a reporting and monitoring dialogue between UN members and the Counter-Terrorism Committee:11
Decides to establish, in accordance with rule 28 of its provisional rules of procedure, a Committee of the Security Council, consisting of all the members of the Council, to monitor implementation of this resolution, with the
Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 610 (entered into force 7 December 1978).
8 See, infra, chapter 3.
9 SC Res 1269, UN SCOR, 4053rd Mtg, UN Doc S/Res/1269 (1999); and SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001).
10 Applying the decision of the International Court of Justice in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa)
notwithstanding Security Council Resolution 276 (1990), (1970-1971), Advisory Opinion of the International Court of Justice of 21 June 1971, 53.
11 SC Res 1373 (n 8) para 6.
assistance of appropriate expertise, and calls upon all States to report to the Committee, no later than 90 days from the date of adoption of this resolution and thereafter according to a timetable to be proposed by the Committee, on the steps they have taken to implement this resolution;
New Zealand has so far submitted five reports to the Counter-Terrorism Committee under the procedure initiated under resolution 1373 (2001).12 The reports contend that New Zealand is now fully compliant with its international counter-terrorism obligations. The accuracy or otherwise of that contention is considered within the examination of various items of New Zealand legislation, in chapter 5, and within the following discussion on the binding substantive provisions of resolution 1373 (2001).
Binding Obligations
Despite its status as a resolution of the UN Security Council, resolution 1269 (1999) contains no binding substantive obligations, which reflects the increased attention paid to counter-terrorism since September 11. Two of those non-binding directions, however, transformed into mandatory obligations within resolution 1373 (2001). The first of those relates to the prevention and suppression of the financing of terrorism,13 which became the subject of detailed attention within paragraphs 1 and 2 of resolution 1373 (2001). The second concerns the apprehension, prosecution or extradition of those who plan, finance or commit terrorist acts,14 now the subject of attention within paragraph 2 of resolution 1373 (2001). The entirety of the binding substantive obligations is contained within paragraphs 1 and 2 of resolution 1373 (2001).15
These binding obligations were implemented into New Zealand law under the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001, by Order in Council on 26
12 Report to the Counter-Terrorism Committee pursuant to paragraph 6 of Security Council resolution 1373 (2001) of 28 September 2001, New Zealand, UN Doc S/2001/1269 (2002); Supplementary report providing additional information on the measures taken by New Zealand to implement the provisions of Security Council resolution 1373 (2001), UN Doc S/2002/795 (2002); New Zealand response to the questions and comments of the Security Council Counter-Terrorism Committee contained in the Chairman’s letter of 30 May 2003, UN Doc S/2003/860 (2003); New Zealand response to the United Nations Security Council Counter-Terrorism Committee questions for response by 30 April 2004, UN Doc S/2004/359 (2004); and New Zealand national report to the United Nations Security Council Counter-Terrorism Committee, UN Doc S/2006/384 (2006).
13 SC Res 1269 (n 8) para 4 (second unnumbered subparagraph).
14 SC Res 1269 (n 8) para 4 (third unnumbered subparagraph).
15 See, infra, chapter 2.
November 2001 under the United Nations Act 1946. As indicated by New Zealand to the Counter-Terrorism Committee in its first report to the Committee, these regulations were made by way of interim measure, pending the enactment of the then Terrorism (Bombings and Financing) Bill.16 The regulations were to expire on 30 June 2002, by which time the Bill was expected to have passed through Parliament.17 Due to the early dissolution of the New Zealand Parliament, however, prompted by early elections in July 2002, the life of the regulations was extended to 31 December 2002 by the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2002. The substance of the regulations is considered in more detail below.
The obligations under resolution 1373 (2001) have since been incorporated within the Terrorism Suppression Act 2002.18 The substance of this piece of legislation is also considered in more detail below. The reason for translating these obligations into the Terrorism Suppression Act, rather than leaving them as regulatory provisions, lies in the fact that penalties for regulatory offences are limited.19 Liability for the breach of regulations made under the United Nations Act is set at a maximum of 12 months imprisonment, or a $10,000 fine in the case of a person, or a fine up to $100,000 in the case of a company or corporation.20 The nature of terrorist-related offences calls, however, for severe penalties.21 Offences under the Terrorism Suppression Act reflect this.22
New Zealand has identified the following features of the Terrorism Suppression Act as measures by which it has implemented resolution 1373 (2001):
Paragraph 1(a), which requires the prevention and suppression of the financing of terrorist acts, is a general provision, expanded upon by the subparagraphs that follow it. In addition of those more specific requirements, New Zealand identified the fact that the Reserve Bank of
16 See New Zealand’s first report to the Counter-Terrorism Committee (n 12) 7.
17 Regulation 3.
18 For a detailed account on how New Zealand’s sees that it has complied with these operative provisions (paras 1 and 2), see its first report to the Counter-Terrorism Committee (n 12) 6-15.
19 As explained in New Zealand’s first report to the Counter-Terrorism Committee, ibid, 5.
20 United Nations Act 1946, section 3(1).
21 As called for within the various international anti-terrorism treaties concerned, and within SC Res 1373 (n 8).
22 Discussed below and, infra, chapter 16.
New Zealand took steps to notify financial institutions of these requirements and prohibitions.23 In addition, funding for security and counter-terrorism has been boosted, with the Minister for Foreign Affairs and Trade identifying the post-September 11 environment as requiring this.24
In compliance with this provision of resolution 1373 (2001), the Act creates offence of the financing of terrorism.25
The freezing of assets is said to be given effect through various provisions of the Act.26 New Zealand has described the establishment of various stages in achieving this obligation.27 The first stage is to identify the assets to be frozen, through sections 20 to 42 inclusive, which provide a process by which individuals or groups may be designated as terrorist or associated entities.28 Next, obligations are imposed upon financial institutions to report suspicions of the holding or control of property belonging to or controlled by such entities (sections 43 to 47).29 Third, section 9 of the Act prohibits dealing with property belonging to terrorist entities.30 Finally, sections 55 to 61 establish procedures through which terrorist assets can be forfeited.31
23 See New Zealand’s first report to the Counter-Terrorism Committee (n 12) 6.
24 The Budget 2003 provided an additional $5.9 million for 2004 and $1.9 million in future years: Hon Phil Goff, ‘Funding boost for security, counter-terrorism and emergency responses’, Beehive Press Release 12 May 2003, online: <http://www.behive.govt.nz/ PrintDocumentcfm?DocumentID=16723> (last accessed on 17 May 2003).
25 Section 8 of the Terrorism Suppression Act 2004, discussed further. See New Zealand’s first report to the Counter-Terrorism Committee (n 12) 6-7, which also refers to the defining provisions of the Act (sections 4 and 5) and the extraterritorial jurisdiction attached to the offences (sections 14, 15, 17 and 18).
26 See New Zealand’s first report to the Counter-Terrorism Committee (n 12) 7-9.
27 As explained within New Zealand’s report to the United Nations 1267 Committee, Response of New Zealand to the Security Council Committee under Security Council resolution 1455 (2003), 17 April 2003, 4-7.
28 Discussed below and, infra, chapters 14 and 15.
29 Discussed below.
30 Discussed below and, infra, chapter 16.
31 Discussed below and, infra, chapter 14.
Responding to paragraph 1(d) of the resolution, section 10 makes it unlawful to make property, or financial or related services available to terrorist or associated entities (subject to the express permission of the Prime Minister under section 11).
In compliance with paragraph 2(a), the Terrorism Suppression Act prohibits the recruitment of persons into terrorist groups, under section 12, and participation in terrorist groups (section 13).32 New Zealand reported that existing law would see New Zealand comply with the requirement to work towards the elimination of the supply of weapons to terrorists, pointing to the Customs Prohibition Order 1996,33 the Arms Act 1983,34 the Crimes Act 1961 (prohibiting the unlawful possession of an offensive weapon),35 the New Zealand Nuclear Weapons Free Zone, Disarmament and Arms Control Act 1987,36 and the Chemical Weapons (Prohibition) Act 1966,37 together with its intended ratification of the Firearms Protocol to the United Nations Convention against Transnational Organized Crime.38 New Zealand also reported that it would become party to the plastic explosives and nuclear materials conventions, which would see it create offences under the Terrorism Suppression Act, as required by the treaties and create corresponding offences.39 This was ultimately done through sections 13B, 13C and 13D of the latter Act.
Additional to the above matters, New Zealand identified measures through which the New Zealand police and intelligence community can investigate
32 Discussed below and, infra, chapter 16.
33 Made under the Customs and Excise Act 1996.
34 See New Zealand’s second report to the Counter-Terrorism Committee (n 12) 6.
35 Ibid.
36 Ibid.
37 Ibid.
38 Not yet in force. See New Zealand’s first report (n 12) 11. See, also, New Zealand’s report to the United Nations 1267 Committee (n 26) 8-9.
39 See New Zealand’s second report (n 12) 6.
groups or organisations of interest.40 Through the legislative package introduced under the Counter-Terrorism Bill 2003, this has seen the creation of authority to obtain interception warrants, warrants to attach tracking devices to persons or things, deterrence through more severe penalties, and requiring a computer owner or user to provide the information required for accessing any data which is subject to security codes and the like.41
Sections 7, 73 and 75 of the Immigration Act 1987 (already extant at the time of the adoption of resolution 1373) were identified by New Zealand as satisfying the requirement to deny safe haven to terrorists.42
The extraterritorial nature of the offences created under the Terrorism Suppression Act, together with extant party liability provisions under the Crimes Act 1961, were identified as further measures to prevent terrorists acting from New Zealand territory against citizens of other States.43 The further creation of offences of harbouring or concealing terrorists was relied on (offences under 13A of the Terrorism Suppression Act).44
As discussed later in this chapter, the various offences created under the Terrorism Suppression Act carry severe penalties.45
New Zealand again reported that current law permitted New Zealand to comply with this paragraph, referring to the Mutual Assistance in Criminal Matters Act 1992 and the Extradition Act 1999.46
40 See New Zealand’s first report to the Counter-Terrorism Committee (n 12) 11.
41 Discussed below.
42 See New Zealand’s first report to the Counter-Terrorism Committee (n 12) 11-12.
43 Ibid, 12.
44 Discussed below and, infra, chapter 16.
45 Discussed below and, infra, chapter 16. See also See New Zealand’s first report to the Counter-Terrorism Committee (n 12) 13-14.
46 See New Zealand’s first report to the Counter-Terrorism Committee, ibid, 14.
The Passports Act 1992 and Immigration Act 1987 were identified by New Zealand as means through which compliance with paragraph 2(g) of the resolution could be achieved.47
Non-Binding Directions
Both resolutions 1269 (1999) and 1373 (2001) contain exhortatory, and therefore non-binding, directions. To begin with, both resolutions call upon States to become party to and fully implement all 12 extant conventions concerning terrorism.48 They also call upon United Nations members to:
47 Ibid, 14-15.
48 SC Res 1269 (n 8) para 2, and SC 1373 (n 8) para 3(d) and (e).
49 SC Res 1373 (n 8) para 3(a).
50 SC Res 1373 (n 8) para 3(b).
51 SC Res 1269 (n 8) para 4 (first unnumbered subparagraph), and SC Res 1373 (n 8) para 3(c).
52 SC Res 1269 (n 8) para 4 (fourth unnumbered subparagraph), and SC Res 1373 (n 8) para 3(f)
The first point to note about these non-binding directions is that New Zealand now party to all 12 terrorism-related conventions currently in force. Although the Security Council’s direction to become party to and implement all terrorism-related conventions has been identified as a non- binding one, it is interesting to note that this is an area where a great number of States have indeed acted to become party to the conventions. This is partly due, it is posited, to the fact that the issue of participation in these treaties has been one of the recurring matters addressed by the Security Council Counter-Terrorism Committee in its ‘dialogue’ with States. A striking example can be seen in the case of New Zealand becoming party to the Convention on the Marking of Plastic Explosives for the Purpose of Detection and the Convention on the Physical Protection of Nuclear Materials. It was noted within the two relevant National Interest Analyses prepared by the Ministry of Foreign Affairs and Trade (discussed below) that New Zealand neither manufactures explosives domestically, nor engages in the transportation of nuclear material.54 Notwithstanding this, the Analyses referred to the call by the Security Council for UN members to become party to all anti-terrorism conventions55 as a sound reason for New Zealand becoming a party to the conventions.56
The balance of the directions concern cooperation in the international framework to counter terrorism. Within the very first paragraph of New Zealand’s first report to the Counter-Terrorism Committee, New Zealand declared that it was contributing to counter-terrorism “across the full range of diplomatic, legal financial, humanitarian, intelligence and military activities”.57 New Zealand has pointed to executive action as including an
53 SC Res 1373 (n 8) para 3(g).
54 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, Convention on the Marking of Plastic Explosives for the Purpose of Detection, para 2, and
National Interest Analysis, Convention on the Physical Protection of Nuclear Materials, para 4.
55 See SC Res 1373 (n 8) para 3(d).
56 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, Convention on the Marking of Plastic Explosives for the Purpose of Detection, para 2, and
National Interest Analysis, Convention on the Physical Protection of Nuclear Materials, paras 5 and 7.
57 See New Zealand’s first report to the Counter-Terrorism Committee (n 12) 3.
ad hoc working group of the Department of the Prime Minister and Cabinet examining the existing and potential measures to combat terrorism, and an increase in the physical protection of high profile or significant facilities, aviation security and border control.58 New Zealand identified itself as active in consulting with other countries on how to strengthen anti-terrorist measures, including work of raising the awareness of Pacific Island countries.59
One particular issue warrants some discussion before concluding the examination of resolution 1373 (2001). In response to the Counter- Terrorism Committee’s question concerning steps taken by New Zealand to intensify the obtaining and exchange of operational information, New Zealand has pointed to the Interception Capability Bill as the vehicle through which telecommunications network operators would need to make their networks “interception capable”.60 The Bill was enacted in 2004 as the Telecommunications (Interception Capability) Act 2004. What should be noted is that the Act does not create any powers of interception, nor any authority to apply for warrants of interception. Its aim is to require network operators to ensure that public telecommunications networks and services have interception capability.61 For that reason, the Act will not be given separate consideration within this chapter. It is relevant, in the privacy context, to simply note the principles identified within section 6 of the Act:
The following principles must be applied by persons who exercise powers and carry out duties under this Act if those principles are relevant to those powers or duties:
(a) the principle that the privacy of telecommunications that are not subject to an interception warrant or any other lawful interception authority must be maintained to the extent provided for in law:
(b) the principle that the interception of telecommunications, when authorised under an interception warrant or any other lawful interception authority, must be carried out without unduly interfering with any telecommunications.
58 Ibid, 4.
59 Ibid, 5. See, in particular, pages 15-18 of the report.
60 See New Zealand’s first report to the Counter-Terrorism Committee (n 12) 11. See also New Zealand’s second report (n11) 10.
61 See sections 5 and 7 of the Act.
International Treaties
New Zealand is party to all 12 terrorism-related conventions in force and has signed the International Convention for the Suppression of Acts of Nuclear Terrorism.62 This part of the chapter considers the status of treaties in New Zealand municipal law and the manner in which they are incorporated, or transformed, into domestic law. Consideration is then given to each of the conventions and the means by which these have been incorporated.
Status of International Treaties in Domestic Law
Unlike customary international law, which is part of the law of New Zealand without the need for incorporation by statute, treaties require incorporation to become part of domestic law. Here, the New Zealand courts adopt a dualist approach.
In the often cited decision of the House of Lords in Attorney-General for Canada v Attorney-General for Ontario, Lord Atkin drew a distinction between the formation of a treaty on the one hand and the performance of the obligations under the treaty on the other.63 He observed that, in the British Empire, the formation of a treaty is a matter for the executive, while performance lay within the purview of the legislature, by enactment into statute of the responsibilities undertaken through the treaty.
The latter decision was relied on by the New Zealand Court of Appeal in the court’s consideration of a police warrant to recover the black boxes of an Ansett aircraft in New Zealand Air Line Pilot’s Association Incorporated v Attorney-General and Others.64 Although certain provisions of the Chicago Convention on International Civil Aviation seemed to preclude the recovery of black boxes, the particular provisions had not been implemented into New Zealand law by legislation and the warrants were allowed to stand.65 Similarly, in considering the status of the Treaty of Waitangi in Te Heuheu Tukino v Aotea District Maori Land Board, Chief Justice Myers had earlier held that:66
A treaty only becomes enforceable as part of the municipal law if and when it is made so by legislative authority.
62 See New Zealand’s fifth report to the Counter-Terrorism Committee (n 12) 18.
63 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326, 347-348.
64 New Zealand Air Line Pilot’s Association Incorporated v Attorney-General and Others
[1997] 3 NZLR 269, 280-285.
65 Chicago Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947).
Incorporation of International Treaties
In response to a report of the New Zealand Law Commission in 1997,67 mainly concerned with the issue of democratic oversight in the treaty- making process, procedures for the making of treaties and the incorporation of their provisions are now governed by the Standing Orders of the House of Representative and the Cabinet Manual.68 The treaty-making process in New Zealand is undertaken in four principal stages.69 The first involves steps to be taken when a treaty is first adopted and signed, or where the Executive is contemplating acceding to a treaty. In that event, Standing Order 387 requires all multilateral treaties and “significant” bilateral treaties to be presented to the House with a National Interest Assessment (NIA). Standing Order 388(1) sets out the various issues that must be address within a NIA, including the reasons for becoming a party to the treaty, the advantages and disadvantages of this, the costs of compliance and the steps that need to be taken to implement the obligations under the treaty.
The treaty, with the accompanying NIA, must then be considered by the Foreign Affairs, Defence and Trade Committee for it to prepare a report to the House. In undertaking this second step, the Committee is required to determine whether the treaty should be brought to the attention of the House for consideration of any matters covered by the NIA or “for any other reason”.70 The Select Committee may seek public submissions at this stage, although it is not obliged to do so.71
The next step is to introduce legislation through which the treaty obligations are to be incorporated into domestic law. This will be accompanied by the Committee’s report, to which the National Interest Assessment must be appended.72 Only once the legislation has been passed as an Act of Parliament will the Executive take the final step of ratifying the treaty, thereby making its provisions (as translated by an enactment) binding at international law upon New Zealand.73
66 Te Heuheu Tukino v Aotea District Maori Land Board [1939] NZLR 107, 120.
67 New Zealand Law Commission, The Treaty Making Process: Reform and the Role of Parliament, Report No 45 (1997, Wellington).
68 Standing Orders of the House of Representatives (with effect 12 August 2005), Parliamentary Standing Orders 387 to 390; Cabinet Manual (Department of the Prime Minister and Cabinet, 2001), paragraphs 5.83 to 5.91.
69 For a more detailed explanation of this process, see Alex Conte, An Introduction to International Law (Wellington: LexisNexis, 2006) 77-80.
70 Standing Orders 389 and 390.
71 Cabinet Manual (n 68) para 5.88.
72 Standing Order 390; and Cabinet Manual para 5.91.
Incorporation of the International Terrorism-Related Treaties
At the time of the September 11 attacks and adoption of Security Council resolution 1373 in 2001, New Zealand was a party to eight of the international terrorism-related conventions, detailed below.
Four international conventions on terrorism relate to the safety of aircraft and civil aviation in general:
73 Assuming that the treaty has come into force. The question of when a treaty comes into force is a matter provided for within the text of the treaty itself, normally calling for a certain number of ratifications to be lodged.
74 Convention on Offences and Certain Other Acts Committed on Board Aircraft, opened for
signature 14 September 1963, 704 UNTS 219 (entered into force 4 December 1969).
75 As recorded by the International Civil Aviation Organization (ICAO) in its Treaty Collection, online: <http://www.icao.int/icao/en/leb/Tokyo.htm> (last accessed on 12 October 2004).
76 Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 16 December 1970, 860 UNTS 105 (entered into force 14 October 1971).
77 As recorded by ICAO (n 75) online: <http://www.icao.int/icao/en/leb/Hague.htm> .
78 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, opened for signature 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973).
79 As recorded by ICAO (n 75) online: <http://www.icao.int/icao/en/leb/Mtl71.htm> .
80 Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, opened for signature 24 February 1988, ICAO Doc 9518 (entered into force 6 August 1989).
adopted in 1988, was signed by New Zealand on 11 April 1989 and ratified on 2 August 1999.81
These treaties were incorporated into New Zealand law by the Aviation Crimes Act 1972, considered further in chapter 5. New Zealand did not lodge reservations to any of the four aviation conventions.
The following two conventions are directed towards the safety of persons:
Also relevant to the protection and safety of persons, although not listed by the Terrorism Prevention Branch as one of the twelve conventions relating to terrorism, is the Convention on the Safety of United Nations and Associated Personnel.86 All three treaties were incorporated under the Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980. The Act is considered below.
81 As recorded by ICAO (n 75) online: <http://.icao.int/icao/en/leb/Via.htm> .
82 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, opened for signature 14 December 1973, 1035 UNTS 167 (entered into force 20 February 1977).
83 As recorded by the United Nations in its record on Multilateral Treaties Deposited with
the Secretary-General, online: <http://untreaty.un.org/ENGLISH/Status/Chapter_xviii/ treaty7.asp> (last accessed on 12 October 2004).
84 International Convention against the Taking of Hostages, opened for signature 18 December 1979, 1316 UNTS 205 (entered into force 3 June 1983).
85 As recorded by the United Nations (n 83) online: <http://untreaty.un.org/ENGLISH/
Status/Chapter_xviii/treaty5.asp>.
86 Convention on the Safety of United Nations and Associated Personnel, opened for signature 9 December 1994, 2051 UNTS 391 (entered into force 15 January 1999).
Finally, of the eight terrorism conventions to which New Zealand was a party prior to resolution 1373 (2001), there are two treaties concerning maritime safety:
The Conventions were incorporated under the Maritime Crimes Act 1999, also considered further in chapter 5.
Legislative Incorporation since September 11
At the date of the adoption of Security Council resolution 1373 (2001), New Zealand was not a party to the following four international treaties on terrorism:
87 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, opened for signature 10 March 1988, 1678 UNTS 221 (entered into force 1 March 1992).
88 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms
Located on the Continental Shelf, opened for signature 10 March 1988, 1678 UNTS 304 (entered into force 1 March 1992).
89 International Convention for the Suppression of Terrorist Bombing, opened for signature 12 January 1998, 2149 UNTS 286 (entered into force 23 May 2001).
90 International Convention for the Suppression of the Financing of Terrorism, opened for
signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992).
91 Convention on the Physical Protection of Nuclear Material, opened for signature 3 March 1980, 1456 UNTS 124 (entered into force 8 February 1987).
As the only terrorism-related treaty adopted since September 11, the International Convention for the Suppression of Acts of Nuclear Terrorism was adopted by the UN General Assembly in April 2005.93 New Zealand was an original signatory to this Convention,94 although incorporating legislation has not yet been introduced. Concerning the four other conventions just listed, New Zealand became party to the first two of these treaties after the enactment of the Terrorism Suppression Act 2002.95 It became party to the remaining conventions on 21 September 2004, after enactment of the legislative package under the Counter-Terrorism Bill 2003.96
In terms of the incorporating procedures discussed above, the four-step process for implementation of the treaties was followed, albeit with some points of interest. As treaties that were subject to ratification or accession by New Zealand, Parliamentary Standing Order (PSO) 389 applied,97 so that the four conventions had to be referred to the Foreign Affairs, Defence and Trade Committee (FADTC)98 with a National Interest Analysis99 and then presented to the House.100
92 Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for signature 1 March 1991, ICAO Doc 9571 (entered into force 21 June 1998).
93 International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by
the General Assembly and opened for signature on 15 April 2005 under GA Res 59/290, UN GAOR, 59th Sess, 91st Plen Mtg, UN Doc A/Res/59/290 (2005).
94 See New Zealand’s fifth report to the Counter-Terrorism Committee (n 12) 18.
95 As confirmed in New Zealand’s third report to the Counter-Terrorism Committee, see New Zealand Response to the Questions and Comments of the Security Council Counter- Terrorism Committee Contained in the Chairman’s Letter of 30 May 2003, S/2003/860, 5 September 2003, 6-7. New Zealand acceded to the International Convention for the Suppression of Terrorist Bombing on 4 November 2002: as recorded by the United Nations (n 83) online: <http://untreaty.un.org/ENGLISH/Status/Chapter_xviii/treaty9.asp> . The
International Convention for the Suppression of the Financing of Terrorism was signed by New Zealand on 7 September 2000 but not ratified until 4 November 2002: as recorded by the United Nations (n 83) online: <http://untreaty.un.org/ENGLISH/Status/ Chapter_xviii/treaty11.asp> .
96 In its third report to the Counter-Terrorism Committee, New Zealand indicated it would become party to these conventions following the enactment of the Counter-Terrorism Bill, ibid, 4. New Zealand’s accession to the Convention on the Physical Protection of Nuclear Material is recorded in the Status Register of the International Atomic Energy Agency,
online: <http://www.iaea/org/Publications/Documents/Conventions/cppn_status.pdf> (last accessed on 21 September 2004). Its accession to the Convention on the Marking of Plastic Explosives for the Purpose of Detection is recorded by ICAO (n 75) online:
<http://www.icao.int/icao/en/leb/MEX.htm> .
97 See Parliamentary Standing Order 387 (1).
98 Ibid, para (3).
99 Ibid, para (2).
100 Ibid, para (1).
The National Interest Analyses (NIAs) were prepared by the Ministry of Foreign Affairs and Trade, addressing each of the matters required under PSO 390, and then forwarded to the FADTC. In preparation of the Analyses, the Ministry consulted with the Ministry of Justice, Police, New Zealand Defence Force, Ministry of Defence, Security Intelligence Service, Treasury, Reserve Bank, Departments for Courts and of Corrections, Te Puni Kokiri, Customs, the Immigration Service, the Environmental Risk Management Authority, Ministry of Transport, Civil Aviation Authority, Occupational Health and Safety Service, Ministry of Health (National Radiation Laboratory), Maritime Safety Authority, Land Transport Safety Authority and the Institute of Geological and Nuclear Sciences.101
The Analyses, which are each contained within the respective international treaty examination reports of the FADTC, identify New Zealand’s desire to become party to the conventions as being based upon its support of efforts to strengthen the rule of law at the international level102 and support for an effective and well-supported network of multilateral legal instruments to combat terrorism.103 In the case of the Plastic Explosives and Nuclear Materials conventions, the NIAs noted that New Zealand neither manufactures explosives domestically, nor engages in the transportation of nuclear material.104 Notwithstanding this, the Analyses noted the change in the post-September 11 international context and the call by the Security Council for UN members to become party to all anti-
101 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, International Convention for the Suppression of Terrorist Bombings, para 10, National Interest Analysis, International Convention for the Suppression of the Financing of Terrorism, para 13, National Interest Analysis, Convention on the Marking of Plastic Explosives for the Purpose of Detection, para 15, and National Interest Analysis, Convention on the Physical Protection of Nuclear Materials, para 22.
102 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, International Convention for the Suppression of Terrorist Bombings, para 2, and National Interest Analysis, International Convention for the Suppression of the Financing of Terrorism, para 2.
103 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, International Convention for the Suppression of Terrorist Bombings, para 2, National
Interest Analysis, International Convention for the Suppression of the Financing of Terrorism, para 2, and National Interest Analysis, Convention on the Marking of Plastic Explosives for the Purpose of Detection, para 2, and National Interest Analysis, Convention on the Physical Protection of Nuclear Materials, para 2.
104 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis,
Convention on the Marking of Plastic Explosives for the Purpose of Detection, para 2, and National Interest Analysis, Convention on the Physical Protection of Nuclear Materials, para 4.
terrorism conventions105 as sound bases for New Zealand becoming a party to the conventions.106
The Foreign Affairs, Defence and Trade Committee duly met to consider each treaty and NIA, as required.107 In each case, the Committee reported to the House, attaching a copy of the relevant NIA, and simply advised that it had conducted an examination of the treaty in question and had no matters to bring to the attention of the House.108 This completed the first and second (preparatory and consultative) steps in the implementation process for each treaty.
In the third phase of implementation, legislation was prepared and introduced to the House. For the purpose of the bombing and financing conventions, this was through the Terrorism (Bombings and Financing) Bill, introduced in early 2001, which ultimately became the Terrorism Suppression Act 2002. This is discussed in detail in chapter 5. The Counter-Terrorism Bill, introduced in April 2002, was the vehicle through which the obligations under the plastic explosives and nuclear materials conventions were incorporated. This is also discussed in detail in chapter 5. As a result of the legislation mentioned, the final process was completed in New Zealand’s post-September 11 counter-terrorist treaty- making. The Convention for the Suppression of Terrorist Bombing was acceded to on 4 November 2002 and the International Convention for the Suppression of the Financing of Terrorism was ratified by New Zealand on the same day. The Convention on the Physical Protection of Nuclear Material and the Convention on the Marking of Plastic Explosives for the
Purpose of Detection were both acceded to on 21 September 2004.
105 SC Res 1373 (n 8) para 3(d).
106 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, Convention on the Marking of Plastic Explosives for the Purpose of Detection, para 2, and National Interest Analysis, Convention on the Physical Protection of Nuclear Materials, paras 5 and 7.
107 See Parliamentary Standing Orders 387(3), 389 and 390.
108 The latter question being a decision of the Committee under Parliamentary Standing Order 390(2). For the reports of the Committee, see New Zealand Foreign Affairs, Defence
and Trade Committee, Report on International Treaty Examination of the Convention for the Suppression of Terrorist Bombing, presented to the House 1 December 2000, Report on International Treaty Examination of the Convention for the Suppression of the Financing of Terrorism, presented to the House 1 December 2000, Report on International Treaty Examination of the Convention on Marking of Plastic Explosives for the Purpose of Identification, presented to the House 22 February 2002, and Report on International Treaty Examination of the Convention on the Physical Protection of Nuclear Material, presented to the House 22 February 2002.
Conclusion
Evident through the discussion to this point of the chapter is that the interface between international and municipal law is a complex one at the best of times, added to in the context of counter-terrorism by resolutions of the UN General Assembly and Security Council. By way of summary, the following can be said about the application and/or incorporation of New Zealand’s international counter-terrorism obligations:
Chapter 5
Counter-Terrorism Law in New Zealand
Building on the account in chapter 4 of the means by which international counter-terrorist obligations have been implemented in New Zealand, this chapter examines the particular items of domestic legislation through which those obligations have been implemented, as well as legislation that exists outside the scope of those obligations. An overview and explanation of seven items of legislation is provided: the Aviation Crimes Act 1972; the Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980; the International Terrorism (Emergency Powers) Act 1987; Maritime Crimes Act 1999; the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001; the Terrorism Suppression Act 2002; and the Counter- Terrorism Bill 2003. Consideration is also given to the Terrorism Suppression Amendment Bill 2007, introduced in late March 2007.
It should be mentioned at this early stage that there are numerous other pieces of New Zealand’s domestic legislation that might be seen as contributing to countering terrorism. Just as with international law, there are various matters that are relevant to the issue of countering terrorist activities.1 This chapter restricts itself, however, to the items of legislation just mentioned, those having been identified by New Zealand (in its reports to the Counter-Terrorism Committee) as being part of its counter-terrorist legislative regime.
Aviation Crimes Act 1972
The Aviation Crimes Act 1972 was the vehicle through which New Zealand transformed its obligations under the four conventions concerning the safety of aviation, it preamble stating that it is:
An Act to give effect to the provisions of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, the Montreal Protocol for the Suppression of Unlawful Acts of Violence at
1 As discussed within chapter 2, infra.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
Airports Serving International Civil Aviation, and the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, and for matters incidental thereto.
The Act contains 21 sections and establishes the following offences relating to aircraft and international airports:
2 Offences mandated by Articles 1(a) and 2 of the Convention for the Suppression of Unlawful Seizure of Aircraft (the Hague Convention), opened for signature 16 December 1970, 860 UNTS 105 (entered into force 14 October 1971).
3 This is in fact a wider definition than that provided under the Convention on Offences and Certain Other Acts Committed on Board Aircraft (the Tokyo Convention), opened for
signature 14 September 1963, 704 UNTS 219 (entered into force 4 December 1969), which provides under Chapter I, Article 1(3) that “For the purposes of this Convention, an aircraft is considered to be in flight from the moment when power is applied for the purpose of take- off until the moment when the landing run ends”. The broader definition found in the Aviation Crimes Act is found, however, within Chapter III of the Convention, Article 5(2); Article 3(1) of the Hague Convention; and Article 2(a) of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (the Montreal Convention), opened for signature 23 September 1971, 974 UNTS 177 (entered into force
26 January 1973).
4 The offence is created under section 3 of the Act. The term “in flight” is defined by section 2(2) of the Act.
5 Section 3.
6 Offences mandated by Article 1(b) of the Hague Convention.
7 Section 4(1). Section 4 does not itself specify the maximum penalty for such offending.
8 Offences mandated by Article 1(2) of the Tokyo Convention and Article 1 of the Montreal Convention.
The commission of any of these offences renders a person liable to prosecution under New Zealand law or, in the alternative, liable to extradition in accordance with the procedures under the Extradition Act 1999.11 The Aviation Crimes Act also makes it an offence to take firearms, dangerous or offensive weapons or instruments, ammunition, or any explosive substance or device onto an aircraft without lawful authority or reasonable excuse.12
In terms of compliance with obligations, the Tokyo Convention requires contracting States to take measures necessary to establish jurisdiction over offences committed on board aircraft registered in their State.13 The more specific obligations imposed under the Tokyo Convention appear to have been fully implemented through sections 5 (offences), 15 to 17 inclusive (powers of the aircraft commander) and 19 (exemption of military, customs or police services) of the Aviation Crimes Act.
The Hague Convention, concerning the hijacking of aircraft, requires States parties to make hijacking an offence punishable by severe penalties.14 Again, the requirements of the convention appear to have been fully implemented. The position is also true of the Montreal Convention and its Protocol.
Sections 12 and 13 of the Act set out powers of search of passengers, baggage and cargo. Since search and seizure is a matter specifically addressed within both the International Covenant on Civil and Political Rights (ICCPR)15 and the New Zealand Bill of Rights Act 1990 (NZBORA), further consideration of these provisions will be had in chapter
9 Offences mandated by Article 2(1) of the Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (the Montreal Protocol), opened for signature 24 February 1988, ICAO Doc 9518 (entered into force 6 August 1989).
10 Section 5A.
11 Sections 7 and 7A.
12 Section 11, punishable by a maximum of 5 years’ imprisonment.
13 Article 3(2).
14 Article 2.
15 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
Crimes Act, an aircraft commander holding powers of search and restraint under sections 15 and 17.16 Related to the powers of restraint are the provisions of Articles 6 to 10 and 13 to 15 inclusive of the Tokyo Convention, and Article 6 of the Hague Convention.
Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980
The Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980 incorporates the two treaties on terrorism concerning the safety of persons, as well as the Convention on the Safety of United Nations and Associated Personnel.17 Its preamble reads:
An Act to give effect to–
(a) The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents 1973; and
(b) The Convention Against the Taking of Hostages1979; and
(c) The Convention on the Safety of United Nations and Associated Personnel 1994;–
and for matters incidental to the implementation of those Conventions.
The discussion that follows focuses on the first two conventions, the Protected Persons and Hostages Convention, these having been identified by the Terrorism Prevention Branch as terrorism-related conventions. The Act establishes three categories of offending:
16 Also to be addressed within chapter 19.
17 The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (the Protected Persons Convention),
opened for signature 14 December 1973, 1035 UNTS 167 (entered into force 20 February 1977); the International Convention against the Taking of Hostages (the Hostages Convention), opened for signature 18 December 1979, 1316 UNTS 205 (entered into force 3 June 1983); and the Convention on the Safety of United Nations and Associated Personnel, opened for signature 9 December 1994, 2051 UNTS 363 (entered into force 15 January
1999).
18 As mandated by Article 1 of the Hostages Convention.
19 Section 8(1).
excludes conduct that would essentially amount to the domestic-based offence of kidnapping.
As for the Aviation Crimes Act, any offence against the Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act renders an offender liable to prosecution in New Zealand or, in the alternative, to extradition. To that end, the international obligations under the two conventions identified appear to have been fully implemented into national law. There do not appear to be any issues of potential concern relating to civil and political rights within the 17 sections of the Act.
International Terrorism (Emergency Powers) Act 1987
The International Terrorism (Emergency Powers) Act 1987 is an Act adopted by New Zealand in reaction to the Rainbow Warrior bombing, rather than in response to international counter-terrorist obligations, and in the realisation that New Zealand was not safe from terrorist activity within
20 As mandated by Article 1(a), (c), (d) and (e) of the Protected Persons Convention.
21 Including homicide, violent offending, sexual offending and kidnapping.
22 As mandated by Article 1(b), (c), (d) and (e) of the Protected Persons Convention.
23 Arson, attempted arson, intentional damage and endangering transport – sections 267, 268, 269 and 270 respectively of the Crimes Act 1961.
its borders.24 In the Parliamentary debates concerning the Bill, the then Minister of Justice Geoffrey Palmer said:25
Sadly, it can no longer be assumed that New Zealand will remain immune from acts of international terrorism.
The Act establishes emergency powers, which can be authorised by a meeting of at least three Ministers of the Crown if they reasonably believe (based on advice to the Prime Minister from the Commissioner of Police) that an international terrorist emergency is occurring and that the exercise of emergency powers is necessary to deal with that emergency.26 This authority must be given by way of a notice in writing (within the terms specified under section 6(3)) and tabled before the House of Representatives with reasons for giving the notice.27 The House then has the authority to either revoke the notice or, if necessary, to extend it at any time and for any reason.28 The emergency authority otherwise remains valid for seven days, unless extended by a resolution of Parliament under section 7(2) of the Act – each resolution only enabling an extension of a maximum of seven days.
Where an international terrorist emergency is declared, certain emergency powers are vested in the police under section 10 of the Act, also exercisable by members of the armed forces acting as an aid to the civil power and where requested to act by a member of the police:29
(2) Subject to this Act, any member of the Police may, for the purpose of dealing with any emergency to which this section applies, or of preserving life or property threatened by that emergency,—
(a) Require the evacuation of any premises or place (including any public place), or the exclusion of persons or vehicles from any premises or place (including any public place), within the area in which the emergency is occurring:
(b) Enter, and if necessary break into, any premises or place, or any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle, within the area in which the emergency is occurring:
24 Although it should be recognised that not all agreed at the time that this was the case and that specific anti-terrorism legislation was necessary: see, for example, New Zealand Human Rights Commission, Report on the International Terrorism (Emergency Powers) Bill 1987, 1987.
25 New Zealand, New Zealand Parliamentary Debates, No 482, 10115, 30 June 1987.
26 Sections 5 and 6.
27 Section 7. The notice must be tabled immediately if the House is at that time sitting, or otherwise at the earliest practicable opportunity – section 7(1).
28 Sections 7(2) and 8.
29 Section 12.
(c) Totally or partially prohibit or restrict public access, with or without vehicles, on any road or public place within the area in which the emergency is occurring:
(d) Remove from any road or public place within the area in which the emergency is occurring any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle impeding measures to deal with that emergency; and, where reasonably necessary for that purpose, may use force or may break into any such aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle:
(e) Destroy any property which is within the area in which the emergency is occurring and which that member of the Police believes, on reasonable grounds, constitutes a danger to any person:
(f) Require the owner or person for the time being in control of any land, building, vehicle, boat, apparatus, implement, or equipment (in this paragraph referred to as requisitioned property) that is within the area in which the emergency is occurring forthwith to place that requisitioned property under the direction and control of that member of the Police, or of any other member of the Police:
(g) Totally or partially prohibit or restrict land, air, or water traffic within the area in which the emergency is occurring.
(3) Notwithstanding anything in any other Act, but subject to this Act, any member of the Police may, for the purpose of preserving life threatened by any emergency to which this section applies,—
(a) Connect any additional apparatus to, or otherwise interfere with the operation of, any part of the telecommunications system; and
(b) Intercept private communications—
in the area in which the emergency is occurring.
The latter power of interception is exercisable by police only.30 The Act also provides an emergency power to requisition any property, with compensation later payable to the owner of the property.31 The powers thus far have the potential to impact upon rights pertaining to search and seizure, detention and privacy. Added to this is the exemption from liability of the police or members of the armed forces exercising powers under the Act.
Most controversial is section 14 of the Act which allows the Prime Minister to restrict or prohibit the publication or broadcasting of the identity (or any information capable of identifying) of any person involved in dealing with an international terrorist emergency, as well as restricting or prohibiting information about any piece of equipment used to deal with the emergency that could prejudice measures used to resolve an international terrorist emergency. In effect these powers could be used for a ban on all
30 Section 10(4).
31 Sections 11 and 13.
media for up to twenty-one days. Criticisms that the censorship provisions amounted to an unjustified encroachment on the right to freedom of expression32 led to the New Zealand Law Commission recommending that the Act be repealed.33 The Act remains in force without amendment. This feature of the Act is examined in chapter 12, concerning counter-terrorism and media control.
The Act also creates offences for failure to comply with directions issued by police or military under the powers under section 10,34 or for breach of a section 14 media gag.35
A “terrorist emergency” is defined under the Act as:
Section 2 Interpretation
“International terrorist emergency” means a situation in which any person is threatening, causing, or attempting to cause—
(a) The death of, or serious injury or serious harm to, any person or persons; or
(b) The destruction of, or serious damage or serious injury to,—
- (i) Any premises, building, erection, structure, installation, or road; or
(ii) Any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle; or
(iii) Any natural feature which is of such beauty, uniqueness, or scientific, economic, or cultural importance that its preservation from destruction, damage or injury is in the national interest; or
(iv) Any chattel of any kind which is of significant historical, archaeological, scientific, cultural, literary, or artistic value or importance; or
- (v) Any animal—
in order to coerce, deter, or intimidate—
(c) The Government of New Zealand, or any agency of the Government of New Zealand; or
(d) The Government of any other country, or any agency of the Government of any other country; or
(e) Any body or group of persons, whether inside or outside New Zealand,—
for the purpose of furthering, outside New Zealand, any political aim.
32 Discussed in the report of the Advisory Council of Jurists, Reference on the Rule of Law in Combating Terrorism, Final Report to the Asia Pacific Forum of National Human Rights Institutions, May 2004, 116.
33 New Zealand Law Commission, Final Report on Emergencies, NZLC Report 22 (Wellington, 1991), 7.139. The Commission’s recommendations are discussed when
considering the impact and legitimacy of section 4 of the Act within chapter 18.
34 Section 21(1)(a), qualified by the defences under subsection (4).
35 Section 21(1)(b), qualified by the defences under subsection (4).
There are two main things to note about this definition. Although, at first sight, it appears to be detailed, it is in fact relatively broad. A wide range of criminal conduct, accompanied by coercive or intimidatory elements, will satisfy the definition and might thereby invoke the powers discussed. The second aspect of the definition to note is the final sentence, which qualifies that the conduct in question is done for the purpose of furthering any political aim outside New Zealand. In other words, if a bombing (or other criminal act) was committed with the aim of changing the New Zealand Government’s policy and/or conduct within New Zealand, this would not give rise to an “international terrorist emergency”. The reasoning must be that this would be “national” rather than “international”, although it is not clear why the State should want to have emergency powers to deal with international terrorists and not domestic ones.
Maritime Crimes Act 1999
The two maritime safety conventions relating to terrorism (the Rome Convention and Protocol)36 were incorporated into New Zealand law through the final piece of pre-September 11 legislation, the Maritime Crimes Act 1999, being an Act:37
...to give effect to the provisions of the Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and the Rome Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf.
Similar in nature to the Aviation Crimes Act 1972, the Maritime Crimes Act establishes offences mandated by the Rome Convention and Protocol and aimed at securing the safety of ships (other than warships, customs or police vessels)38 and maritime platforms:
36 The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the Rome Convention), opened for signature 10 March 1988, 1678 UNTS 221 (entered into force 1 March 1992); and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (the Rome Protocol), opened for signature 10 March 1988, 1678 UNTS 304 (entered into force 1 March 1992).
37 See the preamble to the Maritime Crimes Act 1999.
38 Section 3.
39 As mandated by Article 3 of the Rome Convention.
40 Section 4(1) and (2).
renders a person liable to prosecution if, in the commission of the latter acts, s/he injures or causes death to any person.41
Such conduct, whether within or outside New Zealand,44 renders a person liable to prosecution within New Zealand or arrest and surrender to a State party to the Rome Convention or Protocol, as applicable.45
The Act also provides the master of a ship with powers of detention and surrender, as well as search and seizure, of any person on board a ship, incorporating the obligations under Article 8 of the Rome Convention.46 The Convention and Protocol are in all other respects implemented into New Zealand law. As rights of arrest and detention, as well as search and seizure, are involved, those provisions of the Act require further examination in the context of human rights.47
United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001 and Amending Regulations
The obligations imposed by the Security Council upon New Zealand under Resolution 1373 were, by way of interim measure, incorporated into domestic law under the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001 and Amending Regulations of 2002 – the Terrorism Regulations. The Terrorism Regulations were made pursuant to the empowering provision of the United Nations Act 1946, that enactment established to permit the New Zealand Government to implement directions of the Security Council by Order in Council.
The Terrorism Regulations did four things.48 First, they prohibited certain conduct relating to the financing of terrorist activities (the provision
41 Section 4(2).
42 As mandated by Article 2 of the Rome Protocol.
43 As defined under section 2.
44 See sections 8 and 9.
45 Sections 13 to 16 inclusive.
46 Sections 11 and 12.
47 See, infra, chapter 19 concerning search and seizure, and arrest and detention.
48 Mark Gobbi, “Treaty Action and Implementation”, (2004) 1 New Zealand Yearbook of International Law 277.
of funds to specified entities, the dealing with property of such entities and the making services and property available to entities).49 The Regulations also imposed duties upon any person in possession or control of property suspected to be owned or controlled by a specified entity to report this to the police.50 Third, the Regulations prohibited the recruitment of any person as a member of a specified entity, or the participation by any person in such an entity.51 Finally, the Regulations identified al-Qaida, the Taliban and Usama bin Laden as “specified entities” under the Regulations.52 The prohibitions potentially impact upon the freedom of association, to be discussed within chapter 14.
Quite apart from the prohibitions mentioned, the Terrorism Regulations also raise the interesting and complex issue concerning the relationship between the Executive and Parliament pertaining to subordinate law- making authority and the potential to limit rights. This matter is addressed further in chapter 10.
Terrorism Suppression Act 2002
The Terrorism Suppression Act 2002 was enacted to achieve two purposes: first to allow New Zealand to become party to the conventions on the suppression of terrorist bombings and the suppression of the financing of terrorism; and also to give effect to obligations upon New Zealand under Security Council Resolution 1373.53 Because of the timing of New Zealand’s decision to pursue each objective, and the intervening attacks of September 11, the process from Bill to Act was a rather unusual one. The Act is also now subject to further proposed amendments, under the Terrorism Suppression Amendment Bill 2007. The Bill was introduced just three weeks prior to the completion of this text.
49 Regulations 6, 7 and 9 of the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001.
50 Regulation 8. Regulation 8(2) excludes, from application of this duty, any “privileged communication” with a lawyer, as defined under the Financial Transactions Reporting Act
1996.
51 Regulations 11 and 12.
52 Regulation 4(1) and 5 and the Schedule to the United Nations Sanctions (Terrorism
Suppression and Afghanistan Measures) Regulations 2001, and Regulation 3 of the United Nations Sanctions (Afghanistan) Amendment Regulations 2001.
53 Discussed below. See also Gobbi (n 48). Note that the Act does not contain any preambular statement setting out the purpose of the legislation, but that the purpose of the legislation is addressed within section 3 of the Act.
From Bill to the Current Act
This piece of legislation has undergone a long and somewhat unusual transformation from its original form and content as the Terrorism (Bombings and Financing) Bill to the current form and content of the Terrorism Suppression Act 2002. The first two stages reflect the dual purposes of the legislation as noted above. First, the Bill was introduced as simple incorporating legislation for the bombings and financing conventions. Next, the Bill was significantly amended to incorporate obligations under Security Council Resolution 1373. A further set of substantive provisions were added to the Act through the Counter- Terrorism Act 2003 (which created the Terrorism Suppression Amendment Act 2003). Further minor amendments took place under the Terrorism Suppression Amendment Bill (No 2) was introduced in December 2004. The most recent changes have been proposed under the Terrorism Suppression Amendment Bill 2007.
The Terrorism Suppression Act 2002 began its life as the Terrorism (Bombings and Financing) Bill, introduced in early 2001 (prior to the September 11 attacks) following the Executive’s decision to become party to the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism.54 As discussed in chapter 4, National Interest Analyses were prepared, with the Foreign Affairs, Defence and Trade Committee subsequently lodging treaty examination reports with the House on 1 December 2000. The reports did not bring any matters to the attention of the House, but the Analyses each noted that domestic implementing legislation would be needed to create new criminal offences, establish extra-territorial jurisdiction and facilitate the prosecution or extradition of alleged offenders.55
54 The International Convention for the Suppression of Terrorist Bombing (the Bombing Convention), opened for signature 12 January 1998, 2149 UNTS 286 (entered into force 23 May 2001); and the International Convention for the Suppression of the Financing of Terrorism( the Financing Convention), opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992).
55 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, International Convention for the Suppression of Terrorist Bombings, para 9, and National Interest Analysis, International Convention for the Suppression of the Financing of Terrorism, para 12.
The most recent addition to the international legal framework on counter-terrorism is the International Convention for the Suppression of Acts of Nuclear Terrorism.56 New Zealand is an original signatory State to the Nuclear Terrorism Convention, which was adopted in April 2005.57 At the same time as the negotiation of the Convention, work was being undertaken by the International Atomic Energy Agency (IAEA) towards adopting amendments to the Convention on the Physical Protection of Nuclear Material.58 One of the purposes of the Terrorism Suppression Amendment Bill 2007 is to allow New Zealand to implement obligations under, and take treaty action in respect of, both the Nuclear Terrorism and Nuclear Materials Conventions.59
After the preparation of the National Interest Analyses and the presentation of reports required by Parliamentary Standing Orders, the horrific events of September 11, 2001, transpired. The Security Council subsequently adopted resolution 1373 (2001),60 imposing both binding and non-binding obligations upon New Zealand (as a member of the United Nations).61 The Resolution was adopted when the Terrorism (Bombings and Financing) Bill was in its final stages of the select committee process.62 Compliance with the obligations under the resolution was the second aim of the 2001 Bill, as amended. To achieve that objective, the reasonably unusual step was taken of adding a considerable number of new substantive provisions to the Bill, seeing the Bill almost double in size.63 Due to these circumstances, the Foreign Affairs Defence and Trade Committee presented to the House an
56 International Convention for the Suppression of Acts of Nuclear Terrorism (the Nuclear Terrorism Convention), adopted and opened for signature on 15 April 2005 under General Assembly resolution 58/290 (2005), UN GAOR, 58th Sess, 91st Plen Mtg, UN Doc A/Res/58/290 (2005).
57 See New Zealand national report to the United Nations Security Council Counter- Terrorism Committee, UN Doc S/2006/384 (2006), 11.
58 Convention on the Physical Protection of Nuclear Material (the Nuclear Material Convention), opened for signature 3 March 1980, 1456 UNTS 124 (entered into force 8 February 1987).
59 New Zealand Parliamentary Library, Bills Digest. Terrorism Suppression Amendment Bill 2007 (Bills Digest 1498, 21 March 2007), 2.
60 SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001).
61 Considered in chapters 3 and 4, infra.
62 Report to the Counter-Terrorism Committee pursuant to paragraph 6 of Security Council resolution 1373 (2001) of 28 September 2001, New Zealand, UN Doc S/2001/1269 (2002),
3.
63 As noted in New Zealand’s first report to the Counter-Terrorism Committee, ibid.
interim report on the Bill, drawing to the attention of the House the new provisions in the Bill, with explanatory notes.64 The Committee also called for public submissions on the draft amendments65 and received 143 submissions from interest groups and individuals.66 In contrast, the Committee had received no submissions on the original Terrorism (Bombings and Financing) Bill.67
The next stage in the development of the Terrorism Suppression Act came through amendments to the legislation enacted under the Counter- Terrorism Bill 2003. The latter legislation is discussed in more detail below, concerning the purpose of the legislation and the nature of legislative amendments achieved under it. What should be noted at this stage is that Part 2 of the Counter-Terrorism Bill was directed towards amendment of the Terrorism Suppression Act. The primary purpose of these amendments was to incorporate obligations under the Convention on the Physical Protection of Nuclear Material and the Convention on the Marking of Plastic Explosives for the Purpose of Detection.68 The amendments also added substantive provisions concerning the search and seizure, and related issues, by the Customs Service of goods owned or controlled by terrorist entities or associated persons.69
On 14 December 2004, further amending legislation was introduced to the House: the Terrorism Suppression Amendment Bill (No 2). The amendments to the principal Act under this Bill achieved two things: the creation of a new offence of providing financial support to all terrorist
64 Foreign Affairs, Defence and Trade Committee, Interim Report on the Terrorism (Bombings and Financing) Bill, 8 November 2001.
65 Ibid, cover page.
66 Foreign Affairs, Defence and Trade Committee, Final Report on the Terrorism
<(Bombings and Financing)> Suppression Bill, 22 March 2002, 2.
67 See the Committee’s interim report (n 64) 2.
68 The Convention on the Marking of Plastic Explosives for the Purpose of Detection (the Plastic Explosives Convention), opened for signature 1 March 1991, ICAO Doc 9571
(entered into force 21 June 1998); and the Convention on the Physical Protection of Nuclear Material (the Nuclear Materials Convention), opened for signature 3 March 1980, 1456 UNTS 124 (entered into force 8 February 1987). See clauses 10 to 14 and 16 to 23 of the
Counter-Terrorism Bill 2003.
69 Clause 15 of the Counter-Terrorism Bill 2003.
organisations (including those that might not yet be formally designated under the TSA); and extend the length of time that designations remain in force without further extension by High Court order (from three years to five). These features of the Terrorism Suppression Act are considered in detail in chapters 14 and 15.
The recently introduced Terrorism Suppression Amendment Bill 2007 looks to make changes for the three main purposes:
As will be discussed in chapter 8, the New Zealand Bill of Rights Act 1990 (NZBORA) requires the Attorney-General to advise the House of any inconsistency between any provision of a Bill before the House and the NZBORA.71 In practical terms, this in turn relies on advice given to the Attorney-General by the New Zealand Crown Law Office. In the case of the Terrorism (Bombings and Financing) Bill, the Solicitor-General examined the Bill72 and concluded that it was consistent with the Bill of
70 See discussion below and chapter 16, infra.
71 New Zealand Bill of Rights Act 1990, section 7.
72 As contained within the interim report of the select committee (n 64).
Rights Act.73 The proposed changes to the principal Act under the 2007 Amendment Bill have also, according to advice from the Crown Law Office to the Attorney-General, been assessed as ‘not inconsistent’ with the NZBORA.74 These items of advice are considered in chapter 15.
Counter-Terrorist Framework under the Act
The Terrorism Suppression Act 2002 is a significant piece of legislation, currently containing 81 sections, five schedules and running to over 120 pages. It contains definitions of the term terrorism. It creates offences and provides for associated issues of jurisdiction, prosecution and extradition. It establishes a process by which persons or entities may be designated as terrorists and contains various provisions aimed at suppressing the financing of terrorist activities. The discussion that follows identifies the current status and regime under the Act, with proposed amendments under the 2007 Amendment Bill identified also.
As discussed within chapter 2, there has been no overwhelming consensus within the international community on a definition of terrorism, resulting in the lack of a definition within relevant Security Council and General Assembly resolutions. The result has been that individual States have been required to formulate their own definitions of the term. In the New Zealand context, this is addressed within sections 4 and 5 of the Terrorism Suppression Act.
Section 5 of the Act, combined with definitions contained within section 4(1) and conventions listed in Schedule 3, provides for three distinct types of “terrorist acts”. The term is significant for three reasons.75 First, it is linked to offences such as the financing of terrorist acts.76 Its also plays a role in the designation of terrorist or associated entities, which
73 Letter from the Solicitor-General to the Attorney-General, “re Terrorism Suppression Bill: Slip Amendments – PCO 3814B/11 Our Ref: ATT114/1048 (15)”, 9 November 2001. It should be noted, as pointed out by the Solicitor-General in his letter, that his office was only provided with the Slip Amendments (which amended the original form of the Bill to incorporate the Resolution 1373 obligations) on the previous day, 8 November 2001.
74 Letter from the Crown Law Office to the Attorney-General, “Legal Advice. Consistency
with the New Zealand Bill of Rights Act 1990: Terrorism Suppression Amendment Bill. Our Ref: ATT395/24”, 4 December 2006, online: <http://www.justice.govt.nz/bill-of-rights/bill- list-2006/t-bill/terrorism-suppression-amend-bill.html> (last accessed on 15 March 2007).
75 As highlighted in the Interim Report on the Bill (n 64) 5.
76 Section 8.
include those entities that have perpetrated terrorist acts. Finally, if enacted without change, the 2007 Amendment Bill will create a new offence of engaging in a terrorist act (as defined in section 5(1)), publishable by a maximum of life imprisonment.77 The 2007 Bill does not, however, make any changes to the current definition of terrorist acts.
The first type of terrorist act defined reflects the international obligations assumed by New Zealand under the various international terrorism-related conventions. Sections 4(1)78 and 5(1)(b) prohibit acts that constitute an offence under one of the nine terrorism conventions listed in Schedule 3 to the Act. Interestingly, Schedule 3 does not list the Convention for the Suppression of the Financing of Terrorism, the Convention on the Marking of Plastic Explosives for the Purpose of Detection, nor the Convention on Offences and Certain Other Acts Committed On Board Aircraft. In submissions to the Foreign Affairs, Defence and Trade Committee on the Counter-Terrorism Bill, the author of this text notified the Committee of this omission.79 Clause 22 of the Counter-Terrorism Bill proposed to amend Schedule 3 to the Terrorism Suppression Act by including in the list of treaties the Convention on the Physical Protection of Nuclear Material. The author submitted to the Committee that this was not sufficient since, upon the enactment of the Counter-Terrorism Act, New Zealand was to become party to all twelve of the international conventions on counter-terrorism. The Terrorism Suppression Act should therefore include in its definition of a “terrorist act”, it was submitted, any act against any of those twelve conventions.80 The Committee did not, however, recommend amendment of clause 22, nor did it report on the reasons for this.
The second type of terrorist act defined is that of terrorist acts in armed conflict, established under sections 5(1)(c) and 4(1) as conduct:81
(a) that occurs in a situation of armed conflict; and
(b) the purpose of which, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or abstain from doing any act; and
(c) that is intended to cause death or serious bodily injury to a civilian or other person not taking an active part in the hostilities in that situation; and
77 Clause 6 of the Terrorism Suppression Amendment Bill 2007.
78 Through its definition of “act against a specified terrorism convention” and “specified terrorism convention”, and through the associated list of conventions contained in Schedule
3 to the Act.
79 Alex Conte, Submissions to the Foreign Affairs, Defence and Trade Committee on the Counter-Terrorism Bill (27-1, 2003), 12 May 2003, part IIIA.
(d) that is not excluded from the application of the Financing Convention by article 3 of that Convention.
Finally, a more general (albeit complex) definition is provided within the balance of section 5. A terrorist act is:
This general definition of terrorist acts is examined in chapter 16, where it will be tested against the approach advocated on the subject by the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism.
The Act establishes the following offences:
80 Ibid, paras 23 and 24.
81 As defined by section 4(1).
82 Section 5(2).
83 Sections 5(2)(a) and (b).
84 Section 5(3).
device with the intention to cause death (or serious injury) or extensive destruction. Of interest, the provision does not specify that such conduct be aimed at inducing fear or influencing an organisation or government, nor does it specify that this be for the advancement of any particular cause. It only holds one of the common characteristics of terrorism (targeting). If one considers the definition of the offence closely, however, it is not one of “terrorist bombing”, it is simply one of “bombing” where death or serious injury results, or where extensive damage to public facilities results. Conviction renders an offender liable to imprisonment for life.
This prohibition was added to by the Terrorism Suppression Amendment Bill (No 2) 2004.87 The explanatory notes to the Bill referred to doubt that the current offence, just described, was enough to prohibit general financial support to an organisation involved in terrorism (whether designated or not), such as the payment of routine expenses (e.g., rent).88 In explaining the need for this, the Bills Digest and General Policy Statement for the Bill pointed to the requirement to comply with international standards set by the Financial Action Task Force on Money Laundering. Minister of Justice Phil Goff added:89
Given the fluidity of terrorist movements, and the unpredictable emergence of new terrorist groups, this change is the most workable way of ensuring that New Zealand will always remain compliant with international obligations prohibiting the funding of terrorist organisations.
This may well be problematic in its application, since there will not be the same element of notice to the public as is achieved through the Gazetting of designations under the Act. Prosecution of such offending,
85 Section 7.
86 Section 8.
87 By creating an offence provision and amendment of the definition of the term “financing of terrorism” under section 2 of the Terrorism Suppression Act 2002 (through clauses 3 and 4 of the 2004 Bill).
88 New Zealand Ministry of Justice, Terrorism Suppression Amendment Bill (No 2),
Government Bill, 242-1, Explanatory Note, presented to the House 14 December 2005, 1. Clause 4 of the Bill proposes to create this offence through a new section 8(2A) of the Terrorism Suppression Act 2002.
where the entity is not designated, will have the added difficulty of establishing knowledge in the mind of the accused that the entity was a terrorist entity, within the terms of the Act.
The 2007 Amendment Bill proposes removal of the ‘avoidance of doubt’ provisions in the terrorist financing offences. Sections 8(2) and 10(2) currently provide that, for the avoidance of doubt, the provisions of sections 8 and 10 do not make it an offence to provide or collect funds intending that they be used, or knowing that they be used, for the purpose of advocating democratic government or the protection of human rights and that is not involved in any way in the carrying our of terrorist acts. The Explanatory Note to the Bill explains that these provisions have created uncertainty and that removal of the provisions will remove ambiguity.90 The author is a little sceptical about this proposal however, particularly since neither the Explanatory Note nor the Bills Digest provide reasons as to how or why the avoidance of doubt provisions have created uncertainty.
89 Press Release, ‘Amendments to Tighten Terrorism Suppression Act’, URL
<http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=21825> at 8 January 2005. New Zealand Ministry of Justice, Terrorism Suppression Amendment Bill (No 2) 2004, Government Bill, 242-1, Explanatory Note, presented to the House 14 December 2004, 2.
90 Terrorism Suppression Bill. Government Bill 105-1. Explanatory Note, presented to the
House on 21 March 2007, 2.
91 Section 9.
92 This term is currently defined under section 9(5) of the Act. The Terrorism Suppression Amendment Bill 2007 proposes removal of the definition from section 9 to the general definitions provision of section 4: see clause 5 of the Bill.
93 Section 10.
without lawful justification or reasonable excuse. Section 11 limits the operation of this prohibition, where the Prime Minister permits, by notice in writing, any particular dealing. Otherwise, the offence renders a convicted person liable to up to seven years’ imprisonment. The terms “make available”94 and “property”95 are defined within the Act, but the phrase “financial or related services” is not.
As considered in the above discussion of the financing of terrorism offence, the Terrorism Suppression Amendment Bill 2007 proposes removal of the ‘avoidance of doubt’ provision in section 10(2) of the Act.
94 Section 10(6).
95 Section 4(1).
96 Section 12.
97 Section 13.
98 Section 13A, added to the Terrorism Suppression Act by section 12 of the Counter- Terrorism Bill 2003.
A further set of offences, involving radioactive material and radioactive devices, is to be introduced under clauses 14 to 16 of the Terrorism Amendment Bill 2007. These offences reflect obligations under the Nuclear Terrorism Convention, which was signed by New Zealand in April 2005.101 The Bill will also create a new offence of engaging in a terrorist act (linked to the definition, in section 5(1), of “terrorist acts”).102
As seen from the foregoing discussion, a number of offences under the Terrorism Suppression Act concern conduct in support of or related to a “terrorist entity” or “associated entity”. The Act establishes a regime by which organisations, groups, or even individuals may be designated as such. The designation process, governed by sections 20 to 42 inclusive, empowers the Prime Minister to designate terrorist entities based on information from the United Nations Security Council or “any relevant information, including classified security information”.103
The Prime Minister may make an interim designation, after consulting with the Attorney-General and the Minister of Foreign Affairs and Trade, if s/he has good cause to believe that the entity has in the past undertaken one or more “terrorist acts” or is knowingly facilitating such acts.104 An interim
99 Section 13B, added to the Terrorism Suppression Act by section 12 of the Counter- Terrorism Bill 2003.
100 Sections 13C and 13D, added to the Terrorism Suppression Act by section 12 of the
Counter-Terrorism Bill 2003.
101 Explanatory Note (n 90), 4.
102 See, infra, chapter 16.
103 See sections 30 to 32 inclusive.
104 Section 20.
designation automatically expires after 30 days, during which time certain notice must be given about the designation.105 The Act contemplates that a final designation, if appropriate, will be made prior to the expiry of the interim designation.106 Again, steps are required to notify and, in addition, publish the designation.107
A final designation currently expires after three years, unless the High Court extends the designation.108 The period of final designation was extended under the Terrorism Suppression Amendment Bill (No 2) 2004. To allow consideration of the Select Committee’s review of the Terrorism Suppression Act (as required under section 70 of the Act), part of which was to address the designation process, current designations are to continue for two years after presentation of the Committee’s report to the House.109 Minister of Justice Phil Goff explained:110
At the time the original Bill was first introduced, there was uncertainty as to the nature and extent of the terrorism phenomenon. An assumption that some designations might be short-lived has since proved false.
He continued:
Provisions in the existing Act mean that New Zealand's designations of terrorist organisations – including the 318 organisations listed by the United Nations Security Council – expire after three years unless renewed by order of the High Court.
Drafting of that provision created the unintended need for each designation to be renewed individually, meaning it will be impossible to renewal all the 318 UNSC-listed designations before they expire next October. That would put New Zealand in breach of Security Council Resolution 1373 – which was passed unanimously by the UN in the wake of September 11 – and related resolutions.
Both the interim and final designation processes are open to judicial review.111 A designated entity may at any time apply to the Prime Minister to revoke the designation.112
Currently, New Zealand has only designated as terrorist entities those identified by the United Nations 1267 Committee113 in its most recent
105 Sections 21 and 26 to 29.
106 Section 22.
107 Section 23 and 26 to 29
108 Sections 23(g) and 35 to 41.
109 Due 1 December 2005, under section 70(3) of the Terrorism Suppression Act 2002.
110 See also the Explanatory Note to the Bill (n 64) 2.
111 Section 33.
112 See sections 34 and 42.
consolidated list.114 The lack of use by New Zealand of this procedure for the designation of non-UN listed terrorist entities has been criticised as a failure by New Zealand to “add its considerable moral and symbolic voice to the international chorus against terrorist violence”.115
The Terrorism Suppression Amendment Bill 2007 proposes the following three main changes to the regime just described:
113 Formally known as the “Security Council Committee Established Pursuant to Resolution 1267 (1999) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities”.
114 See New Zealand response to the questions and comments of the Security Council Counter-Terrorism Committee contained in the Chairman’s letter of 30 May 2003, UN Doc
S/2003/860 (2003), 4. The consolidated list is available at URL <http://www.un.org/Docs/ sc/committees/1267/tablelist.htm> . For more details, see also New Zealand’s report to the United Nations 1267 Committee, Response of New Zealand to the Security Council Committee under Security Council resolution 1455 (2003), 17 April 2003, 2-4.
115 Smith JE, New Zealand’s Anti-Terrorism Campaign: Balancing Civil Liberties, National
Security, and International Responsibilities, Ian Axford New Zealand Fellowship in Public Policy, December 2003, 3.
116 Bills Digest (n 59), 1; and Explanatory Note (n 90), 5.
whereas the Bill is to establish one single procedure under new section 38 (clause 22 of the Bill).
As already indicated, these proposed changes are examined in chapter 15.
In aiming to suppress the financing of terrorism, the Terrorism Suppression Act impacts upon both individuals and institutions in two ways. First, by the creation of offences (financing of terrorism, dealing with terrorist property, and making property, or financial or related services, available) and by the designation of individuals or groups as terrorist or associated entities (resulting in prohibited dealings with such entities as a result of the offences just mentioned). The second means by which the Act seeks to suppress the financing of terrorist activities is through the establishment of a financial transactions reporting regime and providing for the forfeiture of terrorist property. The power of forfeiture is one vested in the High Court under section 55 of the Terrorism Suppression Act, allowing the Attorney- General to apply for an order for forfeiture in respect of property owned by an entity in respect of which a final designation has been made and where the mere prohibition against dealing with such property is not enough, by itself.117
The Terrorism Suppression Amendment Bill 2007 is to change the freezing and forfeiture provisions so that they are automatic upon interim or final designation.118
In terms of financial transactions reporting, section 43 of the Terrorism Suppression Act requires financial institutions and other persons in possession or control of suspected terrorist property to report that suspicion to the Police. The provision was enacted, explained the Select Committee, to ensure that the mere holding of terrorist property, without necessarily dealing in it, is detected and made unlawful.119 The process for reporting suspicious property is aligned with the process for reporting suspicious transactions in the Financial Transactions Reporting Act 1996, which is limited to reporting for the purposes of money laundering offences or for
117 See section 55(2)(b).
118 See Explanatory Note (n 90), 2.
119 See the final report on the 2004 Bill (n 66) 13.
proceeds of crime action.120 “Double-reporting” is avoided by deeming a report under the Terrorism Suppression Act to be notice under section 15 of the Financial Transactions Reporting Act.121
The provision applies to property directly, or indirectly, owned or controlled by any entity that has been designated a terrorist or associated entity. Two main points arise from that general statement of operation. Firstly, “property” is defined within the Act in such a way as to include any form or real or personal property or interest therein. Secondly, it applies to such property within the ownership or control of a “terrorist” entity, as designated, such designation resulting in public notification of both interim and permanent designations in the Gazette.122 There is, from that perspective, a small level of certainty for financial and other institutions in knowing the extent to which the reporting procedures apply: institutions need not bother themselves with the question of whether any particular organisation or person is a terrorist.123 They will be informed of this through the Gazetted designation. However, the reporting procedures apply not only to property within the ownership or control of a “terrorist” entity (section 43(1)(a)), but also to any property derived or generated from any such property (section 43(1)(b)). It will be interesting to see the extent to which the Government reviews, or even requires, compliance with these reporting provisions given their potentially wide application. It is suggested that if one was to apply the provisions to their full extent, such compliance
120 Reporting under the Terrorism Suppression Act operates, however, independently of section 15 of the Financial Transactions Reporting Act – the latter Act being limited to reporting for the purposes of the investigation or prosecution of money laundering offences or for Proceeds of Crime Act action
121 See sections 44(4) and 77 of the Terrorism Suppression Act and the (amended) section 15(1) of the Financial Transactions Reporting Act.
122 See sections 21(a), pertaining to interim designations, and 23(e) as to permanent designations. Upon permanent designation, such designation remains in force for a period of three years, unless earlier revoked or later extended by Court order: see section 35. Notification of revocation, expiry or invalidity is also subject to notification through the Gazette: see section 42.
123 It has to be said, however, that the New Zealand Bankers’ Association had in fact asked for an even greater level of notice to financial institutions when the Bill was being considered before the Select Committee. The Association requested that its members receive
automatic direct notice of interim and final designations, thereby achieving a more effective reporting regime and ensuring that members did not unwittingly assist in the financing of terrorism through ignorance. See Submissions by the New Zealand Bankers’ Association to the Foreign Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression Bill, TERRO/133, Parliamentary Library, paragraph 2.2. By way of compromise, the Act contains a provision whereby the Prime Minister can direct that notice of designations be made to any persons or bodies that the Prime Minster thinks fit (see section 28(2)). No such directions have yet been made.
would involve a level of financial regulation and investigation that is not commonly seen within New Zealand’s deregulated environment.124
Once these preliminary issues are dealt with, it is then a question of what obligations are in fact imposed upon financial institutions. Having just made the criticism that proper compliance would be burdensome, this is countered by what is in the author’s view a low threshold. The test for determining whether an institution is obliged to report to the Commissioner of Police is that of “suspicion, on reasonable grounds” that the institution is in possession or control of “property” within the jurisdiction of section
43.125 Of use, the OECD126 Financial Action Task Force on Money
Laundering has issued guidelines on how financial institutions can detect terrorist financing.127
Review Mechanism
Following receipt of public submissions on the November 2001 version of the Terrorism (Bombings and Financing) Bill, the Foreign Affairs, Defence and Trade Committee recommended inclusion of a review mechanism pertaining to provisions through which Resolution 1373 was implemented.128 Section 70 of the Terrorism Suppression Act was the result, requires a select committee to consider the operation of those provisions and whether they should be retained or amended.129 The review was to take place as soon as practicable after 1 December 2004, with the committee required to report to the House by no later than 1 December
124 On that point, a high-level official within the New Zealand Ministry of Foreign Affairs and Trade advised the author of their view that New Zealand could, for that very reason, find itself receiving harsh criticism from the Organisation for Economic Co-operation & Development (OECD) Financial Action Task Force (which is in the process of consulting with member States on the suppression of terrorist financing).
125 See section 43(2). Where such suspicion exists, a report is to be made as soon as practicable in accordance with section 44 and Schedule 5 to the Act. Failure to report constitutes an offence under section 43(4) of the Act, punishable by up to one year’s imprisonment. Note that section 43(2) does not require a lawyer to disclose any “privileged communication” (although the term is restricted somewhat by statutory definition in section 45). For a more detailed examination of the reporting provisions of the Terrorism Suppression Act, see Conte A, “New Challenges for Financial Regulation: The Suppression
of the Financing of Terrorism” in Essays in Commercial Law. A New Zealand Collection, Centre for Commercial & Corporate Law Inc 2003, Hawes & Rowe (Eds.), 63.
126 Organisation for Economic Co-operation and Development, of which New Zealand is a member.
127 OECD Financial Action Task Force on Money Laundering, Guidance for Financial
Institutions in Detecting Terrorist Financing, 24 April 2002.
128 See the Committee’s Interim Report (n 64) 16.
129 Section 70(2).
2005.130 Due again to the timing of elections and the consequent uncertainty as to membership in the Foreign Affairs, Defence and Trade Committee, the Committee was unable to undertake a comprehensive review of the Act, the Committee recording in the opening section of its report that:131
...We have had limited opportunity to consider the evidence and advice that has been received on the review.
...We have not made specific recommendations on how the legislation might be amended. In the time available to us we have focussed on recording those issues that we consider warrant further scrutiny.
This is a most unfortunate result and undermines the integrity of legislative review mechanisms such as this. The intention of review mechanisms is to allow Parliamentary committees, made up of elected representatives, to review the operation of legislation based on public submissions and advice from relevant government departments. What instead happened was that the Committee was forced to speedily consider issues and note them within just eight substantive pages, without proper debate and commentary. Albeit that the Committee will have an opportunity to examine the issues again in its consideration of the Terrorism Suppression Amendment Bill 2007, the reality is that the proposed amendments have now been drawn up entirely by government officials without input from the Committee, whereas a proper review process would have seen the opposite occur. Rather than leaving the Committee with the limited time it was given, section 70 of the Act should instead have been amended to allow the Committee to undertake a proper review of the legislation.
Of interest, neither section 70 nor the Select Committee recommendation for inclusion of the provision identify which provisions of the Terrorism Suppression Act are “provisions of this Act that are to implement New Zealand’s obligations under the Anti-terrorism Resolution”.132 This can, however, be gleaned through close examination of New Zealand’s reports to the Counter-Terrorism Committee in which New Zealand has had to report on how it has given effect to the provisions of resolutions 1373 (2001):
130 Section 70(2) and (3).
131 Foreign Affairs, Defence and Trade Select Committee, Review of the Terrorism Suppression Act 2002 (48th Parliament, November 2005), 1.
132 Section 70(1).
Interestingly, New Zealand’s first report to the Counter-Terrorism Committee identifies compliance with paragraph 2(b) of resolution 1373 as being achieved through legislation other than the Terrorism Suppression Act. This was achieved through amendments to the Crimes Act 1961 and Summary Proceedings Act 1957 (under the Counter-Terrorism Bill 2003), which created the authority to obtain interception warrants, warrants to attach tracking devices to persons or things, deterrence through more severe penalties, and requiring a computer owner or user to provide information to access data subject to security codes and the like.133 Under section 70 of the Terrorism Suppression Act, however, those provisions would not have been the subject of review, since section 70 only required the review of “provisions of this Act that are to implement New Zealand’s obligations under the Anti-Terrorism Resolution” [emphasis added].
Counter-Terrorism Bill 2003
The Counter-Terrorism Bill 2003 was also a multi-purpose piece of legislation: primarily enacted to allow New Zealand to become party to the Plastic Explosives and Nuclear Materials Conventions;134 to implement the remaining obligations under Security Council Resolution 1373;135 and to establish supplementary powers and investigative measures “designed to combat terrorism and address problems encountered by agencies in the investigation and enforcement of [terrorism-related] offences”.136
133 Discussed below, concerning the Counter-Terrorism Bill.
134 See the Foreign Affairs, Defence and Trade Committee, Report on the Counter- Terrorism Bill, A Government Bill, 27-2, Commentary, presented to the House 8 August
2003, 1.
135 Ibid, 1.
Purposes of the Counter-Terrorism Act
As indicated, the Counter-Terrorist Bill was enacted to serve various purposes. Before considering those, and the status of the Bill, it is notable to mention that the Counter-Terrorism Bill was also subject to scrutiny by the New Zealand Crown Law Office, inherent in the execution of the Attorney-General’s function under section 7 of the Bill of Rights Act. Again, the Attorney-General was advised that there appeared to be no inconsistency between the Bill and the Bill of Rights Act.137
Within the scope of the first objective, to allow treaty accession, National Interest Analyses were presented to the House on 22 February 2002 with the accompanying reports of the Foreign Affairs, Defence and Trade Committee.138 The Analyses noted that implementing legislation would need to create new criminal offences prohibiting the movement or use of unmarked plastic explosives and nuclear materials.139 The Counter- Terrorism Bill achieved this through introduction into the Terrorism Suppression Act of sections 13B (use and movement of plastic explosives), 13C (physical protection of nuclear material) and 13D (importation and acquisition of radioactive material) of that Act.140
The National Interest Analyses also considered the question of reporting, registration and monitoring obligations under the relevant treaties. It was noted that the transport safety standards within the Nuclear Materials Convention141 would not require implementation, since New Zealand had already incorporated International Atomic Energy Agency regulations, which contain more stringent requirements than those under
136 Foreign Affairs, Defence and Trade Committee, Counter-Terrorism Bill, A Government Bill, 27-1, Explanatory Note, presented to the House 2 April 2003, 1. See also the report of the Foreign Affairs, Defence and Trade Committee (n 134) 2; and Gobbi (n 48) 265-266.
137 Letter from Crown Counsel to the Attorney General, “re: Counter-Terrorism Bill PCO 4663/14 Our Ref: ATT114/1124 (15)”, 10 December 2002.
138 The Counter-Terrorism Bill was introduced on 17 December 2002.
139 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, Convention on the Marking of Plastic Explosives for the Purpose of Detection, para 13, and
National Interest Analysis, Convention on the Physical Protection of Nuclear Materials, para 21.
140 Note that the unlawful possession of nuclear material and nuclear explosive devices was already prohibited under New Zealand law under the Hazardous Substances and New
Zealand Organisms Act 1996 and the New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987.
141 Above n 110.
the Nuclear Materials Convention.142 The Analysis on the Plastic Explosives Convention reported:143
A reporting and registration regime needs to be put in place adequately to control the existing stock of unmarked plastic explosives in New Zealand. This administrative function is already carried out in relation to other explosives under the Hazardous Substances and New Organisms Act 1996. Slight modifications to the operational procedures under that Act would be required to facilitate plastic explosives of the type covered by the Convention being captured by the tracking and reporting mechanisms of the HSNO Act.
The Counter-Terrorism Bill did not, however, address this issue. To that extent, the plastic explosives reporting and registration regime has not been fully implemented into New Zealand law.144
The Explanatory Notes to the Counter-Terrorism Bill identify two further objectives of implementing the remaining obligations under Security Council resolution 1373 (2001) and establishing investigative powers to assist in the detection of terrorists, terrorist acts and terrorist or associated entities. Within New Zealand’s reports to the Counter-Terrorism Committee, New Zealand similarly identified the various new investigative powers as furthering New Zealand’s compliance with resolution 1373.145 The following provisions of the Counter-Terrorism Bill are relevant in that regard:
142 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, Convention on the Physical Protection of Nuclear Materials, para 20. Incorporation was effected through the Radiation Protection Act 1965.
143 New Zealand Ministry of Foreign Affairs and Trade, National Interest Analysis, Convention on the Marking of Plastic Explosives for the Purpose of Detection, para 14.
144 This is not an issue that will be explored any further, since it does not impact upon the question of the interface between counter-terrorism and human rights.
145 See, infra, chapter 4.
Status of the Counter-Terrorism Bill
What should be noted about this item of legislation is that it does not exist as an Act of Parliament with its own life. As introduced, the Bill was to become a stand-alone Act. Following submissions during the select committee process, however, its provisions were instead incorporated into other extant legislation, namely:
What follows is an overview of the nature, and concerns with, amendments under Parts 1 and 3 of the Counter-Terrorism Bill. Any similar issues relating to Part 2 have been discussed under the above examination of the Terrorism Suppression Act.
Parts 1 and 3 of the Counter-Terrorism Bill
Reflecting the second and third stated purposes of the Counter-Terrorism Bill, to further implement resolution 1373 (2001) and to establish supplementary powers and investigative measures, Parts 1 and 3 of the Bill amended the various items of legislation identified to achieve six main things:
146 Clauses 6 and 7 of the Counter-Terrorism Bill 2003.
jurisdiction over these offences and restrict the ability to prosecute by requiring the consent of the Attorney-General.147
(d) the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act.
Interception and seizure warrants may be authorised for the purpose of detecting activities prejudicial to “security” or for the purpose of gathering foreign intelligence information essential to “security”.155
147 Clauses 4 and 5 of the Counter-Terrorism Bill 2003.
148 Clauses 7B, 8 and 26 of the Counter-Terrorism Bill 2003.
149 Clause 33 of the Counter-Terrorism Bill 2003.
150 Amendments effected under clause 34 of the Counter-Terrorism Bill 2003.
151 See section 200B(2) of the Summary Proceedings Act 1957. This is a matter discussed within chapter 17 of this text.
152 Clause 27 of the Counter-Terrorism Bill 2003.
153 This was a matter included within the definition from 16 November 1977 through section 2(2)(b) of the New Zealand Security Intelligence Service Amendment Act 1977.
154 Section 2 of the New Zealand Security Intelligence Service Act 1969.
In terms of civil and political rights implications, three of the latter amendments clearly have the potential to have an impact: warrants to intercept private communications; and warrants to attach tracking devices to persons or property, each considered in chapter 17. Equally important is the new power of police to require assistance to access computer data, potentially impacting upon the privilege against self-incrimination (see chapter 18).
Other Legislation
As already indicated, there are numerous other pieces of legislation that add, to greater or lesser extents, to the body of what might be described as New Zealand’s terrorism-related legislation. When referring to the Border Security Bill158 and the Maritime Security Bill,159 by way of example,
Customs Minister Rick Barker said this:160
[This] is part of a whole-of-government approach toward strengthening New Zealand’s national security in the post-September 11 environment.
While such legislation does indeed act to strengthen national security and impacts upon counter-terrorism, this chapter has restricted itself to consideration of the seven items of legislation identified. Those enactments and regulations are specifically targeted to New Zealand’s compliance with international anti-terrorism obligations and counter-terrorism within New Zealand.
155 Section 4 of the New Zealand Security Intelligence Service Act 1969.
156 Clause 30 of the Counter-Terrorism Bill 2003.
157 Clause 31 of the Counter-Terrorism Bill 2003.
158 Bill 53-2 introduced to Parliament on 18 June 2003. The Bill passed the second reading on 20 May 2004 but awaits the third reading (as at 1 December 2004).
159 Now the Maritime Security Act 2004, assented to on 5 April 2004.
160 New Zealand Government Press Release, ‘Minister of Customs introduces Border Security Bill’, 18 June 2003.
Conclusion
An examination of New Zealand’s counter-terrorist legislation is not as simple as one might first imagine. This chapter is evidence of that. Although chapter 3 spent some time looking at the international anti- terrorism framework and the obligations that stem from that framework, chapter 4 then considered the nature of those obligations and the means by which the obligations apply in domestic law and/or require acts of transformation. Through that examination it is evident that the obligations upon New Zealand are effectively limited to ones that require transformation into municipal law through legislative action.
Six items of domestic legislation have been identified in this chapter as the vehicles through which transformation has been effected: the Aviation Crimes Act 1972; the Crimes (Internationally Protected Persons, United Nations and Associated Personnel, and Hostages) Act 1980; Maritime Crimes Act 1999; the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001; the Terrorism Suppression Act 2002; and the Counter-Terrorism Act 2003. Although not enacted in response to international counter-terrorist obligations, the International Terrorism (Emergency Powers) Act 1987 has also been identified as documents requiring consideration, since it is an item of legislation addressing counter-terrorism and thereby complementing New Zealand’s participation in the international agenda to suppress terrorism.
Examination of each item of legislation has revealed that New Zealand appears to have, other than in some very minor and usually technical ways, fully implemented its international anti-terrorism obligations. What the preceding analysis did not identify, however, was the failure of New Zealand’s general criminal law to properly prohibit the incitement to terrorism, a matter to be addressed separately in chapter 13. By reviewing the structure and operation of each item of legislation, various provisions have been identified as having the potential to impact upon civil and political rights. Further contributing to this chapter of the book, chapter 11 will consider the extant position on civil and political rights in New Zealand. By establishing the international and domestic law on counter- terrorism and human rights under parts one and two of this book, part three of the text can then consider their interface, doing so within a comparative framework.
Part II:
Terrorism, Counter-Terrorism and Human Rights
Chapter 6
The Interface between Terrorism and Relevant Aspects of International Law
The first part of this text has focussed upon terrorism and counter- terrorism. It has considered the nature of terrorism and the associated problems with arriving at an internationally agree-upon definition of the term which is both concise and comprehensive. Part I of the text has outlined the international framework for countering terrorism, the means by which those international obligations are received into the domestic law of New Zealand, and a synopsis of New Zealand’s corresponding domestic law on counter-terrorism.
This is the first of five chapters in Part II of the text, which consider the relationship of terrorism and counter-terrorism with human rights. This chapter examines, in the main, the relationship between terrorism and human rights. Properly defined, a terrorist act will correspond to proscribed conduct under one of the universal terrorism-related conventions. Such conduct, as will be discussed, attacks the values that lie at the heart of the Charter of the United Nations: respect for human rights; the rule of law; rules of war that protect civilians; tolerance among people and nations; and the peaceful resolution of conflict.1 Depending on the particular circumstances surrounding any given terrorist act, terrorism thus not only impacts upon human rights and the rule of law but may also amount to an act of aggression or use of force within the meaning of Article 39 of the UN Charter, an act committed during the course of an armed conflict, an international criminal law offence, and/or an act which has the result of precluding the actor’s protection under international refugee law. Recognising this dynamic interplay between terrorism and international legal norms, this chapter will therefore also give brief consideration to terrorism and armed conflict, international humanitarian law, and international refugee law.
1 As identified, for example, in the Report of the High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc A/59/565 (2004), para 145.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human
Rights in New Zealand. Electronic copies of this publication, in full or in
part, are available online at
<http://www.lawfoundation.org.nz>
Terrorism, Human Rights and the Rule of Law
States have a duty to protect their societies and to contribute to the maintenance of international peace and security.2 Terrorism is something that must therefore be suppressed and countered by all members of the international community. Before turning to the subject of the impact of terrorism upon human rights, it is useful to first provide a brief explanation of what human rights are, and the significance of this at the international level.
What are “Human Rights”?
Human rights are universal legal guarantees which protect individuals and groups against actions and omissions that interfere with fundamental freedoms, entitlements and human dignity. The full spectrum of human rights involve the respect for, and protection and fulfilment of, civil, cultural, economic, political and social rights, as well as the right to development. Human rights are universal, which means that they belong inherently to all human beings, as well as inter-dependent and indivisible.3
International human rights law is made up of what is known as the ‘International Bill of Human Rights’, together with a number of further subject-specific human rights treaties, as well as customary international law.4 The International Bill of Human Rights is not a treaty itself, but refers to five documents: the Universal Declaration on Human Rights (adopted under a resolution of the General Assembly),5 the International Covenant on Economic, Social and Cultural Rights, the International Covenant on
2 The latter obligation is set out, for example, within the purposes and principles of the
Charter of the United Nations, Articles 1 and 2.
3 See, for example, the Vienna Declaration and Plan of Action (Vienna World Conference
on Human Rights 1993); the Universal Declaration on Human Rights, adopted under General Assembly resolution 217(III) (1948), Article 2; and the Charter of the United Nations, Article 55(c).
4 See the list of treaties set out in the website of the Office of the High Commissioner for Human Rights, International Law, online: <http://www.ohchr.org/english/law/index.htm>
(last accessed on 28 November 2006).
5 Universal Declaration on Human Rights, GA Res 217(III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/Res/3/217 (1948).
Civil and Political Rights, and its two Optional Protocols.6 Added to these are the following core universal human rights treaties: the Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.7 Recently adopted are the International Convention for the Protection of All Persons from Enforced Disappearance, and the International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities.8 There is a growing body of subject-specific treaties and protocols, as well as various regional treaties on the protection of human rights and fundamental freedoms.9
6 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976); and Second Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991). See OHCHR Fact Sheet No 2, The International Bill of Human Rights, online: <http://www.ohchr.org/english/about/publications/docs/fs2.htm> (last accessed on 15 March 2007).
7 Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 9464 UNTS 211 (entered into force 4 January 1969); the Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981); the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 112 (entered into force 26 June 1987); and the
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 43 (entered into force 2 September 1990).
8 International Convention for the Protection of All Persons from Enforced Disappearance, adopted on 13 November 2006 by the Third Committee of the General Assembly; and International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, adopted on 5 December 2006 by the Ad Hoc Committee of the General Assembly on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities.
9 Including, for example, the (European) Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953); the American Convention on Human Rights, 1144
UNTS 123 (entered into force 18 July 1978); the Charter of the Organization of American States, opened for signature in 1948, 119 UNTS 3 (entered into force 13 December 1951); the African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, OAU Doc CAB/LEG/67/3 rev 5, (1982) 21 ILM 58 (entered into force 21 October 1986); and the Arab Charter on Human Rights, adopted by the Arab League Council and opened
International human rights law is not limited to the enumeration of rights within treaties, but also includes rights and freedoms that have become part of customary international law. Many of the rights set out within the Universal Declaration on Human Rights are said to hold this character. The Human Rights Committee has similarly observed that some rights within the International Covenant on Civil and Political Rights (ICCPR) reflect norms of customary international law.10 Furthermore, some rights are recognized as having a special status as norms of jus cogens (peremptory norms of customary international law), which means that there are no circumstances in which derogation of those rights is permissible. The prohibitions of torture, slavery, genocide, racial discrimination, crimes against humanity, and the right to self-determination are widely recognized as peremptory norms, as reflected in the International Law Commission’s Articles on state responsibility.11 The Committee on the Elimination of Racial Discrimination has said that the principle of non-discrimination has also become a norm of jus cogens. 12
Human rights law obliges States to do certain things and prevents them from doing others. States have a duty to respect, protect and fulfil human rights. Respect for human rights involves not interfering with their enjoyment. Protection entails taking steps to ensure that others do not interfere with the enjoyment of rights. The fulfilment of human rights requires that States adopt appropriate measures, including legislative, judicial, administrative or educative measures in order to fulfil their legal obligations.13 A State party may be found equally responsible for attacks by private persons or entities upon the enjoyment of human rights. For
for signature 15 September 1994 (the Charter remains unratified; its unofficial English translation can be found in the ICJ Review 56/1996).
10 Human Rights Committee, Issues Relating to Reservations, CCPR General Comment 24 of 1994, reprinted UN Doc HRI/GEN/1/Rev.6 at 161 (2003) para 8; and Human Rights Committee, States of Emergency (Article 4), CCPR General Comment 29 of 2001, reprinted UN Doc HRI/GEN/1/Rev.6 at 186 (2003) para 13.
11 International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts with commentaries, 2001 (United Nations, 2005) 281 (n 675). See also Prosecutor v Furundzija Case IT-95-17/1 (judgment of 10 December 1998).
12 Committee on the Elimination of Racial Discrimination, “Statement on Racial
Discrimination and Measures to Combat Terrorism”, in Report of the Committee on the Elimination of Racial Discrimination, UN Doc A/57/18, para 107.
13 See Human Rights Committee, Nature of the General Legal Obligation on States Parties to the Covenant, , CCPR General Comment 31, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), paras 5-7.
example, under the ICCPR, State parties have an obligation to take positive measures to ensure that private persons or entities do no inflict torture or cruel, inhuman degrading treatment or punishment on others within their power.14 Human rights law also places a certain responsibility upon States to provide effective remedies in the event of violations.15
Those human rights that are part of customary international law are applicable to all States.16 In the case of human rights treaties, those States that are party to a particular treaty have obligations under that treaty.17 There are various mechanisms for the enforcement of international human rights obligations, including the evaluation by treaty-monitoring bodies of a State’s compliance with certain treaties, and the ability of individuals to complain about the violation of their rights to international bodies. In the case of the ICCPR, the Human Rights Committee receives periodic reports from States parties concerning the implementation and enjoyment of Covenant rights within the State’s territory.18 The Committee also issues general comments on the interpretation and application of various provisions of the ICCPR,19 and receives communications from individuals within the territory of States parties to the ICCPR First Optional Protocol.20 Added to this, and particularly relevant to a number of human rights challenges in countering terrorism, all members of the United Nations are obliged to take joint and separate action in co-operation with the United Nations for the achievement of the purposes set out in Article 55 of the UN Charter, including the universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion.21
The nature of the general legal obligation of States parties is addressed in Article 2 of the ICCPR. As confirmed by the Human Rights Committee in its General Comment 31, the Article 2 obligation upon States to ensure Covenant rights to all persons within their territory and subject to their jurisdiction means that a State party must ensure such rights to anyone within its power or effective control, even if not situated within the territory
14 General Comment 31 (ibid) para 8.
15 General Comment 31 (ibid) paras 15 and 16. In the case of the International Covenant on Civil and Political Rights, this obligation is set out in Article 2(3)(a).
16 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits (1986) ICJ Reports, paras 172-201.
17 See the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Article 34.
18 ICCPR, Article 40.
19 ICCPR, Article 40(4).
20 First Optional Protocol to the ICCPR (n 6).
21 Charter of the United Nations, Articles 55(c) and 56.
of the State party. This means that human rights obligations under the ICCPR have extra-territorial application. Similarly, the International Court of Justice in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories concluded that “the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”22 The Court reached the same conclusion with regard to the applicability of the Convention on the Rights of the Child.23
The enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers and refugees.24
The Impact of Terrorism upon Human Rights and Society
Terrorism has a direct impact on the enjoyment of a number of human rights, in particular on human life, liberty, and physical integrity. Terrorist acts can destabilise governments, undermine civil society, jeopardise peace and security, threaten social and economic development and may negatively affect certain groups. All of these have a direct impact on the enjoyment of fundamental human rights, something recognised in a long line of General Assembly resolutions beginning in 1993 and entitled “Terrorism and Human Rights”.25 Echoing many of the expressions of concern contained in the General Assembly’s Declarations on Measures to Eliminate International Terrorism,26 the preamble to the first of these resolutions spoke of the serious concern of the General Assembly at the gross violations of human rights perpetrated by terrorist groups. Resolutions since 1995 did the same, adding that terrorism creates an environment that destroys the right of people to live in freedom from fear.27
22 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion (2004) ICJ Reports para. 111.
23 Ibid, para. 113.
24 General Comment 31 (n 13).
25 GA Res 48/122, UN GAOR, 48th Sess, 85th Plen Mtg, UN Doc A/Res/48/122 (1993).
26 See, infra, chapter 3.
27 GA Res 50/186, UN GAOR, 50th Sess, 99th Plen Mtg, UN Doc A/Res/50/186 (1995) preambular paras 3, 4, 5 and 11, and operative para 2; GA Res 52/133, UN GAOR, 52nd
Sess, 70th Plen Mtg, UN Doc A/Res/52/133 (1997) preambular paras 6, 7, 8 and 10, and operative para 3; GA Res 54/164, UN GAOR, 54th Sess, 83rd Plen Mtg, UN Doc A/Res/54/164 (1999) preambular paras 7, 8, 9 and 12, and operative para 3; GA Res 56/160, UN GAOR, 56th Sess, 88th Plen Mtg, UN Doc A/Res/56/160 (2001) preambular paras 11, 12 and 13; GA Res 58/174, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc
The preamble to the Assembly’s resolution 56/160 (2001) added:28
Noting the growing consciousness within the international community of the negative effects of terrorism in all its forms and manifestations on the full enjoyment of human rights and fundamental freedoms and on the establishment of the rule of law and domestic freedoms as enshrined in the Charter of the United Nations and the International Covenants on Human Rights.
The destructive impact of terrorism upon human rights and security has been recognised by the Security Council, the General Assembly and the Commission on Human Rights alike. Member States have identified terrorism as something which:
A/Res/58/174 (2003) preambular paras 12, 13 and 14; and GA Res 59/195, UN GAOR, 59th Sess, 74th Plen Mtg, UN Doc A/Res/59/195 (2004) preambular paras 12 and 13.
28 GA Res 56/160 (ibid).
29 For resolutions of the Security Council, see: SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001), para 4; SC Res 1456, UN SCOR, 4706th Mtg, UN Doc S/Res/1456 (2003), preambular paras 3 and 6; and SC Res 1540, UN SCOR, 4956th Mtg, UN Doc S/Res/1540 (2004), preambular para 8. By the General Assembly, see: GA Res 58/136, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/Res/58/136 (2004), preambular para 8. For
resolutions of the Commission on Human Rights, see: CHR Res 2001/37, Human Rights and Terrorism, UN Doc E/CN.4/Res/2001/37, preambular para 16; and CHR Res 2004/44, Human Rights and Terrorism, UN Doc E/CN.4/Res/2004/44, preambular para 7. See also the report of the Sub-Commission Special Rapporteur, Kalliope Koufa, Progress Report on Terrorism and Human Rights, UN Doc E/CN.4/Sub.2/2001/31, paras 104 and 105.
30 For resolutions of the General Assembly, see: GA Res 48/122, UN GAOR, 48th Sess, 85th Plen Mtg, UN Doc A/Res/48/122 (1993), preambular para 7; GA Res 49/185, UN GAOR, 49th Sess, 94th Plen Mtg, UN Doc A/Res49/185 (1994), preambular para 9; GA Res 50/186
(ibid) preambular para 12 and operative para 2; GA Res 52/133, UN GAOR, 52nd Sess, 70th Plen Mtg, UN Doc A/Res/52/133 (1997), preambular para 11; GA Res 54/164, UN GAOR, 54th Sess, 83rd Plen Mtg, UN Doc A/Res/54/164 (1999) preambular para 13; GA Res 56/160, UN GAOR, 56th Sess, 88th Plen Mtg, UN Doc 56/160 (2001), preambular para 18; and GA Res 58/174, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/Res/ 58/174 (2003), para 12. For resolutions of the Commission on Human Rights, see: CHR Res 2001/37 (ibid) preambular para 16; and CHR Res 2004/44 (ibid) preambular para 7. See also Koufa (ibid) paras 104 and 105.
31 For resolutions of the Security Council, see: SC Res 1269, UN SCOR, 54th Sess, 4053rd Mtg, UN Doc S/Res/1269 (1999), preambular para 1; and SC Res 1377, UN SCOR, 55th Sess, 4413rd Mtg, UN Doc S/Res/1377 (2001), Annex (Declaration), para 6. See also the first operative paragraphs of the following General Assembly resolutions: GA Res 3034 (XXVII), UN GAOR, 27th Sess, 2114th Plen Mtg, UN Doc A/Res/27/3034 (1972); GA Res 31/102, UN GAOR, 31st Sess, 99th Plen Mtg, UN Doc A/Res/31/102 (1976); GA Res
32/147, UN GAOR, 32nd Sess, 105th Plen Mtg, UN Doc A/Res/32/147 (1977); GA Res 34/145, UN GAOR, 34th Sess, 105th Plen Mtg, UN Doc A/Res/34/145 (1979); and GA Res 36/109, UN GAOR, 36th Sess, UN Doc A/Res/36/109 (1981). For resolutions of the Commission on Human Rights, see: CHR Res 2001/37 (n 29) para 2; and CHR Res 2004/44 (n 29) preambular para 7. See also Koufa (n 29) para 109.
32 For resolutions of the General Assembly, see: GA Res 50/186 (n 30) preambular para 5; GA Res 52/133 (n 30) preambular para 8; and GA Res 54/164 (n 30) preambular para 9. For
resolutions of the Commission on Human Rights, see: CHR Res 2001/37 (n 29) preambular para 12, and operative para 2; and CHR Res 2004/44 (n 29) preambular para 12. See also Sub-Commission on Human Rights Resolution 2001/18, Human Rights and Terrorism, UN Doc E/CN.4/Sub.2/Res/2001/18, preambular para 8.
33 See SC Res 1377 (n 31) Annex (Declaration), para 6. See also CHR Res 2001/37 (n 29) para 2; and Koufa (n 29) para 107.
34 See GA Res 56/160 (n 30) preambular para 24. For resolutions of the Commission on Human Rights, see: CHR Res 2001/37 (n 29) preambular para 13, and operative para 1; and CHR Res 2004/44 (n 29) preambular para 13. See also Sub-Commission on Human Rights
Resolution 2001/18 (n 32) preambular para 9.
35 See the following resolutions of the General Assembly: GA Res 48/122 (n 30) para 1; GA Res 49/185 (n 30) para 1; GA Res 50/186 (n 30) para 2; GA Res 52/133 (n 30) para 3; GA Res 56/160 (n 30) preambular para 24 and para 3; and GA Res 58/174 (n 30) para 1. For resolutions of the Commission on Human Rights, see: CHR Res 2001/37 (n 29) preambular para 23, and operative para 1; and CHR Res 2004/44 (n 29) preambular para 12, and operative para 1.
36 As recognised in the first-stated Declaration on Measures to Eliminate International
Terrorism, adopted under GA Res 49/60, UN GAOR, 49th Sess, 84th Plen Mtg, UN Doc A/Res/49/60 (1994), operative para 2. For resolutions of the General Assembly, see also: GA Res 48/122 (n 30) para 1; GA Res 49/185 (n 30) para 1; GA Res 50/186 (n 30) para 2; GA Res 52/133 (n 30) para 3; GA Res 56/160 (n 30) preambular para 24 and operative para 3; and GA Res 58/174 (n 30) para 1. For resolutions of the Commission on Human Rights, see: CHR Res 2001/37 (n 29) preambular para 23, and operative para 1; and CHR Res 2004/44 (n 29) preambular para 12 and 23, and operative para 1. See also Report of the High-level Panel on Threats, Challenges and Change (n 1) para 145.
37 As recognised in the first-stated Declaration on Measures to Eliminate International Terrorism (ibid) operative para 2. For resolutions of the General Assembly, see also: GA Res 48/122 (n 30) para 1; GA Res 49/185 (n 30) para 1; GA Res 50/186 (n 30) para 2; GA Res 52/133 (n 30) para 3; GA Res 56/160 (n 30) preambular para 24 and operative para 3; and GA Res 58/174 (n 30) para 1. For resolutions of the Commission on Human Rights, see: CHR Res 2001/37 (n 29) para 1; and CHR Res 2004/44 (n 29) para 1. See also Report of the High-Level Panel (n 1) para 145.
38 As recognised in the first-stated Declaration on Measures to Eliminate International Terrorism (n 36) operative para 2. For resolutions of the General Assembly, see also: GA Res 48/122 (n 30) para 1; GA Res 49/185 (n 30) para 1; GA Res 50/186 (n 30) para 2; GA
Res 52/133 (n 30) para 3; GA Res 56/160 (n 30) para 3; and GA Res 58/174 (n 30) para 1. For resolutions of the Commission on Human Rights, see: CHR Res 2001/37 (n 29) preambular para 13; and CHR Res 2004/44 (n 29) preambular para 13, and operative para 1. See also Sub-Commission on Human Rights Resolution 2001/18 (n 32) preambular para 9.
39 For resolutions of the General Assembly, see: GA Res 48/122 (n 30) para 1; GA Res 49/185 (n 30) para 1; GA Res 50/186 (n 30) para 2; GA Res 52/133 (n 30) para 3; GA Res 56/160 (n 30) para 3; and GA Res 58/174 (n 30) para 1. For resolutions of the Commission on Human Rights, see also: CHR Res 2001/37 (n 29) para 1; and CHR Res 2004/44 (n 29) para 1.
40 See SC Res 1377 (n 31) Annex (Declaration), para 6. For resolutions of the General Assembly, see: GA Res 48/122 (n 30) para 1; GA Res 49/185 (n 30) para 1; GA Res 50/186 (n 30) para 2; GA Res 52/133 (n 30) para 3; GA Res 56/160 (n 30) para 3; and GA Res 58/174 (n 30) para 1. For resolutions of the Commission on Human Rights, see: CHR Res 2001/37 (n 29) para 1; and CHR Res 2004/44 (n 29) para 1.
41 For resolutions of the Security Council, see: SC Res 1189, UN SCOR, 3915th Mtg, UN Doc S/Res/1189 (1998), preambular para 2; SC Res 1373 (n 29) para 5; and SC Res 1377 (n
31) Annex (Declaration), para 5. See also GA Res 51/210, UN GAOR, 51st Sess, 88th Plen Mtg, UN Doc 51/210 (1996), para 2. See also Report of the High-level Panel on Threats (n
1) para 145.
42 See the first operative paras of the following resolutions of the General Assembly: GA
Res 38/130, UN GAOR, 38th Sess, 101st Plen Mtg, UN Doc A/Res/38/130 (1983); GA Res 40/61, UN GAOR, 40th Sess, 108th Plen Mtg, UN Doc A/Res/40/61 (1985); GA Res 42/159, UN GAOR, 42nd Sess, 94th Plen Mtg, UN Doc A/Res/42/159 (1987); GA Res 44/29, UN GAOR, 44th Sess, 72nd Plen Mtg, UN Doc A/Res/44/29 (1989); and GA Res 51/210 (ibid). See also Report of the High-level Panel on Threats (n 1) para 145.
Terrorism and Armed Conflict
The relationship between terrorism and armed conflict, and the applicable norms of international law, is one of the most challenging issues facing international law compliance today. It is first relevant to recognise that, as well as conduct by non-State actors, States can themselves perpetrate or be responsible for acts of terrorism, either within their own territory or against other States. In considering terrorism and armed conflict, it is then necessary to distinguish between two categories of international legal rules: those rules governing the use of force between States (jus ad bellum); and
43 See GA Res 38/130 (ibid) para 1. See also the third operative paras of the following resolutions of the General Assembly: GA Res 40/61 (ibid); GA Res 42/159 (ibid); and GA Res 44/29 (ibid).
44 For resolutions of the Security Council, see: SC Res 1189 (n 41) preambular para 2; and SC Res 1377 (n 31) Annex (Declaration), para 3. See also the first-stated Declaration on Measures to Eliminate International Terrorism (n 36) preambular para 3 and operative para
45 See: SC Res 1189 (n 41); preambular para 2; SC Res 1368, UN SCOR, 4370th Mtg, UN
Doc S/Res/1368 (2001) preambular para 1; SC Res 1373 (n 29) preambular para 3; SC Res 1377 (n 31) preambular para 2; SC Res 1390, UN SCOR, 4452nd Mtg, UN Doc S/Res/1390 (2001), preambular para 9; SC Res 1438, UN SCOR, 4624th Mtg, UN Doc S/Res/1438 (2002), preambular para 2; SC Res 1440, UN SCOR, 4632nd Mtg, UN Doc S/Res/1440 (2002), preambular para 2; SC Res 1450, UN SCOR, 4667th Mtg, UN Doc S/Res/1450 (2002), preambular para 4; SC Res 1455, UN SCOR, 4686th Mtg, UN Doc S/Res/1455 (2003), preambular para 7; SC Res 1456, UN SCOR, 4688th Mtg, UN Doc S/Res/1456 (2003), preambular para 1; SC Res 1526, UN SCOR, 4908th Mtg, UN Doc S/Res/1526 (2004), preambular para 3; SC Res 1530, UN SCOR, 4923rd Mtg, UN Doc S/Res/1530 (2004), preambular para 2; SC Res 1535, UN SCOR, 4936th Mtg, S/Res/1535 (2004), preambular para 2; and SC Res 1566, UN SCOR, 5053rd Mtg, UN Doc S/Res/1566 (2004), preambular para 7.
46 For resolutions of the Security Council, see: SC Res 1189 (n 41) preambular para 3; and
SC Res 1269 (n 31) preambular para 8.
those governing the actual conduct of hostilities (jus in bello, also known as international humanitarian law).
The Use of Force between States (Jus ad Bellum)
The Charter of the United Nations contains a general prohibition against the use of force, or threat of the use of force, between States.47 This prohibition is recognised by many as representing a peremptory norm of international law, meaning that force between States is only permitted within the limited exceptions contained within the Charter.48 The first such exception is where the Security Council authorises the use of military action under Chapter VII of the Charter. The other is the codified and expanded right of inherent and collective self defence, as set out in Article 51 of the Charter. The military intervention in Afghanistan in 2002, following the September 11 terrorist attacks in the United States, for example, was undertaken in reliance upon Article 51.49 Contrasting positions are held on the question of whether the pre-Charter right to anticipatory self-defence continues to exist.50 Following the events of 9/11, aticipatory self-defence was used as the primary basis, for example, upon which the United States of America adopted its policy of pre-emptive strikes against States harbouring or supporting terrorists.51
The significance of these rules in the context of terrorism is two-fold. First, States are prohibited from committing acts which constitute a threat to the peace, breach of the peace, or act of aggression.52 As noted in the preceding section, terrorism has been identified by the Security Council as a threat to international peace and security, and the commission of acts of international terrorism by States is therefore prohibited. Included within this prohibition is the support by a State of such conduct by a non-State
47 Charter of the United Nations, Article 2(4).
48 See, for example, the judgment of Sir Ivor Jennings in Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), Merits Phase [1986] ICJ Reports 4, 518-524; and Louis Henkin, Richard Pugh, Oscar Schachter and Hans Smit, International Law Cases and Materials (St Paul, 1980) 910.
49 For an analysis of this intervention and the issues arising from it, see Alex Conte, Security in the 21st Century: The United Nations, Afghanistan and Iraq (London: Ashgate Publishing
Limited, 2005), chapter 6.
50 See, for example: Anthony Arend, ‘International Law and the Preemptive Use of Military Force’ (2003) 26(2) The Washington Quarterly 89; and Ian Brownlie, International Law and the Use of Force by States (Oxford, Clarendon Press, 1963) 275.
51 See the National Security Strategy of the United States of America (2002), online:
<http://www.whitehouse.government/nsc/nss.html> (last accessed on 9 February 2004). For consideration of the policy and its legality, see Conte (n 49) chapter 5.
52 Charter of the United Nations, Articles 2(4) and 39.
actor, where that level of support would incur international responsibility.53 The second consequence of the accepted rules on the use of force is that any military action by a State in response to an act of terrorism must either be consequent to an express authorisation by the Security Council, or in response to a terrorist act which is attributable to a State and constitutes an armed attack within the terms of Article 51.
International Humanitarian Law (Jus in Bello)
International humanitarian law contains a set of rules dealing with the protection of persons in armed conflict, as well as the conduct of hostilities. These rules are reflected in a number of treaties, including the four Geneva Conventions and their two Additional Protocols, as well as a number of other international instruments aimed at reducing human suffering in armed conflict.54 Many provisions of these treaties are now recognised as forming part of customary international law.55
There is no explicit definition of ‘terrorism’ in international humanitarian law. However, international humanitarian law prohibits many acts committed in armed conflict which would be considered terrorist acts if they were committed in times of peace.56 For example, deliberate acts of violence against civilians and civilian objects constitute war crimes under international law for which, according to the principle of universal
53 See the Articles on the Responsibility of States for Internationally Wrongful Acts, adopted under GA Res 56/83, UN GAOR, 56th sess, 85th plen mtg, UN Doc A/Res/56/83 (2001).
54 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), opened for signature 12 August 1949, 75 UNTS 32 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
(Second Geneva Convention), opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), opened for signature 12 August 1949, 75 UNTS 136 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), opened for signature 12 August 1949, 75 UNTS 288 (entered into force 21 October 1950); and Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (First Protocol), opened for signature 8 June 1977, 1125 UNTS 4 (entered into force 7 December 1978); and Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non- International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 610 (entered
into force 7 December 1978).
55 See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, 3 Vols, (University Press, Cambridge, 2004).
56 See International Committee of the Red Cross, ‘International humanitarian law and terrorism: questions and answers’, online: <www.icrc.org> (last accessed 15 April 2007).
jurisdiction, individuals may be prosecuted by all States. This rule derives from a fundamental principle of international humanitarian law related to the protection of civilians in armed conflict, the principle of distinction. According to this principle, all parties to a conflict must at all times distinguish between civilians and combatants. In essence, this means that attacks may be directed only at military objectives – those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. Civilians may only be targeted for such time as they participate directly in the hostilities.
Indiscriminate attacks are strictly prohibited under international humanitarian law. This includes attacks which are not directed at a specific military objective, employ a method or means of combat which cannot be directed at a specific military objective, or employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law, and consequently are of a nature to strike military objectives and civilians or civilian objects without distinction.
International humanitarian law also specifically prohibits “measures of terrorism” or “acts of terrorism”. These prohibitions aim to highlight the individual criminal accountability and protect against collective punishment and “all measures of intimidation or of terrorism”.57 More specifically, “acts or threats of violence the primary purpose of which is to spread terror among the civilian population” are strictly prohibited under international humanitarian law.58 According to the International Committee of the Red Cross, while even a lawful attack on a military objective may spread fear among civilians, these provisions seek to prohibit attacks that specifically aim to terrorise civilians, for example campaigns of shelling or sniping of civilians in urban areas.59
It is important to note that in addition to international humanitarian law, international human rights law continues to apply during armed conflict, subject only to certain permissible limitations in accordance with the strict requirements contained in international human rights treaties.60 In essence,
57 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (n 54) Article 33.
58 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the
Protection of Victims of International Armed Conflicts (n 54) Article 13(2). See further, infra, chapter 2.
59 See International Committee of the Red Cross, ‘International humanitarian law and terrorism: questions and answers’, online: <www.icrc.org> (last accessed 15 April 2007).
60 See, infra, chapter 3.
the difference between the two bodies of law is that whilst human rights law protects the individual at all times, international humanitarian law is the lex specialis which applies only in situations of armed conflict. In this regard, the Human Rights Committee has stated that the ICCPR:61
...applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While in respect of certain Covenant rights, more specific rules of international humanitarian law may be especially relevant for the purpose of the interpretation of the Covenant rights, both spheres of law are complementary, not mutually exclusive.
The International Court of Justice has also affirmed the applicability of ICCPR during armed conflicts, stating that: 62
The right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what constitutes an arbitrary deprivation of life, however, then must be determined by the applicable lex specialis, namely, the law applicable in armed conflict.
In its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, the Court further considered the applicability of human rights law in times of armed conflict, stating that “the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the [ICCPR]”.63 Most recently, the Court applied both human rights law and international humanitarian law to the armed conflict between the Congo and Uganda.64
Terrorism and International Criminal Law
International instruments and law concerning crimes at the international level can be thought of on two levels. At a more general level, international criminal law establishes obligations upon States to prosecute and punish certain conduct. International criminal law also requires States to take legislative action to establish offences or mechanisms for international
61 General Comment 31 (n 13).
62 Military and Paramilitary Activities Case (n 16) para 25.
63 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion (2004) ICJ Rep, para 106.
64 Case Concerning Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v Uganda), Merits (2005) ICJ Rep, paras 216-220, and 345(3).
cooperation. As considered in chapter 3, the international community has developed 13 conventions relating to the prevention and suppression of terrorism. These instruments illustrate both features of international criminal law. They require States to criminalise specific conduct, ranging from the unlawful seizure of aircraft and the taking of hostages, to the financial support of terrorist and associated entities. The conventions also facilitate international cooperation by requiring States parties to establish certain jurisdictional criteria, including the principle aut dedere aut judicare (the ‘extradite or prosecute’ principle), and provide a legal basis for cooperation in the areas of extradition and mutual legal assistance.
Depending upon the context in which a terrorist act occurs, acts of terrorism may also constitute offences under other instruments or norms of international criminal law. During the elaboration of the Rome Statute of the International Criminal Court, several delegations argued for the inclusion of a separate crime of terrorism in the jurisdiction of the International Criminal Court.65 The majority of States disagreed, however, precisely because of the issue of the definition. The Final Act of the Diplomatic Conference of Plenipotentiaries on the Establishment of the ICC, adopted in Rome on 17 July 1998, recommended that a Review Conference, which may take place seven years following the entry into force of the Statute, in 2009, should consider the inclusion of several crimes within the jurisdiction of the Court, including terrorism, with a view to arriving at an acceptable definition.66
Although the Rome Statute does not include the crime of terrorism as a separate crime, it does contain various offences which may include terrorist conduct, depending on the particular facts and circumstances of each case. A terrorist act might constitute a crime against humanity, an offence defined under Article 7 of the Statute to include certain acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.67 War crimes, as defined under Article 8 of the Rome Statute, may also be applicable including, for example, the deliberate or indiscriminate killing of (or causing great suffering or serious bodily injury to) a person protected under the Geneva Conventions.
65 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
66 Reflected within the Rome Statute (ibid) Article 123(1).
67 Christopher Greenwood, ‘International Law and the “War against Terrorism” (2002) 78(2) International Affairs 301, 305 (n 15). In 2001, the then UN High Commissioner for Human Rights described the terrorist attacks which occurred in the United States on 11 September 2001 as a crime against humanity.
The international criminal law provisions against terrorism have also been addressed in practice by international tribunals. In 2003, the International Criminal Tribunal for the Former Yugoslavia convicted, for the first time, an individual for his responsibility for the war crime of terror against the civilian population in Sarajevo, under Article 3 of its Statute.68 The Court concluded that the crime of terror against the civilian population is constituted of elements common to other war crimes. Drawing from the International Convention for the Suppression of the Financing of Terrorism,69 the Court added the following three requirements:70
Terrorism and International Refugee Law
International refugee law is the body of law which provides a legal framework for the protection of refugees by defining the term ‘refugee’, setting out States’ obligations to them, and establishing standards for their treatment. Aspects of international refugee law also relate to persons seeking asylum. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol are the two universal instruments in the field of international refugee law.71 The Convention and its Protocol incorporate a system of checks and balances that are able of taking account of the security interests of States and host communities while protecting the rights of persons who, unlike other categories of foreigners, no longer enjoy the protection of their country of origin.
68 See the Statute of the International Criminal Tribunal for the Former Yugoslavia, as initially adopted by the Security Council under SC Res 827, UN SCOR, 3217th Mtg, UN Doc S/Res/827 (1993).
69 International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992).
70 Prosecutor v Galic, Case No IT-98-29-T (Judgment of the Trial Chamber, 5 December 2003), para 133.
71 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189
UNTS 150 (entered into force 21 April 1954); and Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4
October 1967).
It has already been mentioned that the Security Council has obliged States, under its resolution 1373 (2001) to take a number of measures to prevent terrorist activities and to criminalise various forms of terrorist conduct.72 The resolution touches upon a number of issues related to immigration and refugee status. States are required, for example, to prevent the movement of terrorists by implementing effective border controls and take measures to secure the integrity of identity papers and travel documents (para 2(g)). States are also called upon to take measures to ensure that refugee status is not granted to asylum-seekers that have planned, facilitated or participated in the commission of terrorist acts (para 3(f)), and to ensure that refugee status is not abused by perpetrators, organisers or facilitators of terrorist acts (para 3(g)).
It should be noted that resolution 1373 (2001) did not introduce new obligations into international refugee law. The 1951 Convention, when properly implemented, ensures that international refugee protection is not extended to those who have induced, facilitated or perpetrated terrorist acts. The UN High Commissioner for Refugees (UNHCR) has endorsed the position that those responsible for committing terrorist acts must not be permitted to manipulate refugee mechanisms in order to find safe haven or achieve impunity.73 The framework of international refugee law contains a number of provisions aimed at guarding against abuse and is thus able to respond to possible exploitation of refugee mechanisms by those responsible for terrorist acts.
First, refugee status may only be granted to those who fulfill the criteria of the refugee definition contained in Article 1A of the Convention; that is, those who have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. In many cases, persons responsible for terrorist acts may not fear persecution for a Convention reason, but rather may be fleeing legitimate prosecution for criminal acts they have committed.
Secondly, according to Article 1F of the Convention, persons who would otherwise meet the refugee criteria of Article 1A are to be excluded from international refugee protection if there are serious reasons for considering that they have committed a war crime, a crime against humanity, a serious non-political crime outside the country of refuge prior to admission to that country as a refugee, or have been guilty of acts
72 See, infra, chapter 3.
73 See, for example, the following reports of the UN High Commissioner for Refugees: UNHCR, Ten Refugee Protection Concerns in the Aftermath of September 11 (October 2001); and UNHCR, Addressing Security Concerns with Undermining Refugee Protection – UNHCR’s perspective (November 2001).
contrary to the purposes and principles of the United Nations. Particularly relevant is Article 1F(b), which relates to the commission of a serious non- political crime by an asylum-seeker prior to the person’s admission to the country of refuge. Acts which bear the characteristics of terrorism will almost invariably amount to serious non-political crimes.74 The UNHCR has issued guidelines on the application of exclusion clauses under the Convention noting, in particular, their exceptional nature and the need for their scrupulous application.75
While indications of an asylum-seeker’s involvement in acts of terrorism would make it necessary to examine the applicability of Article 1F, international refugee law requires an assessment of the context and circumstances of the individual case in a fair and efficient procedure before any decision is taken. Any summary rejection of asylum-seekers, including at borders or points of entry, may amount to refoulement, which is prohibited by international refugee and human rights law. All persons have the right to seek asylum.76
Thirdly, persons who have been recognised as refugees, as well as asylum-seekers who are awaiting a determination of their claims, are bound to conform to the laws and regulations of their host country, as reflected within Article 2 of the Convention. If they do not do so, they may be prosecuted to the full extent of the law.
In addition, it is also relevant that exceptions to the principle of non- refoulement exist under Article 33(2). Denial of protection from refoulement and return to the country of origin is foreseen in cases where there are reasonable grounds for regarding a refugee as a danger to the security of the country in which the person is, or, if having been convicted of a particularly serious crime, constitutes a danger to the community of the host State. Finally, the Convention provides for the possibility of expulsion to a third country on national security grounds under Article 32. Implementation of either of these articles may only be carried out following a decision taken by a competent authority in accordance with due process of law, including the right to be heard and the right of appeal. The application of either Article 32 or 33(2) is also subject to the various other human rights obligations of the State.
74 Provided that such acts do in fact bear such characteristics – see, infra, chapters 2 and 16.
75 See: UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, UN Doc
HCR/GIP/03/05 (2003); and UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (2003).
76 See the Universal Declaration of Human Rights (n 5) Article 14.
In cases where a person has already been granted refugee status, such status may be cancelled where there are grounds for considering that a person should not have been granted refugee status. This is the case where there are indications that, at the time of the initial decision, the applicant did not meet the inclusion criteria of the Convention, or that an exclusion clause of that Convention should have been applied to him or her. This might include evidence that the person committed terrorist acts.77 Cancellation of refugee status is in keeping with the object and purpose of the Convention if it is established, by proper procedures, that person did not fall within the refugee definition at time of recognition.
77 See UNHCR, Note on the Cancellation of Refugee Status, 22 November 2004.
Chapter 7
The Promotion and Protection of Human Rights While Countering Terrorism
The relationship between terrorism and human rights is a matter that has been reflected upon by the United Nations General Assembly and Commission on Human Rights, and to a more limited extent by the UN Security Council, well before the events of September 11, 2001. Only little consideration had been given, however, to the potentially negative impact of counter-terrorism upon human rights. Since 9/11, however, with events such as the establishment of the detention camp in Guantanamo Bay and the proliferation of security and counter-terrorist legislation throughout the world, a considerable amount of attention has been paid to the issue of the extent to which counter-terrorism impacts upon human rights.
This chapter considers and explains a framework document developed by the author as part of the New Zealand Law Foundation International Research Fellowship in a project undertaken at the International Policy Institute on Counter-Terrorism (ICT) in Israel, with the assistance of the founder of the Institute, Dr Boaz Ganor. The document, which has developed somewhat since its initial inception, is entitled “A Guide to Legislators, Policy-Makers and Judges on Human Rights Compliance When Countering Terrorism” (Appendix 1 to this text). It seeks to address the issue of what human rights compliance means and how it is to be achieved in the context of counter-terrorism law and practice. Particular emphasis is placed upon the development of a test to determine the balance between counter-terrorism and human rights claims and the identification of relevant factors to be considered in the application of that test.
Four years on from 9/11, the 2005 ICT Project on Human Rights Compliance When Countering Terrorism sought to take stock of international and regional commentary on the subject, and the move from various quarters to establish an international framework for human rights compliance when countering terrorism.1 The first substantive part of the Project was to consider the general issue of the interface between counter-
1 Alex Conte and Boaz Ganor, Legal and Policy Issues in Establishing an International Framework for Human Rights Compliance When Countering Terrorism (Herzelia: International Policy Institute on Counter-Terrorism, 2005).
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
terrorism and human rights: the relevance of human rights when countering terrorism; what human rights compliance demands (in either absolute or qualified terms); the general approaches to the latter question within various international and regional guidelines (which essentially advocate a qualified approach to human rights compliance when countering terrorism); whether the nature of terrorism justifies such a qualified methodology; and how treaty-monitoring bodies are likely to respond to this. Little comparison of the guidelines mentioned had otherwise been undertaken, nor consideration given to whether the qualified approach called for within those guidelines is appropriate in the context of countering terrorism. More importantly, while the various guidelines offer general advice on when limitations upon rights are justifiable (with some helpful rights-based analyses), they suffer from a lack of specific and practical advice on how to strike a proper balance between counter-terrorism and the unlimited enjoyment of human rights. Thus, the second substantive part of the Project was to give careful consideration to the means by which counter-terrorist measures should be evaluated when such measures seek to impose rights limitations. Particular attention was paid to an issue that has lacked constructive deliberation: how to assess proportionality between the two objectives of countering terrorism and maintaining human rights standards.
Against the background of these analyses, the Project drew up the Guide (now refined to a four-step process for assessing the permissibility of counter-terrorist measures). The Guide is outlined and explained in this chapter by identifying each of the advocated steps and providing commentary upon them. The preparation of this Guide was motivated by recognition that legislators and policy-makers are faced with difficult choices in determining the proper boundary between the two pressing public objectives of countering terrorism and maintaining human rights. At the international level, States are told that they must do both and, domestically, the public demands no less. Decision-makers will be easily criticised for adopting legislative or other action that fails to find a proportional balance between the two aspirations. When called to rule upon the legality of counter-terrorist measures, judges are similarly placed in a position of balancing due deference to national interest decisions and considerations of the State against their role to uphold constitutionally protected rights and applicable standards of international human rights.
An important point about language should be noted. Deliberate reference is made to the balancing of counter-terrorism with the ‘unlimited enjoyment of human rights’ (or with ‘human rights claims’), rather than of a balance between counter-terrorism and human rights. The distinction might seem semantic but its consequences are significant. To speak of a
‘balance between counter-terrorism and human rights’ might be seen to imply that there is still room for balancing after an all-things-considered human rights analysis. This is not the intention of the Guide. As a whole, it is based upon the fact that the balancing of objectives is part of a human rights analysis, rather than something consequent to it. Counter-terrorism objectives are fully taken into account in this process. The result can threfore be described as an all-things-considered human rights assessment, which leaves no room for any further ‘balancing’.
The desired benefits of the Guide are two-fold. First, to provide practical and functional assistance to decision-makers on the subject. Second, to do so in a manner that is able to give proper account to a State’s international human rights obligations, while at the same time recognising the duty of States to protect their societies and to contribute to the maintenance of international peace and security,2 and to ensure that an accurate and balanced account is taken of the imperatives of, and difficulties in, countering terrorism.
Compliance with Human Rights While Countering Terrorism
The Guide, as revised, is divided into two parts. The first address the general issue of the need to comply with human rights obligations and what, in practical and legal terms, human rights ‘compliance’ means. The second part of the Guide addresses the particular requirements of necessity and proportionality: the requirement that any limitation of rights must be necessary in the pursuit of a pressing and substantial objective in a free and democratic society and that this must be effected by proportional means.
As to the first part of the Guide, and before considering the actual steps involved in the interface process, the starting point is to explain why States must comply with human rights when countering terrorism. There are three points to be made in this regard. First, in his 2006 report setting out recommendations for a global counter-terrorism strategy, the UN Secretary- General emphasised that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing ones.3 He identified the defence of human rights as essential to the fulfilment of all aspects of an effective counter-terrorism
2 The latter obligation is set out, for example, within the purposes and principles of the
Charter of the United Nations, Articles 1 and 2. See further, infra, chapter 6.
3 Report of the Secretary-General, Uniting Against Terrorism: Recommendations for a Global Counter-terrorism Strategy, UN Doc A/60/825 (2006), para 5. See also Part VI of the Report.
strategy and identified human rights as having a central role in every substantive section of his report. The Secretary-General identified that: “Only by honouring and strengthening the human rights of all can the international community succeed in its efforts to fight this scourge”.4 Secondly, an obvious point should be made about the nature of international law obligations.5 Not only are human rights essential to the countering of terrorism, but States are obliged by law to comply with their international human rights obligations when countering terrorism. This is due to the fact that States have obligations under customary international law (applicable to all States)6 and international treaties (applicable to States parties to such treaties).7 Notably, in this regard, the Guide talks of applicable human rights law (whether in the form of customary norms that are opposable to the State giving consideration to the Guide, or in the form of obligations under human rights treaties to which the State is a party). International lawyers, and human rights advocates in particular, must remember that not all human rights standards translate into binding obligations upon States, although they might certainly possess moral weight that should be borne in mind by a State.
The third point to be made is that this first-stated principle is based not just upon a State’s international obligations, but also upon directions of the United Nations Security Council, General Assembly, and Commission on Human Rights. It was also a clear message of the 2005 World Summit Outcome on the question of respect for human rights while countering terrorism that:8
...international cooperation to fight terrorism must be conducted in conformity with international law, including the Charter and relevant international conventions and protocols. States must ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights law, refugee law and international humanitarian law.
Resolutions of the UN General Assembly
Mention has already been made in chapter 3 of the adoption by the UN General Assembly of a series of resolutions concerning terrorism since 1972, initially taking the form of resolutions concerning measures to
4 Ibid, para 118.
5 See further, infra, chapter 6.
6 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Reports, paras 172-201.
7 See the Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 34.
eliminate international terrorism, and then addressing more directly the topic of terrorism, counter-terrorism and human rights. This second series of General Assembly resolutions began in late December 1993, with the adoption of resolution 48/122, entitled “Terrorism and Human Rights”.9 Some analysis of those resolutions has already been provided in chapter 6. Of importance to this chapter, both sets of resolutions contain various statements about the need, when implementing counter-terrorist measures, to comply with international human rights standards. A common phrasing of this idea is seen in General Assembly resolution 50/186 (1995):10
Mindful of the need to protect human rights of and guarantees for the individual in accordance with the relevant international human rights principles and instruments, particularly the right to life, [...]
Reaffirming that all measures to counter terrorism must be in strict conformity with international human rights standards, [...]
3. Calls upon States to take all necessary and effective measures in accordance with international standards of human rights to prevent, combat and eliminate all acts of terrorism wherever and by whomever committed; [...].
A slightly less robust expression of these ideas was seen in resolution 56/88 (2001) following the events of September 11, although still requiring measures to be taken consistently with human rights standards.11 That should not, however, be taken as a signal that the General Assembly was
8 2005 World Summit Outcome, GA Res 60/1, UN GAOR, 69th Sess, 8th Plen Mtg, UN Doc A/Res/60/1 (2005), para 85.
9 GA Res 48/122, UN GAOR, 48th Sess, 85th Plen Mtg, UN Doc A/Res/48/122 (1993).
10 See also GA Res 50/186, UN GAOR, 50th Sess, 99th Plen Mtg, UN Doc A/Res/50/186 (1995), preambular paras 13 and 14, and operative para 3; GA Res 52/133, UN GAOR, 52nd Sess, 70th Plen Mtg, UN Doc A/Res/52/133 (1997), preambular paras 12 and 13, and
operative para 4; GA Res 54/164, UN GAOR, 54th Sess, 83rd Plen Mtg, UN Doc A/Res/54/164 (1999), preambular paras 15 and 16, and operative para 4; GA Res 56/160, UN GAOR, 56th Sess, 88th Plen Mtg, UN Doc A/Res/56/160 (2001), preambular paras 22 and 23, and operative paras 5 and 6; and GA Res 58/174, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/Res/58/174 (2003), preambular paras 20 and 21, and operative para 7.
11 GA Res 56/88, UN GAOR, 56th Sess, 85th Plen Mtg, UN Doc A/Res/56/88 (2001), preambular para 9 and operative para 3. The preambular paragraph returned to the language of combating terrorism “in accordance with the principles of the Charter”, and operative
paragraph 4 talked of combating terrorism in accordance with international law “including international standards of human rights”. See also similar statements within GA Res 57/27, UN GAOR, 57th Sess, 52nd Plen Mtg, UN Doc A/Res/57/27 (2002), preambular para 8 and operative para 6; GA Res 58/81, UN GAOR, 58th Sess, 72nd PLen Mtg, UN Doc A/Res/58/81 (2003), preambular para 9 and operative para 6; GA Res 58/136, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/Res 58/136 (2003), preambular para 10 and operative para 5; and GA Res 59/46, UN GAOR, 59th Sess, 65th Plen Mtg, UN Doc A/Res/59/46 (2004), preambular para 10 and operative para 3.
minded to turn a blind eye to adverse impacts of counter-terrorism upon human rights. To the contrary, the issue became the subject of annual resolutions on that subject alone, entitled “Protection of Human Rights and Fundamental Freedoms While Countering Terrorism”.12 The first operative paragraphs of these resolutions affirm that:
States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law.
These directions on the part of the General Assembly are reasonably strong in the language they use. It must be recalled, however, that resolutions of the General Assembly do not hold the same weight as international conventions, or binding resolutions of the Security Council. Indeed, Article
10 of the Charter of the United Nations specifically provides that resolutions and declarations of the General Assembly are recommendatory only.13 This principle is equally applicable to resolutions of the Commission on Human Rights, as a subsidiary organ of the Economic and Social Council (which is only empowered to make recommendations),14 and those of the new Human Rights Council (a subsidiary organ of the General Assembly).15 Thus, the resolutions just discussed, and those of the Commission to be discussed, represent guiding principles and non-binding recommendations (what might be termed ‘soft law’), rather than binding resolutions, treaty provisions or norms of customary international law
12 GA Res 57/219, UN GAOR, 57th Sess, 77th Plen Mtg, UN Doc A/Res/57/219 (2002); GA Res 58/187, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/Res/8/187 (2003); and GA Res 59/191, UN GAOR, 59th Sess, 74th Plen Mtg, UN Doc A/Res/59/191 (2004). See also: GA Res 59/46, UN GAOR, 59th Sess, 65th Plen Mtg, UN Doc A/Res/59/46 (2004), preambular para 10 and operative para 3; GA Res 59/153, UN GAOR, 59th Sess, 74th Plen Mtg, UN Doc A/Res/59/153 (2004), preambular paras 11 and 12; GA Res 59/195, UN GAOR, 59th Sess, 74th Plen Mtg, UN Doc A/Res/59/195 (2004), preambular para 5, 23 and 24 and operative paras 8 and 10; and GA Res 60/158, UN GAOR, 60th Sess, 64th Plen Mtg, UN Doc A/Res/60/158 (2005), preambular paras 2, 3 and 7, and operative para 1.
13 Article 10 provides that the: “General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to
both on any such questions or matters”.
14 Charter of the United Nations, Article 62(2).
15 The Human Rights Council was established by the United Nations General Assembly in
2006 under its resolution 60/251 as a subsidiary body of the General Assembly: GA Res 60/251, UN GAOR, 60th sess, 72nd plen mtg, UN Doc A/Res/60/251 (2006). The resolution establishing the Human Rights Council was adopted by a vote of 170 in favour to four against (voting against the resolution were Israel, the Marshall Islands, Palau and the United States), with three abstentions (abstaining were Belarus, Iran and Venezuela).
(‘hard law’). Notwithstanding this, having regard to their repeated and consistent approach, these resolutions are very influential and, importantly, representative of international comity. It is also relevant to recall that resolutions may constitute evidence of customary international law, if supported by State conduct that is consistent with the content of the resolutions and with the accompanying opinion juris required to prove the existence of customary law.16
Resolutions of the former Commission on Human Rights
Not surprisingly, the United Nations Commission on Human Rights has paid considerable attention to the issue of the adverse consequences that counter-terrorism can have upon the maintenance and promotion of human rights. It did so even before the flurry of anti-terrorist legislation that followed Security Council resolution 1373 (2001). In the pre-9/11 resolutions of the Commission, and its Sub-Commission on the Protection and Promotion of Human Rights, it was affirmed that all States have an obligation to promote and protect human rights and fundamental freedoms, and that all measures to counter terrorism must be in strict conformity with international law, “including international human rights standards”.17 Post- September 11, resolutions of the Commission became more strongly worded. Two resolutions on the subject were adopted in 2004 alone. First, the issue was addressed within the Commission’s annual resolution on human rights and terrorism.18 In a resolution later that month, the Commission again reaffirmed that States must comply with international human rights obligations when countering terrorism.19 The Commission’s resolution 2005/80, pursuant to which it appointed a Special Rapporteur on
16 An example of the use of resolutions of the General Assembly to determine the content of customary rules can be seen in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits (1986) ICJ Rep, 76 ILR 349, where the International Court of Justice gave consideration to two resolutions of the Assembly as evidence of the content of the principle of non-intervention: those being the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States, UNGA Res 213 (XX) (1965) GAOR (20th Sess, 1408th Plen Mtg) UN Doc A/Res/2131; and the Declaration on Principles of International Law Concerning Friendly Relations and Co- Operation Among States, UNGA Res 2625 (XXV) (1970) GAOR (25th Sess, 1883rd Plen Mtg) UN Doc A/Res/2625.
17 CHR Res 2001/37, UN ESCOR, 57th Sess, 72nd Mtg, UN Doc E/CN.4/Res/2001/37
(2001), preambular paras 18 and 19 and operative paras 7 and 8. Preambular para 19 was later reflected in UN Sub-Commission on Human Rights Res 2001/18, UN ESCOR, 53rd Sess, 26th Mtg, UN Doc E/CN.4/Sub.2/2001/18 (2001), preambular para 13.
18 CHR Res 2004/44, UN ESCOR, 60th Sess, 55th Mtg, UN Doc E/CN.4/Res/2004/44 (2004), preambular para 24 and operative paras 10, 11 and 12.
the promotion and protection of human rights while countering terrorism, stated at paragraphs 1 and 6 that it:20
Reaffirms that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law;
Reaffirms that it is imperative that all States work to uphold and protect the dignity of individuals and their fundamental freedoms, as well as democratic practices and the rule of law, while countering terrorism [...].
The 2005 report of the Sub-Commission’s Special Rapporteur on the Promotion and Protection of Human Rights also addressed the matter.21 Although the original mandate of the Special Rapporteur was to consider the impact of terrorism on human rights,22 she commented in her 2004 report that a State’s over-reaction to terrorism can itself also impact upon human rights. The Sub-Commission Rapporteur’s mandate was therefore extended to develop a set of draft principles and guidelines concerning human rights and terrorism (which are to be discussed further in this part of the paper). Of note at this point, the first-stated principle under the heading “Duties of States Regarding Terrorist Acts and Human Rights” reads:23
All States have a duty to promote and protect human rights of all persons under their political or military control in accordance with all human rights and humanitarian law norms.
Also of relevance, a digest of jurisprudence on the protection of human rights while countering terrorism was prepared by the UN Office of the High Commissioner for Human Rights in September 2003.24 Its declared
19 CHR Res 2004/87, UN ESCOR, 60th Sess, 58th Mtg, UN Doc E/CN.4/Res/2004/87 (2004), paras 1 and 2.
20 CHR Res 2005/80, UN ESCOR, 61st Sess, 60th Mtg, UN Doc E/CN.4/Res/2005/80
(2005).
21 Sub-Commission Special Rapporteur on terrorism and human rights, Kalliopi Koufa, Specific Human Rights Issues: New Priorities, in Particular Terrorism and Counter- Terrorism. A Preliminary Framework Draft of Principles and Guidelines Concerning Human Rights and Terrorism, UN Doc E/CN.4/Sub.2/2005/39 (22 June 2005).
22 This mandate was consequent to the request of the General Assembly for the Commission
to do so (see GA Res 49/185, UN GAOR, 49th Sess, 94th Plen Mtg, UN Doc A/Res/49/185 (1994), para 6) and through the Commission’s own decision to consider the issue: see CHR Res 1994/46, UN ESCOR, 50th Sess, 56th Mtg, UN Doc E/CN.4/Res/1994/46 (1994).
23 Sub-Commission Special Rapporteur (n 21) para 25.
24 Digest of Jurisprudence of the UN and Regional Organizations on the Protection of Human Rights While Countering Terrorism (United Nations Office of the High Commissioner for Human Rights, September 2003). The Office of the High Commissioner is currently working on an updated edition of the Digest.
aim was to assist policy makers and other concerned parties to develop counter-terrorist strategies that respect human rights, introducing itself by stating:25
No one doubts that States have legitimate and urgent reasons to take all due measures to eliminate terrorism. Acts and strategies of terrorism aim at the destruction of human rights, democracy, and the rule of law. They destabilize [sic] governments and undermine civil society. Governments therefore have not only the right, but also the duty, to protect their nationals and others against terrorist attacks and to bring the perpetrators of such acts to justice. The manner in which counter-terrorism efforts are conducted, however, can have a far-reaching effect on overall respect for human rights.
The Digest considers decisions of UN treaty-monitoring bodies, such as the Human Rights Committee, and those of other regional bodies, including the European Court of Human Rights and the Inter-American Court of Human Rights. It looks at general considerations, states of emergency and specific rights. On the subject of general considerations, two types of jurisprudence are relevant here. The first is that which emphasises the duty of States to protect those within their territories from terrorism.26 The second is the identification of jurisprudence observing that the lawfulness of counter- terrorism measures depends upon their conformity with international human rights law.27
Resolutions of the UN Security Council
In general terms, Security Council resolutions concerning terrorism have confined their attention upon the threat of terrorism to international peace and security, reflecting the role of the Council as the organ of the United Nations charged with the maintenance of peace and security.28 That role is reflected in the language and scope of Security Council resolutions on terrorism which, compared with General Assembly and Commission on Human Rights resolutions on the subject, are much narrower in focus. In
25 Ibid 3.
26 Ibid 11-12. See, for example, Delgado Paez v Colombia, Human Rights Committee communication 195/1985, views adopted 12 July 1990, para 5.5.
27 Ibid 13-15.
28 Under Article 24 of the Charter of the United Nations, the Security Council is charged
with the maintenance of international peace and security, paragraph 1 providing that: “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf”.
general terms, the Security Council’s resolutions concern themselves with the adverse impacts of terrorism upon the security of States and the maintenance of peaceful relations,29 while the General Assembly Commission took a much broader approach to the subject given their plenary roles and mandates.
Apart from two notable exceptions, the main inference that can be taken from Security Council resolutions about counter-terrorism measures and their need to comply with human rights arises from general statements that counter-terrorism is an aim that should be achieved in accordance with the Charter of the United Nations and international law.30 This means that such measures must themselves be compliant with the principles of the Charter (which seeks to promote and maintain human rights) and human rights law as a specialised subset of international law. Notable is the fact that members of the United Nations have undertaken, under Article 55(c) and through the preamble to the UN Charter, to observe human rights and fundamental freedoms for all without distinction as to race, language or religion.
The first more express exception mentioned is the 2003 Declaration of the Security Council meeting with Ministers of Foreign Affairs, adopted under resolution 1456.31 The Resolution directs its attention to the question of compliance with human rights. Paragraph 6 of the Declaration provides that:
States must ensure that any measure [sic] taken to combat terrorism comply 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; [...].
29 Discussed in chapter 6, infra.
30 See, for example, SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001), preambular para 5; SC Res 1438, UN SCOR, 4624th Mtg, UN Doc S/Res/1438 (2002), preambular para 2; SC Res 1440, UN SCOR, 4632nd Mtg, UN Doc S/Res/1440 (2002), preambular para 2; SC Res 1450, UN SCOR, 4667th Mtg, UN Doc S/Res/1450 (2002), preambular para 4; SC Res 1455, UN SCOR, 4686th Mtg, UN Doc S/Res/1455 (2003), preambular para 3; SC Res 1456, UN SCOR, 4668th Mtg, UN Doc S/Res/1456 (2004),
preambular para 8; SC Res 1535, UN SCOR, 4936th Mtg, UN Doc S/Res/1535 (2004), preambular para 4; SC Res 1540, UN SCOR, 4956th Mtg, UN Doc S/Res/1540 (2004), preambular para 14; SC Res 1566, UN SCOR, 5053rd Mtg, UN Doc S/Res/1566 (2004), preambular paras 3 and 6; SC Res 1611, UN SCOR, 5223rd Mtg, UN Doc S/Res/1611 (2005), preambular para 2; SC Res 1618, UN SCOR, 5246th Mtg, UN Doc S/Res/1618 (2005), preambular para 4; and SC Res 1624, UN SCOR, 5261st Mtg, UN Doc A/Res/1624 (2005), preambular para 2 and operative paras 1 and 4.
31 Ibid.
While persuasive in its wording in this regard, the status of the Declaration should be noted. Security Council resolutions, when couched in mandatory language, are binding upon members of the United Nations.32 In the context of the Declaration adopted under resolution 1456 (2003), the text of the Declaration (including the mentioned paragraph 6) is preceded by the sentence: “The Security Council therefore calls for the following steps to be taken” [emphasis added]. Such an expression, although influential, is exhortatory and therefore not a binding “decision” within the contemplation of Article 25 of the Charter.33
The second resolution to be considered is, however, both direct and binding in its terms. Security Council resolution 1624 of 2005 provides, after setting out the obligations of States to counter various aspects of terrorism, that:34
...States must ensure that any measures taken to implement paragraphs 1, 2 and 3 of this resolution comply with all of their obligations under international law, in particular international human rights law, refugee law, and humanitarian law.
The latter provision is not preceded by exhortatory language, but instead constitutes a clearly binding decision of the Security Council.
Counter-Terrorism Committee
In its comprehensive review report of 16 December 2005, which was endorsed by the Security Council, the Counter-Terrorism Committee reiterated that States must ensure that any measure taken to combat terrorism should comply with all their obligations under international law and that they should adopt such measures in accordance with international law, in particular human rights law, refugee law and humanitarian law.35 It also stressed that the Counter-Terrorism Committee Executive Directorate should take this into account in the course of its activities.
32 Member States of the United Nations have agreed to be bound by “decisions” of the Security Council: see Charter of the United Nations, Article 25.
33 In the Namibia Advisory Opinion, the International Court of Justice took the position that
a resolution couched in non-mandatory language should not be taken as imposing a legal duty upon a member State: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1990) (Advisory Opinion) [1971] ICJ Rep 53.
34 SC Res 1624 (n 30) para 4.
35 Counter-Terrorism Committee, Report of the Counter-Terrorism Committee to the Security Council for its consideration as part of its comprehensive review of the Counter- Terrorism Committee Executive Directorate, UN Doc S/2005/800 (2005).
International Guidelines
Numerous international guidelines and reports on the relationship between human rights and counter-terrorism have been issued since the advent of September 11 and the proliferation of counter-terrorist legislative action that followed. Unlike Security Council decisions, such guidelines and reports are clearly not binding. Nor do they hold the same status as General Assembly or Commission on Human Rights resolutions, which have been adopted by a consensus of State representatives. Notwithstanding this, the consistent approach of these guidelines is telling.
As part of its series of occasional papers, the International Commission of Jurists (ICJ) commissioned a paper on terrorism and human rights in 2002.36 The paper concluded with a list of minimum criteria that States must observe in the administration of justice when countering terrorism, including: the observance of the primacy of the rule of law and of international human rights obligations; and maintaining and guaranteeing at all times rights and freedoms that are non-derogable.37 At the its biennial conference in August 2004, the ICJ was also instrumental in the adoption of the Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism.38 The Berlin Declaration recognises the need to combat terrorism and the duty of States to protect those within their jurisdiction.39 It also expresses that contemporary human rights law allows States a reasonably wide margin of flexibility to combat terrorism without contravening the essence of rights.40
In July 2002, the Committee of Ministers to the Council of Europe also adopted guidelines on human rights and the fight against terrorism.41 In the preface to its guidelines, Secretary General Walter Schwimmer warned that although the suppression of terrorism is an important objective, States must not use indiscriminate measures to achieve that objective.42 For a State to react in such a way, he said, would be to fall into the trap set by terrorists for democracy and the rule of law. He urged that situations of crisis, such
36 International Commission of Jurists, Terrorism and Human Rights, (International Commission of Jurists, 2002).
37 Ibid 248-251.
31 International Commission of Jurists, Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, adopted 28 August 2004, available online:
<http://www.icj.org/IMG/pdf/Berlin_Declaration.pdf> (last accessed 27 July 2005).
39 Ibid preambular para 2 and operative para 1.
40 Ibid preambular para 5.
41 Council of Europe, Guidelines on Human Rights and the Fight Against Terrorism
(Council of Europe Publishing, 2002).
42 Ibid 5.
as those brought about by terrorism, called for even greater vigilance in ensuring respect for human rights. Drawing from the jurisprudence of the European Court of Human Rights,43 and the UN Human Rights Committee, the Council’s guidelines set out general rules on the interaction between counter-terrorism and human rights, as well as addressing specific rights and freedoms, with commentary on each stated guideline. Five of the more specific guidelines warrant mention. The first reflects the idea that counter- terrorism is an important objective in a free and democratic society. Gudieline I accordingly talks of a positive obligation upon States to protect individuals within their territory from the scourges of terrorism, pointing to decisions of the European Court in which it recognised this duty and the particular problems associated with the prevention and suppression of terrorism.44 In Klass v Germany, for example, the Court agreed with the European Commission that: “some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention”.45
The second and third Guidelines of the Council are directly relevant to the question of compliance with human rights. Guideline II prohibits the arbitrary limitation of rights,46 and Guideline III requires limiting measures to be lawful, precise, necessary and proportional:47
Article II
All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as
43 Which has compulsory jurisdiction over States parties to the (European) Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), Article 46.
44 See, for example, Ireland v the United Kingdom, ECHR, 18 January 1978, para 11; Askoy v Turkey, ECHR, 18 December 1996, paras 70 and 84; Zana v Turkey, ECHR, 25 November
1997, paras 59 and 60; Incal v Turkey, ECHR, 9 June 1998, para 58; United Communist Party of Turkey and Others v Turkey, ECHR, 20 November 1998, para 59; and Brogan and Others v the United Kingdom, ECHR, 29 November 1999, para 48.
45 Klass and Others v Germany, ECHR, 6 September 1978, para 59
46 Compare Article II with paras 3 and 4(i) and (j) of Guidelines issued by the UN High Commissioner for Human Rights: Report of the United Nations High Commissioner for
Human Rights and Follow-up to the World Conference on Human Rights, Human Rights: A Uniting Framework, ESCOR (58th Sess) UN Doc E/CN.4/2002/18 (2002), Annex entitled Proposals for “further guidance” for the submission of reports pursuant to paragraph 6 of Security Council resolution 1373 (2001). Compliance with international human rights standards, I General Guidance: Criteria for the Balancing of Human Rights Protection and the Combating of Terrorism.
47 Compare Article III with para 4(a), (b), (e), (f), and (g) of the Commissioner’s Guidelines (ibid).
well as any discriminatory or racist treatment, and must be subject to appropriate supervision.
Article III
Further guidance on possible derogations is found in Guideline XV, concerning derogations during situations of war or states of emergency threatening the life of a nation. Finally, Guideline XVI underlines that States may never act in breach of peremptory norms of international law.
A report of the Inter-American Commission on Human Rights (IACHR) on terrorism and human rights was issued in late 2002, shortly after the adoption of the Inter-American Convention Against Terrorism.48 Article 15 of the latter Convention specifically requires all States parties to comply with human rights standards:49
The measures carried out by the states parties under this Convention shall take place with full respect for the rule of law, human rights, and fundamental freedoms.
The IACHR report undertakes a right-based approach, focussing upon the scope and potential limitation of particular rights.50 It also emphasises the general need for any limitation to comply with the doctrines of necessity, proportionality and non-discrimination.51 As one of its annexes, the report recalls resolution 1906 (2002) of the Organization of American States General Assembly, the first operative paragraphs resolving:52
48 Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, Doc OEA/Ser.L/V/II.116 (22 October 2002), online: <http://www.cidh.org/Terrorism/Eng/ toc.htm> (last accessed 6 September 2005).
49 Inter-American Convention against Terrorism, opened for signature 3 June 2002, OAS Treaty A-66 (2003) 42 ILM 19, Article 15.
50 The report considers the right to life (part III.A), the right to personal liberty and security (part III.B), the right to humane treatment (part III.C), rights to due process and a fair trial (part III.D), the freedom of expression (part III.E), non-discrimination (part III.F), refugee
and asylum rights (part III.H), and other civil rights (part III.G): Inter-American Commission on Human Rights report (n 52).
51 Ibid paras 51 and 55.
52 OAS General Assembly Resolution 1906, Human Rights and Terrorism, 4th Plen Sess, 4 June 2002, OAS Doc AG/Res 1906 (XXXII-O/02).
The latest report of the Sub-Commission Special Rapporteur while still under the auspices of the UN Commission on Human Rights, setting out the 2005 Preliminary Framework Draft of Principles and Guidelines Concerning Human Rights and Terrorism, adopts both a rights-specific and more general approach.53 On the question of permissible limitations, the document adopts a more absolute approach than do the other guidelines, paragraph 34 providing that:
Any exceptions or derogations in human rights law in the context of counter- terrorism measures must be in strict conformity with the rules set out in the applicable international or regional instruments. A State may not institute exceptions or derogations unless that State has been subjected to terrorist acts that would justify such measures. States shall not invoke derogation clauses to justify taking hostages or to impose collective punishments.
(a) Great care should be taken to ensure that exceptions and derogations that might have been justified because of an act of terrorism meet strict time limits and do not become perpetual features of national law or action.
(b) Great care should be taken to ensure that measures taken are necessary to apprehend actual members of terrorist groups or perpetrators of terrorist acts in a way that does not unduly encroach on the lives and liberties of ordinary persons or on procedural rights of persons charged with non- terrorist crimes.
(c) Exceptions and derogations undertaken following a terrorist incident should be carefully reviewed and monitored. Such measures should be subject to effective legal challenge in the State imposing exceptions or derogations.
Appointed as an independent expert, Dr Robert Goldman of the American University completed a very useful report to the Commission on Human Rights in February 2005.54 This report also adopts a rights-based approach, and again emphasises the need to uphold the rule of law while confronting
53 Report of the Sub-Commission Special Rapporteur on Counter-Terrorism (n 21). 2006 saw the Special Rapporteur issue a further version of the Preliminary Framework Draft of Principles and Guidelines, this time under the auspices of the Human Rights Council, UN Doc A/HRC/Sub.1/58/30 (2006).
54 Independent Expert on the protection of human rights and fundamental freedoms while countering terrorism, Robert Goldman, Protection of Human Rights and Fundamental
Freedoms While Countering Terrorism ESCOR (61st Sess) UN Doc E/CN.4/2005/103. Dr Goldman was appointed under UNCHR Res 2004/87 (2004) ESCOR (60th Sess) UN Doc E/CN.4/Res/2004/87.
terrorism, Dr Goldman stating that: “Properly viewed, the struggle against terrorism and the protection of human rights are not antithetical, but complementary responsibilities of States”.55 Consequent to the report, the Commission established a Special Rapporteur to monitor counter-terrorism measures worldwide that might threaten human rights.56 In September 2005, the Special Rapporteur presented his first preliminary report to the General Assembly, setting out the conceptual framework for his work.57 His first substantive report to the Commission on Human Rights included consideration of the issue of the human rights implications of the definition of terrorism, a matter considered in more detail in chapter 16.58
These various and reasonably general statements are useful and support the notion that “compliance” with human rights means that any limitations upon rights when countering terrorism are to be effected by necessary and proportional means. The difficulty, from a pragmatic perspective, is that they do not express how such limitations are to be formulated (hence the development of the Guide as part of the ICT Project). A document which identifies some specific requirements in achieving a proper balance between counter-terrorist objectives and human rights claims is a seemingly little-known one. In her report and follow-up to the 2001 World Conference on Human Rights, the then United Nations High Commissioner for Human Rights, Mary Robinson, prepared guidelines for the use of the Security Council Counter-Terrorism Committee (the Commissioner’s Guidelines).59 The Counter-Terrorism Committee, established under the Council’s Resolution 1373 of 2001, was charged with receiving reports from UN member States on their compliance with the counter-terrorist obligations specified within that Resolution60 The Commissioner sought to have the Committee issue the Guidelines to States, so that they might be directed in specific and useful terms on how to counter-terrorism in a manner consistent with human rights. The Committee ultimately declined to issue the Commissioner’s Guidelines, something anticipated from the remarks of
55 Ibid para 7.
56 UNCHR Res 2005/80 (n 20). Professor Martin Scheinin of Abo Akademi University in Finland was appointed to the role of Special Rapporteur by the Chairman of the Commission on Human Rights, pursuant to UNCHR Res 2005/80.
57 Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Promotion and Protection of Human Rights, GAOR (60th Sess) UN Doc A/60/370 (2005).
58 Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Promotion and Protection of Human
Rights, ESCOR (62nd Sess) UN Doc E/CN.4/2006/98 (2005).
59 High Commissioner for Human Rights (n 46).
60 UNSC Res 1373 (n 30) para 6.
the then Chair of the Counter-Terrorism Committee in his briefing of the Security Council in January 2002:61
The Counter-Terrorism Committee is mandated to monitor the implementation of resolution 1373 (2001). Monitoring performance against other international conventions, including human rights law, is outside the scope of the Counter- Terrorism Committee's mandate. But we will remain aware of the interaction with human rights concerns, and we will keep ourselves briefed as appropriate. It is, of course, open to other organizations to study States’ reports and take up their content in other forums.
This does not, however, do away with the utility of the content of the Guidelines for present purposes. The Guidelines are consistent with the premises of other guidelines mentioned, and with the notions of the rule of law and the social contract. They emanate from the highest political office of the United Nations concerned with the issue of human rights. Their content is, in the author’s view, influential.
The Commissioner’s Guidelines begin by making statements that go to answering an important ideological question: are the objectives of countering terrorism and maintaining human rights compatible? The Guidelines recognize the counter-terrorist obligations imposed upon States by the Security Council and reaffirms that such action must be in compliance with human rights principles contained in international law.62 They confirm the notion that human rights law allows for a balance to be truck between the unlimited enjoyment of rights and freedoms and legitimate concerns for national security through the limitation of some rights in specific and defined circumstances.63 Paragraphs 3 and 4 of the Guidelines then set out some instructions on how to formulate counter- terrorist measures that might seek to limit human rights:
(a) Should use precise criteria;
(b) May not confer an unfettered discretion on those charged with their execution.
(a) Be prescribed by law;
(b) Be necessary for public safety and public order, i.e. the protection of public health or morals and for the protection of the rights and freedoms of others, and serve a legitimate purpose;
61 Sir Jeremy Greenstock, Threats to International Peace and Security Posed by Terrorism, 18 January 2002, UN Doc S/PV.4453, 5.
62 High Commissioner for Human Rights (n 46) para 1.
63 Ibid para 2.
(c) Not impair the essence of the right;
(d) Be interpreted strictly in favour of the rights at issue;
(e) Be necessary in a democratic society;
(f) Conform to the principle of proportionality;
(g) Be appropriate to achieve their protective function, and be the least intrusive instrument amongst those which might achieve that protective function;
(h) Be compatible with the object and purposes of human rights treaties;
(i) Respect the principle of non-discrimination;
(j) Not be arbitrarily applied.
Having regard to their substantive similarities with the other guidelines discussed, and the practical benefits of concrete factors against which counter-terrorist legislation and policies may be measured, the Commissioner’s Guidelines form a very useful tool for decision-makers. Although outside the scope of guidelines on the specific subject of counter- terrorism and human rights, attention is also paid to two generally- applicable and very useful documents on the subject of human rights limitations: the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights; and General Comment 29 of the Human Rights Committee.64 The latter document is particularly instructive since none of the States parties to the International Covenant on Civil and Political Rights have lodged any objection to General Comment 29 under art 40(5) of the Covenant. One might argue that the document has thereby gained the status of representing subsequent practice in the application of the Covenant which establishes the agreement of the parties regarding its interpretation.65
PART ONE OF THE GUIDE
Against the background of the latter obligations, directions and soft law guidance on the need for compliance with human rights when countering
64 United Nations Economic and Social Council Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4 (1985). Human Rights Committee, States of Emergency (Article 4), CCPR General Comment 29 of 2001, reprinted UN Doc HRI/GEN/1/Rev.6 at 186 (2003).
65 See Vienna Convention on the Law of Treaties (n 7) Article 31(3).
terrorism, Part One of the Guide considers the general question of compliance. Part One of the Guide offers the following advice:
Part One:
Counter-Terrorist Measures Must Comply with Human Rights Standards
Measures implemented to counter terrorism must comply with applicable international human rights treaties and with relevant customary law norms of international human rights law.
(a) The counter-terrorist measure impacts upon a right that is a peremptory norm of customary international law. If so, the counter-terrorist measure cannot impose any limitations upon the right or freedom.
(b) The counter-terrorist measure impacts upon a right that is not derogable under an applicable human rights treaty. This will normally mean that the counter-terrorist measure cannot impose any limitations upon the right, although this depends upon the particular expression of the right. Where the expression permits a limitation upon the right, such limitation must be within those terms and to the extent necessary and proportionate.
(c) The counter-terrorist measure impacts upon a right that is only derogable during a state of emergency threatening the life of the nation. In that case, the State must determine whether such an emergency exists, within the meaning of the applicable human rights treaty. If so, the State must:
- (i) lodge a proclamation of derogation (in accordance with the requirements of the particular treaty);
- (ii) continually review its circumstances to ensure that the derogation lasts only as long as the state of emergency exists; and
- (iii) ensure that the derogation is necessary and proportionate.
(d) The counter-terrorist measure impacts upon a right that is neither peremptory nor derogable only in states of emergency. If so, the State must ensure that:
- (i) the limitation is within the permissible range of limits provided within the treaty or customary definition of the right; and
- (ii) the limitation is necessary and proportionate.
(a) Counter-terrorist measures seeking to impose limitations upon rights and freedoms must be prescribed by law, requiring such prescriptions to be adequately accessible and formulated with sufficient precision so that citizens may regulate their conduct.
(b) Prescriptions must respect the principle of non-discrimination and equality before the law.
(c) Prescriptions may not confer an unfettered discretion, they must not be arbitrarily applied, and they must be implemented by means that establish adequate checks and balances against the potential misuse or arbitrary application of counter-terrorist powers.
(d) Prescriptions must be confined to countering terrorism.
Part One, Step 1:
Is the Right Capable of Limitation?
The discussion to this point leads to an unambiguous conclusion that States must comply with their international human rights obligations when countering terrorism. The United Nations has made it clear, through resolutions of three of its principal bodies, that counter-terrorism is not a motive that justifies overriding those obligations. This position can lead to an adverse reaction on the part of counter-terrorist practitioners, claiming that counter-terrorism can not be effectively achieved without the limitation of human rights, at which point it is important to consider what ‘compliance’ with human rights means. It does not mean that all human rights cannot be limited, since human rights law does contain a level of flexibility which is aimed at accomodating challenges such as those posed by counter-terrorism.
The first step in the Guide calls for identification of the nature of the right upon which a proposed, or actual, counter-terrorist provision or measure impacts. Under the international human rights framework, rights are universal and indivisible. Although there is no heirarchy of rights and freedoms, human rights norms and treaty provisions fall within one of the following four categories:
Peremptory Rights at Customary International Law
In determining what human rights compliance means, the first important point to be made is that there is a distinction to be made between rights that are capable of limitation and those that are not. The isolation of particular rights into the category of peremptory norms (those in respect of which no limitation is permitted) was an issue that the ICT Project did not delve into too deeply, since this can be a controversial issue which went beyond the central aim of the Project.66 The Project recognised, however, that certain rights can hold this absolute status. Least controversial is the status of the prohibition against torture (the commission of which is also an international crime)67 as falling within this category.68 The International Law Commission has identified this, together with the prohibition against slavery, as a norm of jus cogens.69 The Committee on the Elimination of
66 See, however, efforts to identify fundamental rights applicable in all circumstances: Richard Lillich, ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985) 79 American Journal of International Law 1072; and the Siracusa Principles (n 68). See also the identification by the Human Rights Committee of rights within the International Covenant on Civil and Political Rights that reflect norms of general (customary) international law: General Comment 29 (n 64) para 13.
67 See, generally, R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) [1999] UKHL 17; [1999] 2 WLR 827.
68 See, amongst others: Matthew Lippman, ‘The Protection of Universal Human Rights: The Problem of Torture’ (1979) 1(4) Universal Human Rights 25; Bruce Barenblat, ‘Torture as a Violation of the Law of Nations: An Analysis of 28 U.S.C. 1350 Filartiga v. Pena-Irala’
(1981) 16 Texas International Law Journal 117; Eyal Benvenisti, ‘The Role of National Courts in Preventing Torture of Suspected Terrorists’ (1997) 8 European Journal of International Law 596; Richard Clayton and Hugh Tomlinson, The Law of Human Rights (Oxford University Press, 2000) 381-382; and Erika de Wet, ‘The Prohibition of torture as an International Norm of Jus Cogens and its Implications for National and Customary Law’ (2004) 15(1) European Journal of International Law 97.
69 International Law Commission, “Commentary on the Vienna Convention on the Law of Treaties” (1966) 2 Yearbook of the International Law Commission 248.
Racial Discrimination has said that the principle of non-discrimination on the grounds of race has also become a norm of jus cogens.70
Non-derogable Rights under Human Rights Treaties
The distinction between peremptory rights at customary international law and non-derogable rights under applicable human rights treaties is a fine, but important, one.71 In the case of the International Covenant on Civil and Political Rights (ICCPR), Article 4(2) sets out a list of rights that may not be derogated from even when a public emergency is declared by a State party to the Covenant. These non-derogable rights are identified in the ICCPR as the right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment, the prohibition against slavery and servitude, freedom from imprisonment for failure to fulfil a contract, freedom from retrospective penalties, the right to be recognised as a person before the law, and freedom of thought, conscience and religion.72 Article 4(1) requires that any derogating measures must not be inconsistent with a State’s other international law obligations, and must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
As just mentioned, Article 4(2) sets out a list of rights that may not be derogated from, even during a state of emergency. This list is not, however, exhaustive. The Human Rights Committee has made the point that provisions of the ICCPR relating to procedural safeguards can never be made subject to measures that would circumvent the protection of these non-derogable rights.73
The Committee has also pointed out that, because Article 4(1) of the ICCPR specifies that any derogating measures must not be inconsistent with obligations under international law, the full complement of ‘non- derogable rights’ therefore includes rights applicable as part of obligations
70 Committee on the Elimination of Racial Discrimination, “Statement on Racial Discrimination and Measures to Combat Terrorism”, in Report of the Committee on the Elimination of Racial Discrimination, UN Doc A/57/18, 107.
71 See General Comment 29 (n 68) para 11.
72 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Articles 6, 7, 8(1) and (2), 11, 15,
16, and 18 respectively.
73 General Comment 29 (n 64) para 15.
under international human rights law, international humanitarian law, and international criminal law.74 Expanding upon this position, the Committee identified certain rights under customary international law (applicable to all States) as being non-derogable: the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person; the prohibitions against taking of hostages, abductions or unacknowledged detention; the international protection of the rights of persons belonging to minorities; the deportation or forcible transfer of population without grounds permitted under international; and the prohibition against propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence.75
The status of a substantive right as non-derogable does not mean that limitations or restrictions upon such a right could not be justified. In its General Comment 29, the Human Rights Committee makes this point and gives the example of the freedom to manifest one’s religion or beliefs, expressed in Article 18 of the ICCPR.76 Article 18 is listed within Article 4(2) and cannot therefore be derogated from under the Article 4 procedure. This listing does not, however, remove the permissible limitation upon the right expressed within paragraph (3) of Article 18 (such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others). Thus, whereas a peremptory right may not be the subject of any limitation at all, a non- derogable treaty right may be capable of limitation depending on the particular expression of the right. Such a limitation must, however, be proportional to the exigencies of the situation.77
Rights Derogable only in States of Emergency
The third category of rights under international human rights treaties are those that are only derogable in times of emergency threatening the life of
74 Ibid, paras 9 and 10.
75 Ibid, para 13.
76 General Comment 29 (n 64) para 7. See also para 11.
77 See: the international guidelines discussed earlier, and General Comment 29 (n 64) paras 4 and 5.
the nation (Guide, 1(c)).78 By way of illustration, Article 4 of the International Covenant on Civil and Political Rights provides:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
Assuming that such a state of emergency exists, and that the right in question is one that can be derogated from, four requirements must be noted:
The ability to derogate under Article 4(1) of the ICCPR is triggered only “in a time of public emergency which threatens the life of the nation”. The Human Rights Committee has characterised such an emergency as being of an exceptional nature.79 Not every disturbance or catastrophe qualifies as such. The Committee has commented that, even during an armed conflict, measures derogating from the ICCPR are allowed only if and to the extent that the situation constitutes a threat to the life of the nation.80 Whether or not terrorist acts or threats establish such a state of emergency must therefore be assessed on a case by case basis.
Interpreting the comparable derogation provision within the European Convention on Human Rights and Fundamental Freedoms, the European Court of Human Rights has spoken of four criteria to establish that any given situation amounts to “a time of public emergency which threatens the life of the nation”.81 First, it should be a crisis or emergency that is actual or imminent. Secondly, it must be exceptional, such that ‘normal’ measures are inadequate. Next, the emergency must threaten the continuance of the organized life of the community. Finally, it must affect the population of
78 See: the International Covenant on Civil and Political Rights, Article 4; the [European] Convention for the Protection of Human Rights and Fundamental Freedoms, Article 15; and the American Convention on Human Rights, 1144 UNTS 123 (entered into force 18 July 1978) Article 27(1).
79 General Comment 29 (n 64) para 2.
80 Ibid, para 3.
81 See: Lawless v Ireland (No 3) (1961) ECHR Series A, para 28; and The Greek Case
(1969) 12 Yearbook of the European Court of Human Rights 1, para 153.
the State taking measures. On this fourth point, early decisions of the Court spoke of an emergency needing to affect the whole population. The Court appears to have subsequently accepted that an emergency threatening the life of the nation might only materially affect one part of the nation at the time of the emergency.82
Outside the immediate aftermath of a terrorist attack, or in the situation where clear intelligence exists of an imminent threat of a terrorist act, it is debatable whether a continual state of emergency caused by the threat of terrorism can exist for the purpose of these derogating provisions.83 Ultimately, however, this will normally involve a factual question calling for consideration of the particular circumstances at hand. Given that New Zealand has not lodged a notice of derogation under the ICCPR, and that there are no signs that such steps would be taken by it, this issue is not considered further within this text.
82 Brannigan and McBride v United Kingdom (1993) ECHR Series A, although contrast this with the dissenting opinion of Judge Walsh, para 2.
83 See, generally, the Siracusa Principles (n 64) paras 39-41. In the context of states of
emergencies said to be caused by the threat of terrorism (under the framework of the International Covenant on Civil and Political Rights, see Human Rights Committee, Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, UN Doc CCPR/C/79/Add.18 (1993), para 25, where the Committee recommended: “Given the significant decline in terrorist violence in the United Kingdom since the cease-fire came into effect in Northern Ireland and the peace process was initiated, the Committee urges the Government to keep under the closest review whether a situation of "public emergency" within the terms of Article 4, paragraph 1, of the Covenant still exists and whether it would be appropriate for the United Kingdom to withdraw the notice of derogation which it issued on 17 May 1976, in accordance with Article 4 of the Covenant”. See also: Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel, UN Doc CCPR/C/79/Add.93 (1998), para 11, where the Committee stated: “The Committee expresses its deep concern at the continued state of emergency prevailing in Israel, which has been in effect since independence. It recommends that the Government review the necessity for the continued renewal of the state of emergency with a view to limiting as far as possible its scope and territorial applicability and the associated derogation of rights. In this regard, the Committee draws attention to Article 4 of the Covenant, which permits no derogation from Articles 6, 7, 8 (paras. 1 and 2), 11, 15, 16 and 18, and requires that permitted derogations be limited to the extent strictly required by the exigencies of the situation”. See further: Alex Conte, ‘A Clash of Wills: Counter-Terrorism and Human Rights’ (2003) 20 New Zealand Universities Law Review 338, 350-354; Justice [a non-governmental law reform and human rights organisation], Response to the Joint Committee on Human Rights Inquiry into UK Derogations from Convention Rights, (Justice, 2002); and James Oraa, Human Rights in States of Emergency in International Law, (Clarendon Press, 1992).
Upon establishment that an emergency exists, a proclamation of derogation must be lodged in accordance with the requirements of the particular treaty.84 In the case of the ICCPR a State party must, before it can implement any derogating measure(s), officially proclaim the existence within its territory of a public emergency which threatens the life of the nation.85 Through the intermediary of the UN Secretary-General, a derogating State must also immediately inform other States parties to the ICCPR of the provisions from which it has derogated and of the reasons by which it has done so.86 The Human Rights Committee has emphasised that notification should include full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached concerning the relevant law.87 A further communication is required on the date on which the State terminates such derogation.88 In practice, very few States have declared a state of emergency in relation to acts of terrorism.
Linked to the first requirement that the situation within the derogating State must amount to a public emergency threatening the life of the nation, it will be important for the derogating State to continually review the situation faced by it to ensure that the derogation lasts only as long as the state of emergency exists. In the context of the ICCPR derogations provisions, the Human Rights Committee has repeatedly stated that measures under Article 4 must be of an exceptional and temporary nature, and may only continue only as long as the life of the nation concerned is threatened.89 . The restoration of a state of normalcy where full respect for the ICCPR can again be secured, the Human Rights Committee has said, must be the predominant objective of a State party derogating from the Covenant.90
84 As an example, see the International Covenant on Civil and Political Rights, Article 4(3). See, in that regard, General Comment 29 (n 64) paras 2 and 17. See also the Siracusa Principles (n 64) paras 42-47.
85 International Covenant on Civil and Political Rights, Article 4(1).
86 International Covenant on Civil and Political Rights, Article 4(3).
87 General Comment 29 (n 64) paras 5, 16 and 17.
88 International Covenant on Civil and Political Rights, Article 4(3).
89 General Comment 29 (n 64) para 2; and the Siracusa Principles (n 64) paras 48-50.
90 Ibid, paras 1 and 2.
Finally, the extent to which any right is derogated from must be limited “to the extent strictly required by the exigencies of the situation”. Any derogating measure must therefore be both necessary and proportionate (thus calling into consideration the second part of the Guide).91 The General Assembly, in its 2004 and 2005 resolutions on the protection of fundamental freedoms and human rights while countering terrorism, has also reaffirmed that any derogating measures are to be of an exceptional and temporary nature.92
Other Rights
The final category of rights are those that are neither peremptory, non- derogable, nor subject to limitation only in states of emergency (Guide, 1(d)). The Human Rights Committee has acknowledged, in this regard, that the limitation of rights is allowed even in ‘normal times’ under various provisions of the International Covenant on Civil and Political Rights.93 The permissible scope of the limitation of such rights will primarily depend upon their expression within the human rights treaty. This will give rise to two possible means of limitation: (1) by a definitional mechanism; and/or
(2) by a rights-specific limitations clause.94
Definitional limitations are ones that fall within the meaning of the words contained in the expression of the right itself. For example, the right to a fair and open hearing doesn’t provide a person with the right to a hearing which favours the person in all respects. Rather, it guarantees that a person be afforded a ‘fair’ and open hearing.95 A counter-terrorist measure
91 See the international guidelines discussed earlier. The Human Rights Committee has also emphasised that any derogation must be shown to be required by, and proportionate to, the exigencies of the situation: Human Rights Committee General Comment 29 (n 64) paras 4 and 5. When considering States parties’ reports the Committee has expressed concern over insufficient attention being paid to the principle of proportionality: see, for example, Concluding Observations of the Human Rights Committee: Israel (n 83) para 11. See also the Siracusa Principles (n 64) para 51.
92 GA Res 59/191 (n 12) para 2; and GA Res 60/158 (n 12) para 3. See also CHR Res
2005/80 (n 20) para 3.
93 General Comment 29 (n 64).
94 See further, inrra, chapter 9.
95 See, for example, the International Covenant on Civil and Political Rights, Article 14(1), which provides that: “All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law...” [emphasis added].
imposing limitations upon the disclosure of information, based upon the need to protect classified security information, might for example be ‘fair’ if the person’s counsel (with appropriate security clearance) is permitted access to the information.96
Rights-specific limitations are those that are authorised by a subsequent provision concerning the circumstances in which the right in question may be limited. In the context of the ICCPR, and again using the example of the right to a fair and open hearing, the first two sentences of Article 14(1) express the substance of the right (as just discussed). The next sentence then sets out the circumstances in which it is permissible to limit the right to an ‘open’ hearing, allowing the exclusion of the press for reasons of morals, public order, or national security.97
Part One, Step 2:
The Counter-Terrorist Measure Must be Established by Proper Means
The second step in the Guide directs its attention to the subject of the means by which the counter-terrorist provision, or the authority for the counter-terrorist measure, is established: by a prescription of law; respecting the principle of non-discrimination; not conferring an unfettered discretion; and limited to countering terrorism.
Prescription by Law
As to the first matter identified, it is no accident that the former Commissioner’s Guidelines used the term “prescribed by law”, this having been subject to examination by both domestic and international courts and tribunals with clear pronouncements on its meaning. The expression was
96 This is the means by which classified information is protected in judicial proceedings by the United Kingdom, through its Special Immigration Appeals Commission Act 1997. In a judgment considering a decision made using this mechanism, the House of Lords implicitly accepted the validity of such a limitation: see Secretary of State for the Home Department v Rehman [2001] UKHL 47 (see, in particular, the postscript of Lord Hoffman, para 62).
97 The third sentence of the International Covenant on Civil and Political Rights, Article 14(1), provides: “The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or
when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”.
considered, for example, by the European Court of Human Rights in the Sunday Times case of 1978 where the Court concluded that two requirements flowed from it: (1) that the law must be adequately accessible so that the citizen has an adequate indication of how the law limits his or her rights; and (2) that the law must be formulated with sufficient precision so that the citizen can regulate his or her conduct (Guide, 3.1).98 This test was later reaffirmed by the European Court in the case of Silver v UK.99 The same language is found in the Commissioner’s Guidelines, the guidelines of the Council of Europe and the report of the Inter-American Commission on Human Rights.100 It is likewise reflected in the Human Rights Committee’s General Comment 29 and the Siracusa Principles.101
In the particular context of the criminalisation of conduct in pursuit of counter-terrorism, the Special Rapporteur on Human Rights and Counter- Terrorism has commented upon the proper characterisation of ‘terrorism’ and definitional requirements of such proscription. This is a matter considered in more detail in chapter 16.
Non-Discrimination and Equality Before the Law
Although not expressly dealt with by the European Court of Human Rights in determining what is “prescribed by law” it should be remembered that any legal prescription, to comply with the rule of law, must also respect the principle of non-discrimination and equality before the law (Guide, 2(b)).102 Similarly, paragraph 4(i) of the Commissioner’s Guidelines demand that any limitation respect the principle of non-discrimination, as does General Comment 29 of the Human Rights Committee.103 It is relevant to note that Article 4 of the ICCPR provides that any derogation of rights in times of emergency may not involve discrimination solely on the ground of race,
98 Sunday Times v United Kingdom [1979] ECHR 1; (1978) 58 ILR 491, 524-527.
99 Silver v UK [1983] ECHR 5; [1983] 5 EHRR 347.
100 See: the Commissioner’s Guidelines (n 46) paras 3(a) and 4(a); the Council of Europe guidelines (n 41) Guideline III; and the Inter-American Commission on Human Rights report (n 58) para 53.
101 General Comment 29 (n 64) para 16; and the Siracusa Principles (n 64) paras 15 and 17.
102 Consider Albert Venn Dicey’s notion of the rule of law, requiring: (1) the regulation of government action, so that the government can only act as authorized by the law, having the consequence that one can only be punished or interfered with pursuant to the law; (2) the
equality of all persons before the law (which is the context in which the rule of law is referred to in this article); and (3) the requirement of procedural and formal justice. See Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (London: MacMillan, 1885) 175-184.
103 General Comment 29 (n 64) paras 8 and 16.
colour, sex, language, religion or social origin.104 It is also significant that recent resolutions of the General Assembly and Commission on Human Rights have stressed that the enjoyment of rights must be without distinction upon such grounds, and that the Committee on the Elimination of Racial Discrimination has declared that the prohibition against racial discrimination is a peremptory norm of international law from which no derogation is permitted.105
Scope of the Prescription
The final two requirements of step 2 concern the scope of the prescription.
Step 2(c) concerns itself with the conferral of any discretion by the prescription. This in turn brings two matters into consideration. Primarily, any law authorising a restriction upon rights and freedoms must not confer an unfettered discretion on those charged with its execution. This goes to the framing of the discretion. Secondly, any discretion must not be arbitrarily applied. Both requirements call for the imposition of adequate safeguards to ensure that the discretion is capable of being checked, with appropriate mechanisms to deal with any abuse or arbitrary application of the discretion. These two restrictions on the conferral of discretions are reflected within the former Commissioner’s guidelines and those of the Council of Europe, as well as the Siracusa Principles.106
Step 2(d) looks at the potential scope of application of any counter-terrorist prescription or authorising provision. The point to be made here is that the objective of countering terrorism must not be used as an excuse by the State to broaden its powers in such a way that those powers are applicable to other matters. This is something expressly dealt with by both the Commission and Sub-Commission Special Rapporteurs.107 It is also reflected within the guidelines advocated by both the Committee of Ministers to the Council of
104 International Covenant on Civil and Political Rights, Article 4(1). See also Article 26.
105 See: GA Res 59/191 (n 12) preambular para 12; CHR Res 2005/80 (n 20) preambular para 15; and Committee on the Elimination of Racial Discrimination, “Statement on Racial
Discrimination and Measures to Combat Terrorism” (n 70) 107.
106 See: the Commissioner’s Guidelines (n 46) paras 3(b) and (j); the Council of Europe guidelines (n 41) Guideline II; and the Siracusa Principles (n 64) paras 16 and 18.
Europe and the Inter-American Commission on Human Rights, each directing that where measures taken by States to combat terrorism restrict human rights, those restrictions must be defined as precisely as possible and be necessary for the objective of countering terrorism.108 Application of this principle, posits the author, is relevant at both the creation and application of the prescription. In other words, the State must ensure that legislative prescriptions enacted for the purpose of countering terrorism do just that, and no more. Secondly, such measures must only be applied for the purpose of countering terrorism, rather than being ‘stretched’ to fit other objectives of the State.
PART TWO OF THE GUIDE
Once it has been established that a counter-terrorist measure impacts upon a right or freedom that may be limited (Part 1, step 1) and that the means of establishing or authorising the measure is by a proper prescription (Part 1, step 2), Part 2 of the Guide then calls for the decision-maker to consider the issue of necessity and proportionality:
Part Two:
Necessity and Proportionality
(a) It is in pursuit of a pressing objective. In principle, the objective of countering terrorism is one that is pressing and substantial in a free and democratic society and one that may therefore justify the limitation of derogable human rights. Notwithstanding the importance of counter- terrorism per se, it is the particular objective of the legislative provision or counter-terrorist policy/measure in question that must be assessed. It will be instructive in this regard to identify how the measure or provision links with:
- (i) The countering of an actual threat of terrorism against the State;
- (ii) The countering of a potential threat of terrorism against the State;
- (iii) Its contribution to the international framework on counter-terrorism; and
- (iv) Its contribution to other national interests.
107 Special Rapporteur’s report (n 58), para 47; and Sub-Commission Rapporteur’s report (n
21) para 33.
108 See: the Council of Europe guidelines (n 41) Guideline III(2); the Inter-American Commission on Human Rights report (n 48) paras 51 and 55; and the Siracusa Principles (n
64) para 17.
(b) It is rationally connected to the achievement of the objective being pursued, requiring the counter-terrorist measure being examined to logically further the objective of countering terrorism.
(a) The measure or provision must effect a “limitation” upon rights, rather than an exclusion of them, or such a sever limitation that would impair the essence of the right or freedom being affected.
(b) The human rights impact of the counter-terrorist measure must be determined by considering the following questions:
- (i) What is the importance of, or the degree of protection provided by, the right or freedom affected?
- (ii) What are the effects of the limiting provision (or measure) upon the right or freedom?
(c) The value to be accorded to the counter-terrorist measure must be determined by considering the following questions:
- (i) What is the importance of the objective being pursued by the counter- terrorist provision or measure?
- (ii) How effective is the counter-terrorist measure in achieving its objective (what is its ameliorating effect)?
(d) With the aim of producing the least reasonably intrusive means of achieving the counter-terrorist objective, balance the two scales by asking the following substantive question:
Having regard to the importance of the right or freedom [4(b)(i)], is the effect of the measure or provision upon the right [4(b)(ii)] proportional to the importance of the objective, and the effectiveness, of the legislative provision or measure [4(c)]?
Part Two, Step 3:
The Counter-Terrorist Measure Must be Necessary
To legitimate a limitation of a right or freedom, any such limitation must be necessary for the achievement of a pressing objective. Step 3 considers this requirement in two parts: the objective of the provision effecting the limitation; and ensuring that there is a rational link between that provision and the objective.
The Objective of Countering Terrorism
The State has an undeniable duty to protect its nationals and it cannot be doubted that counter-terrorism is a sufficiently important objective in a free and democratic society to warrant, in principle, measures to be taken which might place limits upon rights and freedoms. The fear-inducing nature of terrorist acts has far-reaching consequences. Likewise, the means through which terrorist activities are facilitated have links to other negative conduct and impacts upon the individual, municipal societies, and international security. This is clearly recognised within the international guidelines mentioned, and within resolutions of the Security Council, General Assembly and Commission on Human Rights.109
The Objective of the Particular Counter-Terrorist Measure
There is clear recognition, then, that terrorism impacts upon both individuals and society as a whole, so that the countering of those adverse effects must constitute an important objective in and of itself. Care should be taken, however, not to over-simplify this position. Paragraph 4 of the former Commissioner’s Guidelines advocates that limits: must be necessary for public safety and public order (limiting this to the protection of public health or morals and for the protection of the rights and freedoms of others); that they serve a legitimate purpose; and be necessary in a democratic society. One should also bear in mind that this position only applies to rights that are derogable and capable of limitation in the first place.
These are matters that go to both the objective of countering terrorism in the abstract, and to the particular means by which that objective is put into effect. The latter aspect demands that the means are proportional to the objective. It will be instructive to this balancing exercise to determine what the objective of the counter-terrorist provision or measure is, and how it may contribute to other pressing objectives. The Guide points, in that regard, to the identification of the link between the provision or measure being examined and four often inter-linked matters (step 3(a)). It should be noted that, when speaking of threats of terrorism “against the State”, the author is using that expression in its broadest sense to speak of threats of terrorist acts being perpetrated within the territory of the State.
109 See, infra, chapter 6.
Due to the manner in which terrorist organisations operate, it is a very difficult thing to assess the existence and level of the threat of terrorism, whether actual or potential. It is an imprecise science. If it was not so, countering terrorism would not be as great a concern as it is to the international community. Determining the actual threat of terrorist acts against the State is a natural starting point for determining the threat of terrorism to the State, and the importance of the objective of a counter- terrorist measure directed to assuaging such a threat. Albeit the obvious place to begin, evidence of actual threats is not so palpable. Establishing the existence of actual threats relies upon intelligence which, while very important, has its own set of complications.110 Intelligence is not always available, said to be the case in the Bali bombings of October 2002 and 2005, and the London bombings in July 2005.111 It is not always reliable, as was the case with the intelligence failures concerning the presence of weapons of mass destruction in Iraq in the lead-up to the 2003 invasion of Iraq.112 Finally, intelligence information may not always be properly assessed, as is alleged to be the case prior to the September 11, 2001 attacks in the United States of America.113 Further complicating matters, it should also be remembered that the absence of intelligence does not mean an absence of a threat.
110 As acknowledged by John Lewis, Deputy Director of the FBI Counter-Terrorism Division: “Intelligence is an imperfect business at best” (from a paper presented at the ‘Intelligence Challenges in Counter-Terrorism’ workshop at the Terrorism’s Global Impact Conference, Interdisciplinary Center Herzlyia, 13 September 2005).
111 Concerning the 2002 Bali Bombings, see Mark Forbes, ‘No Warning of Bali Bombing’ (The Age, 11 December 2002), online: <http://www.theage.com.au/articles/2002/12/10/ 1039379835160.html> (last accessed 21 August 2005). Compare this with assertions that intelligence agencies did indeed have information pointing to such an event: see, for example, Laura Tiernan, ‘Australian Intelligence Inquiry into Bali Warnings “a Whitewash”’ (World Socialist Web Site, 7 January 2003), online: <http://www.wsws.org/ articles/2003/jan2003/igis-j07.shtml> (last accessed 21 August 2005). Concerning the
London Bombings on 7 July 2005, compare: Wikipedia, ‘7 July 2005 London Bombings’, online: <http://en.wikipedia.org/wiki/7_July_2005_London_bombings> (last accessed 21 August 2005); and Wikinews, ‘Coordinated Terrorist Attack Hits London’ (7 July 2005), online: <http://en.wikinews.org/wiki/Explosions,_'serious_incidents'_occuring_across_ London> (last accessed 21 August 2005).
112 See, for example, CNN.com, ‘Report: Iraq intelligence “dead wrong”’ (1 April 2005), online: <http://www.cnn.com/2005/POLITICS/03/31/intel.report> (last accessed 21 August
2005).
113 Subcommittee on Terrorism and Homeland Security, House Permanent Select Committee on Intelligence, Counterterrorism Intelligence Capabilities and Performance
Assessing the threat of terrorist acts against the State, which is to be measured against both the probability of that potential being actualised and the probable consequences of such acts, also relies upon intelligence, but to a lesser extent.114 Potential threats are to be assessed by having regard to the motivation and operational capacity of terrorist networks. In this regard, “operational capacity” refers to the ability of terrorist networks to gain access to the territory, or to facilities of the State, and perpetrate terrorist acts therein. While border security is a matter that almost all States have paid increased attention to in the new millennium, it must be acknowledged that trans-boundary activity and the relatively simple and inexpensive means of perpetrating terrorist acts means that the operational capacity of most terrorist entities should be viewed as being reasonably high.115 Concerning the second factor in assessing the potential threat of terrorism, “motivation” refers (in simple terms) to the question of whether the State is a likely or possible target of terrorist networks. It is here that one should have particular regard to the ideology and motivations of the “global jihad”, which was considered in chapter 2.
This next consideration is one that will be common to all States: the question of the State’s contribution to the international framework on anti- terrorism and how the measure being examined contributes to this. As considered in chapter 3, former US Ambassador to the United Nations, John Danworth, made this point in an address to the Security Council’s Counter-Terrorism Committee in 2004:116
[The Committee] must never forget that so long as a few States are not acting quickly enough to raise their capacity to fight terrorism or are not meeting their international counterterrorism obligations, all of us remain vulnerable.
Prior to 9-11, July 2002, online: <http://www.fas.org/irp/congress/2002_rpt/ hpsci_ths0702.html> (last accessed 21 August 2005).
114 On the issue of assessing potential threats of terrorism see, for example: University of Arizona, Eller College of Management, and Artificial Intelligence Lab, Terrorism
Knowledge Discovery Project. A Knowledge Discovery Project to Addressing the Threats of Terrorism (September 2004).
115 See, for example, Marc Nicholson, ‘An Essay on Terrorism’, 2003
AmericanDiplomacy.org, online: <http://www.unc.edu/depts/diplomat/archives_roll/ 2003_07-09/nicholson_terr/nicholson_terr.html> (last accessed 10 August 2005).
New Zealand’s role in the countering of international terrorism is considered in more detail in chapter 3.
Beyond the countering of actual or potential threats of terrorism against a State, there may also be other national security issues that are furthered by selected counter-terrorist measures. This is particularly relevant to the risk of non-conventional terrorist attacks (those employing biological or nuclear weapons in particular), where the threat of a terrorist act against a State’s neighbour can be as important as one to the State itself.
Equally, certain measures may contribute to the promotion of other national interests. Broadly speaking, it is safe to assume that it will be in the national interest of most responsible international actors to contribute to the international framework on counter-terrorism and thereby contribute to the maintenance of a peaceful, secure, and free-functioning international society. On a more specific level, border security, for example, is not just relevant to countering terrorism, but also to the maintenance of import and export trades, the thwarting of drug-trafficking, and illegal migration. Anti- money laundering practices contribute to the suppression of organised crime of all types, not just the financing of terrorism. The protection of nuclear material is relevant not only to preventing terrorist organisations from gaining access to and using nuclear weapons as tools of terrorism, but also to the objective of disarmament and non-proliferation.
Rational Connection
The final component of step 3, requiring limiting measures to be rationally connected to the achievement of the objective being pursued, is relatively simple in its application. It is drawn from both the international guidelines on counter-terrorism and human rights and from the jurisprudence of the Supreme Court of Canada on the application of Canada’s “justified limitations” qualification in the Charter of Rights and Freedoms. Rational connection will require that the counter-terrorist measure being scrutinised logically furthers the objective of countering terrorism. The Court, in Lavigne v Ontario Public Service Employees Union, explained that the inquiry into “rational connection” between objectives and means “requires nothing more than a showing that the legitimate and important goals of the legislature are logically furthered by the means the government has chosen
to adopt”.117 Evidence of this connection might be necessary where such a link is not plainly evident.118 This first requirement links with the former Commissioner’s guidelines, and those of the Council of Europe and Inter- American Commission on Human Rights.119
Part Two, Step 4: Achieving Proportionality
The final step in the Guide is to achieve proportionality. The starting point is that limitations imposed by counter-terrorist measures must not impair the essence of the right being limited (step 4(a)).120 It is envisaged that this
116 United Nations Foundation, ‘Counterterrorism Cooperation Improving, Security Council Told’, UN Wire, 20 July 2004, online: <http://www.unwire.org/UNWire> (last accessed 20 July 2004).
117 Lavigne v Ontario Public Service Employees Union [1991] SCR 211, 219. The Supreme
Court Directions on the Charter of Rights notes that the Court has seldom found that legislation fails this part of the test, although there are instances where this has occurred: David Stratas et al, The Charter of Rights in Litigation. Directions from the Supreme Court of Canada (Canada Law Book Inc, 1990-), 6:06. In R v Oakes, for example, section 8 of the Narcotic Control Act 1970 was found to lack rational connection. Section 8 (which had certain criminal process implications and thereby impacted upon criminal process rights) contained a statutory presumption that possession of even small amounts of narcotics meant that the offender was deemed to be trafficking in narcotics. There was no rational connection, said the Court, between the possession of small amounts of narcotics and the countering of trafficking: R v Oakes [1986] 1 SCR 103.
118 Figueroa v Canada (Attorney General) [2003] 1 SCR 912. The Supreme Court of Canada was critical here of aspects of the Canada Elections Act 1985 concerning the registration of political parties and the tax benefits that flow from such registration. The Act required that a political party nominate candidates in at least 50 electoral districts to qualify for registration. While the Court held that it was a pressing objective to ensure that the tax
credit scheme was cost-efficient, it found that there was no rational connection between that objective and the 50-candidate threshold requirement. Iacobucci J for the majority was particularly critical of the fact that the government had provided no evidence that the threshold actually improved the cost-efficiency of the tax credit scheme.
119 See paras 4(b) and (d) of the former Commissioner’s Guidelines (n 46) requiring limitations to be necessary for public safety and public order, and necessary in a democratic society. See also: the Inter-American Commission on Human Rights report (n 48) paras 51 and 55; and the Council of Europe guidelines (n 41) Guideline III(2).
120 This is demanded of para 4(c) of the Commissioner’s Guidelines (n 46). Although decided only once by the Supreme Court of Canada, and controversially so, a similar position was arrived at under the Canadian Charter of Rights and Freedoms. In Attorney
General for Quebec v Quebec Protestant School Boards, [1984] 2 SCR 66, the Supreme Court had to consider the validity of the “Quebec clause” of the Charter of the French Language (Quebec Bill 101), which limited admission to English-language schools to children of persons who themselves had been educated in English in Quebec. In accepting that the Quebec clause was inconsistent with s 23(1)(b) of the Charter, the Court held that it
is a matter that will be achieved through the proper application of step 1 the Guide (determining the permissible scope of limitations upon the right or freedom). From that point, it is then a case of quantifying the value to be afforded to each side of the scale to be balanced (countering terrorism versus the unlimited enjoyment of human rights), and then making the inevitably subjective determination of where the balance lies.
The Human Rights ‘Scale’
The second scale demands an assessment of the impact of counter-terrorist provision or measure upon human rights, bearing in mind not just the level to which the measure limits a right but also what level of importance the right itself holds (step 3(b)). This will require some further analysis and is again drawn from very helpful decisions of the Supreme Court of Canada on the question of the limitation of rights. Although the Court has properly taken the approach of assessing each case having regard to the particular legislative provision being examined and upon the facts, it has provided some guidance on how to go about this. In the well-known decision of R v Oakes, the Court spoke of the need to ensure that the law which restricts the right is not so severe or so broad in its application as to outweigh the objective, adding in R v Lucas that this requires consideration of the importance and degree of protection offered by the human right being limited.121 This distinction between the importance of the right versus the impact upon the right recognises that a minor impairment of an important right, for example, might be more significant than a major impairment of a trivial right.
amounted to a denial of the Charter right and therefore refused to be drawn into the question of any justification under the general limitations provision. Professor Peter Hogg criticizes the distinction between “limits” and “denials” due to the fact that there is no legal standard by which Charter infringements can be sorted into the two categories: see Peter W Hogg, Constitutional Law of Canada, Student Edition (Thomson Carswell, 2005), 799. In a later Canadian case, Ford v Quebec (Attorney General), [1988] 2 SCR 712, at 773, the Supreme Court described the Quebec School Boards case as a “rare case of a truly complete denial of a guaranteed right or freedom” and, in doing so, recognized that most (if not all) legislative qualifications of a right or freedom will amount to a denial of the right or freedom to that limited extent. On the other hand, it observed, a limit that permits no exercise of a guaranteed right or freedom in a limited area of its potential exercise is not justifiable (733- 734).
121 R v Oakes [1986] 1 SCR 103, 106; and R v Lucas [1998] 1 SCR 439, para 118.
The Counter-Terrorism ‘Scale’
The first scale involves an assessment of the importance of the counter- terrorist objective being pursued as well as the efficacy of it, recognising that different counter-terrorist measures will not just impact upon rights in a different way, but will also have different levels of effectiveness. The importance of the counter-terrorist measure has already been assessed when determining whether the measure is necessary (step 3(a)).
Also of great importance, having regard to the repeated reference to proportionality and appropriateness, will be the question of effectiveness (step 3(c)(ii)).122 Not only is the nature of the objective being pursued by the counter-terrorist measure important, so is the effectiveness of the counter-terrorist measure in achieving that objective. To be proportional, a counter-terrorist measure be rationally connected to a legitimate objective and must also (to warrant the limitation of rights) be effective. To impose a limitation upon rights for the purpose of countering terrorism, but by ineffective means, is unlikely to be justifiable. Such means would in all probability be neither necessary, proportional, nor appropriate.
Balancing the Scales
A further proportionality requirement under the Canadian Charter of Rights and Freedoms, and the former Commissioner’s Guidelines, is that the limiting measures must impair the right or freedom as little as reasonably possible (Guide, 5.1).123 The Supreme Court of Canada has at times displayed a degree of deference here, reluctant to examine the availability of alternative means of achieving an objective where the impairment upon the right is not serious. If the particular human rights limitation is trivial, then the availability of alternatives that might lessen that impact have tended to be seen as falling within the appropriate exercise of legislative choice, rather than one demanding intervention by the judiciary.124Other
122 See, for example, paras 4(b), 4(e), 4(f) and 4(g) of the Commissioner’s Guidelines (n 46).
123 See: R v Oakes [1986] 1 SCR 103, 106; and R v Edwards Books and Art Ltd [1986] 2 SCR 713, 772-773.
124 In R v Schwartz [1988] 2 SCR 443, for example, it was suggested that the statutory provision (which provided for a presumption that a person did not have a firearms licence if s/he failed to produce one upon request) unnecessarily infringed the presumption of
innocence. Counsel for Schwartz argued that police could simply check their computerised records to ascertain whether a licence had indeed been obtained. McIntyre J stated that: “Even if there is merit in the suggestion... Parliament has made a reasonable choice in the matter and, in my view, it is not for the Court, in circumstances where the impugned provision clearly involves, at most, minimal - or even trivial - interference with the right
than this understandable and reasonably minor degree of deference, this requirement fits with paragraph 4(g) of the former Commissioner’s Guidelines (being the least intrusive means of achieving the protective function of the limitation). In doing so, this also appears to fit with the reasonably broad requirement in paragraph 4(h) that any limitation must be compatible with the objects and purposes of human rights treaties. Arising from the latter requirements, but expressly stated within paragraph 4(d) of the former Commissioner’s Guidelines, is the important point that any counter-terrorist provisions must be interpreted and applied in favour of rights.
With these points in mind, one must balance the human rights and counter-terrorist scales with the aim of producing the least reasonably intrusive means of achieving the counter-terrorist objective. To that end, step 4(d) formulate the following substantive question for determination by the decision-maker:
Having regard to the importance of the right or freedom [3(b)(i)], is the effect of the measure or provision upon the right [3(b)(ii)] proportional to the importance of the objective, and the effectiveness, of the legislative provision or measure [3(c)]?
It should be pointed out that the issues raised by the question formulated will not normally be black and white and its consideration is likely to require debate and the complex interaction of value judgments. Dispute remains over the peremptory versus qualified status of some human rights. Cultural ideals, and political persuasions, will likewise result in different values being attached to certain rights (a matter that is inherently recognised in the margin of appreciation jurisprudence of the European Court of Human Rights).125 What the Guide ensures, however, is that such debate reflects upon all relevant factors germane to both countering terrorism and complying with international human rights obligations.
guaranteed in the Charter, to postulate some alternative which in its view would offer a better solution to the problem...” (pp 492-493).
125 The margin of appreciation doctrine involves the idea that each society is entitled to
certain latitude in resolving the inherent conflicts between individual rights and national interests, or among different moral convictions: see Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31 International Law and Politics 843, 843-844. For a comprehensive discussion of the doctrine, see Yutaka Arai- Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, 2002).
Conclusion
The era of global jihadism, together with the threat of non-convention terrorism and the need for universal and effective implementation of the international framework on counter-terrorism, has brought with it public pressure for adequate security laws and a consequent proliferation of counter-terrorist legislation and policies. The manner in which some counter-terrorist legislation and policies have developed has in turn seen a growing concern from both non-governmental and inter-governmental agencies about the need to ensure compliance with human rights when seeking to combat terrorism. The aim of the ICT Project was to assess the various international and regional directions and guidelines on the subject and draw from these a workable set of considerations to be taken into account when attempting to determine the balance to be struck between counter-terrorism and the unlimited enjoyment of human rights. In advocating the Guide explained in this paper, the Project was conscious to bring into account the relevant and practical matters particular to countering terrorism. Likewise, in drawing out a set of principles from the guidelines examined, it was also careful not to overshadow the technical and particular requirements of the various international human rights treaties to which a State might be party.
Chapter 8
Civil and Political Rights in New Zealand
In establishing the foundations for the examination of the interface between counter-terrorism and human rights in New Zealand, the previous two chapters have considered the interface between terrorism, counter-terrorism and human rights at the international level. This chapter looks at New Zealand’s civil and political rights framework. In doing so, a focussed approach is adopted, limiting the scope of this chapter to consideration of the key issues that will be involved in the examination of issues under Part III of this text.
With that approach in mind, this chapter provides an overview of the mechanisms through which New Zealand has implemented its obligations under the International Covenant on Civil and Political Rights, this being the document in respect of which most human rights issues arise in the context of counter-terrorism law and practice. Chapter 9 then considers the particular question of the limitation of rights.
New Zealand’s Civil and Political Rights Framework
Chapter 6 has provided an overview of the international human rights law framework. New Zealand is, in that regard, a party to what are regarded to be the six ‘core’ human rights treaties stemming from the 1948 Universal Declaration of Human Rights.1 The most significant of those, at least for
1 Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 9464 UNTS 211 (entered into force 4 January 1969 and ratified by New Zealand in 1975); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976 and ratified by New Zealand in 1978); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976 and ratified by New Zealand in 1978); Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981 and ratified by New Zealand in 1984); Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 112 (entered into force 26 June 1987 and ratified by New Zealand in 1989); and Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 43 (entered into force 2 September 1990 and ratified by New Zealand in 1993).
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
the purpose of this text, is the International Covenant on Civil and Political Rights (the ICCPR). The ICCPR consists of 27 articles enunciating a wide range of civil and political rights, from the right to self-determination, to freedom of speech and association, to minimum guarantees for the conduct of the criminal process.
Although the articulation of those rights is significant in itself, it is not just this aspect that makes the ICCPR an important human rights document. The ICCPR is the instrument through which the Human Rights Committee was established.2 The Committee has three functions, all linked to civil and political rights protection. The first of these is to receive and comment on periodic reports from States parties to the ICCPR.3 New Zealand has submitted four reports to the Human Rights Committee under this procedure.4 Next, the Committee is empowered to make general comments, of its own volition, on any matter touching upon the rights set out in the ICCPR.5 Finally, and significantly in terms of the enforcement of rights, the Committee carries out a quasi-judicial function under the First Optional Protocol to the ICCPR, which establishes a complaints procedure.6 The Optional Protocol gives individuals within States which are party to the Protocol the right of direct petition to the Human Rights Committee in
ratified by New Zealand in 1989); and Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 43 (entered into force 2 September 1990 and ratified by New Zealand in 1993).
2 The Human Rights Committee was established under Article 28(1) of the International Covenant on Civil and Political Rights.
3 See Article 40(1) of the International Covenant on Civil and Political Rights. States parties are required to submit reports to the Human Rights Committee every five years, detailing the measures adopted to give effect to the rights recognised in the ICCPR and on the progress made in the enjoyment of those rights.
4 For the latest report by New Zealand to, and comments of, the United Nations Human Rights Committee, see Ministry of Foreign Affairs and Trade, New Zealand’s Fourth Periodic Report to the Human Rights Committee (2001) CCPR/C/NZL/2001/4; and Human Rights Committee Comments on New Zealand’s 4th Periodic Report, UN Doc CCPR/CO/75/NZL (2002).
5 General Comments by the Human Rights Committee are authorised by Article 40(4) of the International Covenant on Civil and Political Rights. On reading that provision, it might appear that comments are limited to responses to specific periodic reports submitted by
states party to the ICCPR. The Committee has adopted the practice, however, of making its comments open to all states parties and in more general terms, with the aim of assisting states with the interpretation and implementation of the Covenant. To view the general comments of the Committee, see URL <www1.umn.edu/humanrts/gencomm/ hrcomms.htm>.
6 First Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976 and ratified by New Zealand in 1989).
certain well-defined circumstances.7 Of interest, although prior to the enactment of the NZBORA, Professor Jerome Elkind saw this mechanism as establishing within New Zealand a ‘Bill of Rights’ in itself and changing the helplessness of New Zealanders in the human rights arena.8 The NZBORA came into force five months later.
Legislative Implementation of International Human Rights Obligations in New Zealand
As discussed within chapter 4, treaties are not law of the land unless incorporated by statute. This begs the question: given the number of international human rights treaty obligations adopted by the New Zealand Executive, which of those have been incorporated by statute and to what extent, therefore, are New Zealand’s international human rights obligations reflected in domestic law? The question is important in order to determine what rights and freedoms are guaranteed, albeit that some may already find recognition under the common law.9
There have been a number of statutes said to give effect to New Zealand’s international human rights obligations under the ICCPR. The three major enactments are the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993 and the Privacy Act 1993.10 Through its preamble, the NZBORA declares itself as:
An Act - (a) To affirm, protect and promote human rights and fundamental freedoms in New Zealand; and (b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.
Similarly, the Human Rights Act provides in its long title that it is:
An Act to consolidate and amend the Race Relations Act 1971 and the Human Rights Commission Act 1977 and to provide better protection of human rights
7 For a comprehensive explanation of the communication procedure, see PR Ghandi, The Human Rights Committee and the Right of Individual Communication (Ashgate Dartmouth Publishing Ltd, 1998).
8 Jerome Elkind, “The Optional Protocol: A Bill of rights for New Zealand” [1990] New Zealand Law Review 96, 101.
9 That rights exist in the absence of legislation is implicitly accepted through the wording of the New Zealand Bill of Rights 1990: see sections 2 (“rights affirmed”) and 28 (“other rights not affected”).
10 The Fourth Periodic Report to the HRC (n 4) at 16 identifies the following additional enactments as creating the legislative structure within which human rights are protected in
New Zealand: Ombudsman Act 1975, Official Information Act 1982, Privacy Act 1993, Police Complaints Authority Act 1988, Children, Young Persons and Their Families Act 1989, and the Health and Disability Commissioner Act 1994.
in New Zealand in general accordance with the United Nations Covenants or Conventions on Human Rights.
Although the long title to the Privacy Act does not make explicit reference to obligations under the International Covenant, it does hold itself out as being an Act to establish principles concerning:11
(i) The collection, use, and disclosure, by public and private sector agencies, of information relating to individuals; and
(ii) Access by each individual to information relating to that individual and held by public and private sector agencies; and
Those are clearly matters that bear upon the implementation of the right to privacy, as set out in Article 17 of the ICCPR.12
The Human Rights Act 1993
The Human Rights Act (HRA) was enacted in 1993 to combine and extend the Race Relations Act 1971 and Human Rights Commission Act 1977. The original grounds of discrimination under the Race Relations Act and Human Rights Commission Act continue to be prohibited under the HRA through section 21(a) to (g): discrimination on the grounds of sex, marital status, religious belief, ethical belief, colour, race and ethnic or national origins. The 1993 Act also extends protection against discrimination on the grounds of disability, age, political opinion, employment status, family status and sexual orientation through section 21(h) to (m).13
11 See preambular paragraph (a) to the Privacy Act 1993. Note, also, that the long title does make reference to the recommendation of the Council of the OECD Concerning Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data.
12 Article 17 of the International Covenant on Civil and Political Rights provides: “(1) No
one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks”. It is not clear why Article 17 was not implemented through the New Zealand Bill of Rights Act 1990. In the 1985 White Paper on a Bill of Rights for New Zealand, the implementation of New Zealand’s obligations under the ICCPR was identified as one of the reasons in favour of New Zealand adopting a Bill of Rights: see New Zealand Department of Justice, A Bill of Rights for New Zealand - A White Paper (Government Printer, Wellington, 1985), 30 (para 4.21). The paper then states that “some provisions of the Covenant do not appear in the draft”, but gives no explanation for this: para 4.23.
13 The ground of age is not, strictly speaking, a “new” ground of prohibited discrimination.
It was in fact added to the Human Rights Commission Act 1977 in 1992 - see section 4 of the
Human Rights Commission Amendment Act 1992.
Part II of the HRA sets out the conditions which are deemed to amount to “unlawful discrimination” in relation to employment, partnerships, membership in professional or trade associations, membership in qualifying bodies and vocational training bodies, access to facilities open to the public, the provision of goods and services to the public, the provision of land, housing and other accommodation and access to educational establishments.14 Additionally, section 65 of the Act (pertaining to indirect discrimination) is a kind of catch all, prohibiting any policy or practice from having the effect of treating a person or group of persons differently on the basis of one of the prohibited grounds of discrimination, unless there is some “good reason”.
Through the linking provisions between the HRA and NZBORA,15 discriminatory conduct on the part of the State is also prohibited and subjects government to the discrimination complaints process under Part 3 of the Human Rights Act.
The Privacy Act 1993
The Privacy Act 1993 impacts upon the examination of issues concerning search and seizure, surveillance and access to personal information. The relevance of the right to privacy upon these issues is something that has been seen, for example, within the jurisprudence of the UN Human Rights Committee.16
The Privacy Act was enacted on 17 May 1993 “to promote and protect individual privacy” in both the public and private sectors.17 Section 6 of the Privacy Act establishes 12 Information Privacy Principles, which are concerned with the collection, storage, use and disclosure of personal information. Personal information is defined, under section 2 of the Act, as “information about an identifiable individual”. The Act has been characterised as both a human rights statute and freedom of information statute.18
14 See sections 22, 36, 37, 38, 40, 42, 44, 53 and 57 of the Human Rights Act 1993.
15 See sections 3 and 19 of the New Zealand Bill of Rights Act 1990 and Part 1A of the
Human Rights Act 1993 (inserted by the Human Rights Amendment Act 2001).
16 For a more detailed examination of the right under Article 17 of the International Covenant on Civil and Political Rights, and its impact upon these matters, see Alex Conte, Scott Davidson and Richard Burchill, Defining Civil and Political Rights. The
Jurisprudence of the United Nations Human Rights Committee (London: Ashgate Publishing Ltd, 2004), chapter 7.
17 See the preamble to the Privacy Act 1993.
18 See Mackay R and McArtney R, Privacy Law and Practice (Butterworths, Wellington, 1995), A/6.
The Act applies to the Crown, and any “agency” dealing with personal information.19 In a way similar to the Human Rights Act, the Privacy Act establishes a complaints procedure for the investigation of complaints under the Act. It also provides individuals with the means to have access to their records and request correction of any wrong information; and it requires every agency to have Privacy Officers, whose role it is to administer the application of the Privacy Act in their organisation, deal with information privacy requests and work with the Privacy Commissioner on any investigations.
The breach of an Information Privacy Principle will normally amount to an interference with the privacy of an individual, depending on the consequences of the breach.20 If such a breach proceeds to the Human Rights Review Tribunal, the Tribunal has the power to grant various remedies, including damages up to $200,000.00. Section 127 of the Act sets out the only criminal offences under the Act, which pertain to interference with the Privacy Commissioner’s investigations or instructions.
The New Zealand Bill of Rights Act 1990
The New Zealand Bill of Rights Act 1990 is, as already noted and reflected within the long title to the Act, the primary instrument through which New Zealand has implemented its obligations under the ICCPR. This part of the chapter only seeks to provide an overview of the Bill of Rights. A more detailed consideration of the operative provisions of the Act, and its ‘limitations clause’ in particular, is given later in this chapter, and in chapter 9. For now, it is sufficient to briefly consider the development of the Bill of Rights, the affirmation of rights within the Act, the application of the Act to the State, and the special role of the Attorney-General under the Act.
In his introduction to the White Paper on a Bill of Rights for New Zealand, Sir Geoffrey Palmer set out the motives of the Bill as follows:21
A Bill of Rights for New Zealand is based on the idea that New Zealand’s system of government is in need of improvement. We have no second House
19 See sections 2 to 5 of the Privacy Act 1993.
20 See section 66 of the Privacy Act 1993.
21 New Zealand Department of Justice, A Bill of Rights for New Zealand - A White Paper
(Government Printer, Wellington, 1985), 5.
of Parliament. And we have a small Parliament. We are lacking in most of the safeguards which many other countries take for granted. A Bill of Rights will provide greater protection for the fundamental rights and freedoms vital to the survival of New Zealand’s democratic and multicultural society.
The adoption of a Bill of Rights in New Zealand will place new limits on the powers of Government. It will guarantee the protection of fundamental values and freedoms. It will restrain the abuse of power by the Executive branch of Government and Parliament itself. It will provide a source of education and inspiration about the importance of fundamental freedoms in a democratic society. It will provide a remedy to those individuals who have suffered under a law or conduct which breaches the standards laid down in the Bill of Rights. It will provide a set of minimum standards to which public decision making must conform.
In its original form, Sir Geoffrey Palmer intended the NZBORA to have an enormous impact on the field of civil liberties in New Zealand. It was to be supreme law, overriding all other Acts of Parliament, all subordinate legislation and all public practices, in the same way as the Canadian Charter of Rights and Freedoms 1982 (the Canadian Charter).22 In its final form however, there were many significant changes made to the Bill and differences therefore exist between it and its Canadian equivalent. The most important of these relates to the status of the New Zealand instrument. Under the Canadian Charter, all forms of legislation are subject to the rights and freedoms guaranteed under the Charter. Any provisions of an Act of Parliament inconsistent with those rights and freedoms can be struck down by the judiciary. The rights and freedoms affirmed in the NZBORA, however, are subject to ordinary legislation: the Charter is “supreme” law, while the NZBORA is part of “ordinary” law.
This is a matter that has drawn the repeated criticism by the UN Human Rights Committee in its comments upon New Zealand’s reports to the Committee under Article 40 of the ICCPR. In its comments on New Zealand’s Third Periodic Report in 1994, the Committee said this:23
The Committee regrets that the provisions of the Covenant have not been fully incorporated into domestic law and given an overriding status in the legal system. Article 2, paragraph 2, of the Covenant requires States parties to take such legislative or other measures which may be necessary to give effect to the rights recognized in the Covenant. In this regard the Committee regrets that
22 The Canadian Charter is not an instrument on its own, but is in fact Part I of Canada’s
Constitution Act 1982, which is in turn Schedule B to the Canada Act 1982 (UK).
23 Ministry of Foreign Affairs and Trade, New Zealand’s Third Periodic Report to the Human Rights Committee (1994) CCPR/C/64/Add.10; and Human Rights Committee Comments on New Zealand’s 3rd Periodic Report, (1995) CCPR/C/79/Add.47, para 11.
certain rights guaranteed under the Covenant are not reflected in the Bill of Rights, and that it does not repeal earlier inconsistent legislation, and has no higher status than ordinary legislation. The Committee notes that it is expressly possible, under the terms of the Bill of Rights, to enact legislation contrary to its provisions and regrets that this appears to have been done in a few cases.
In reply to those criticisms by the Committee, the Fourth Report of 2000 seems to have either failed to answer the criticism, or misunderstood it.24 The Government’s response was to redirect the HRC criticism to the limited issue of the ability of Parliament to be able to pass legislation despite a report from the Attorney-General under section 7 of the NZBORA, allowing the possibility of some legislation enacted in breach of the Act and possibly the Covenant. The Fourth Report explained:25
Section 7 constitutes a safeguard designed to alert Members of Parliament to legislation which may give rise to an inconsistency with the Bill of Rights Act and, accordingly, to enable them to debate the proposals on that basis (see Mangawaro Enterprises Ltd. v. Attorney-General [1994] 2 NZLR 451, 457). The role of scrutinizing bills for consistency with the Bill of Rights Act and providing advice to the Attorney-General on the exercise of his or her duties under Section 7 is performed by the Ministry of Justice (in the case of legislation being promoted by a Minister other than the Minister of Justice), and by the Crown Law Office (in the case of legislation being promoted by the Minister of Justice).
The New Zealand Government pointed out that this vetting process can involve complex issues and that, in a number of circumstances, it is quite possible for there to be reasonably held competing points of view as to whether a provision does or does not infringe the provisions of the Act. While that is entirely rational, this response failed to answer the Committee’s earlier comments to the Third Periodic Report. The comments
24 Fourth Periodic Report (n 4) paras 24 to 34 inclusive. One should not, however, take this chapter as treating the Human Rights Committee’s criticism as being entirely meritorious. It is, in fact, rather simplistic in its approach and assumes that the judiciary should be the ultimate body deciding upon the extent to which citizens should enjoy rights and freedoms. In a recent report of the Regulations Review Committee, for example, Parliament was described as having this role, the Committee referring to Parliament as the “guardian of the public interest”: see Report of the Regulations Review Committee, Inquiry into Regulation- Making Powers that Authorise International Treaties to Override any Provisions of New Zealand Enactments, NZAJHR (2002) I. 16H, 16. That is, however, a subject outside the scope of this chapter. What is being illustrated is that New Zealand’s Fourth Periodic Report effectively ignored the criticism.
25 Fourth Periodic Report (ibid) para 27.
of the Human Rights Committee did not amount to a criticism of the legislative safeguards against enacting inconsistent legislation; they were in essence stating that this should not be a question for Parliament but one for the judiciary, with the power for the judiciary to strike down inconsistent provisions.
Part II of the Bill of Rights Act sets out the substantive rights affirmed by the Act, largely reflecting the content of the ICCPR on the subjects of life and security of the person, democratic and civil rights, non-discrimination and minority rights, search, arrest and detention, and rights to justice. A point to note is that the Act expresses itself as ‘affirming’ those rights (section 2), making it specifically clear under section 28 that:
An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.
In broad terms, the application of the Bill of Rights is limited to the conduct of the State and its agents:
This Bill of Rights applies only to acts done—
(a) By the legislative, executive, or judicial branches of the government of New Zealand; or
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
The text of Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand Bill of Rights, talks at great length about the impact of section 3 upon the legislative, executive and judicial roles of each branch of the State.26 For the purpose of this text, it is sufficient to note that the Bill of Rights applies to legislation,27 and the conduct of the executive branch, and the judiciary.28
26 Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand Bill of Rights (Oxford University Press, 2003), 70-115.
27 Ibid, 72.
28 Ibid, 81-83.
Already noted within chapter 5 is the fact that the NZBORA requires the Attorney-General to report to the House during the process of law-making:
7. Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights
Where any Bill is introduced into the House of Representatives, the Attorney- General shall,—
(a) In the case of a Government Bill, on the introduction of that Bill; or
(b) In any other case, as soon as practicable after the introduction of the Bill,—
bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights.
The role of Attorney-General under section 7 was not something that had been provided for under the White Paper version of the Bill of Rights, but was introduced as a compromise in the removal of the entrenched status of the Act and the introduction of the section 4 ‘sovereignty’ clause.29 The purpose of the provision is to promote compliance with the Bill of Rights’ substantive rights and freedoms protection, prompting Parliament to turn its mind to the passing of any legislation that would abrogate one of those substantive rights.30 Two particular matters are relevant. Firstly, the obligation to report to the House only arises when any Bill is “introduced”. There is no duty to review and report on any amendments to a Bill made or recommended as a result of the select committee review process.31 The second matter of importance is the relevance of section 5 to the Attorney- General’s function. Section 5 sets out a ‘justified limitations’ provision and, according to Crown Law officer Andrew Butler, “almost all advices prepared by the Ministry of Justice and the Crown Law Office for the Attorney-General as part of the section 7 NZBORA vetting process rely to some extent on section 5”.32
On the question of law-making, it should also be noted that the Legislative Advisory Committee33 has adopted Guidelines on Process and
29 White Paper (n 21).
30 Rishworth (n 26) 195-196.
31 Ibid, 196-197.
32 Andrew Butler, “Limiting Rights”, (2002) 33 Victoria University of Wellington Law Review 537, 538. See also Rishworth (n 26) 197.
33 Established by the Minister of Justice in 1996: see Department of Justice, ‘Who and What is the Legislative Advisory Committee?’ at URL <http://www.justice.govt.nz/lac/who/ index.html> at 24 March 2004.
Content of Legislation.34 Part of the Committee’s mandate is to “help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines”.35 The Guidelines require law-makers to confirm that proposed legislation complies with the NZBORA, Human Rights Act, Privacy Act, and international obligations.
Operation of the NZBORA
The New Zealand Bill of Rights stands as New Zealand’s primary piece of domestic legislation through which civil and political rights are protected. Having already provided a general overview of matters impacting upon the application of the Act, this part of the chapter will consider two issues in detail: the operative provisions of sections 4, 5 and 6; and the meaning of the term “enactments” (as used in sections 4 and 6 of the Act).
The ‘Unholy Trinity’ of sections 4, 5 and 6
The precise application of the NZBORA to any perceived conflict between it and any other rule is governed by what Dr James Allan has described as the “unholy trinity” of sections 4, 5 and 6 of the Act:36
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
34 Legislative Advisory Committee, Guidelines on Process and Content of Legislation (2001 ed, including 2003 supplement), available at URL <http://www.justice.govt.nz/lac/> .
35 Ibid, Term of Reference (e).
In general terms, the provisions are easy enough to understand. Section 4, a last-minute insertion into the Bill as a means of protecting Parliamentary sovereignty, ‘protects’ enactments by preventing the courts from ruling them to be invalid or ineffective as a result only of their inconsistency with the NZBORA. Section 6 requires that, where a provision of an enactment is open to more than one interpretation, then the interpretation that is consistent with the NZBORA is to be adopted. Section 5, an almost identical reflection of section 1 of the Canadian Charter of Rights and Freedoms 1982, permits limitations to be placed upon the rights and freedoms within the NZBORA where this reasonable, prescribed by law, and demonstrably justified in a free and democratic society.
The difficulty lies with the inter-relationship of the sections and the order in which they are to be applied. Section 4 talks of protecting provisions that are “inconsistent” with the Bill of Rights, while section 6 speaks of adopting meanings that are “consistent” with it. Section 5 sets out a limitations test, but expresses itself to be “subject to section 4”. The early approaches to the application of these provisions were set by the New Zealand Court of Appeal in Noort v MOT; Curran v Police.37 On the one hand, Cooke P took the view that primary focus should be placed upon sections 4 and 6 by determining whether there is an “irreconcilable conflict” between the legislation and the NZBORA. That is, the Court should first apply section 6 to try to achieve a consistent interpretation and then, if there is no consistent application, apply section 4 to override the NZBORA. In contrast, the approach of Justices Richardson, Hardie Boys and McKay placed emphasis on section 5 by first asking whether or not the provision or practice in question can be justified under section 5 of the Act. Delivering a more recent judgment of the same Court in Moonen v Film and Literature Board of Review, Tipping J outlined a five-step approach that he described as ‘helpful’ to the practical application of the operative provisions.38 It is notable, however, that this methodology was later
36 James Allan, “The Operative Provisions - An Unholy Trinity” [1995] Bill of Rights Bulletin 79.
37 Noort v MOT; Curran v Police [1992] NZCA 51; [1992] 3 NZLR 260.
38 Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, 17. The five- step process was described as follows: (1) Identify the different interpretations of the words contained in the enactment being examined: if only one interpretation is open: that meaning should be adopted (s4); if more than one meaning is open, proceed to the next step. (2) Identify the meaning which constitutes the least possible limitation on the right or freedom in question and adopt that meaning (s6).
(3) Having adopted the appropriate meaning (through either steps one or two), identify the extent – if any – to which that meaning limits the relevant right or
expressed by the Court of Appeal as not intended to be prescriptive and that other approaches were open to application of the operative provisions of the Bill of Rights Act.39
Taking into account that the final step advocated in Moonen is merely announcing the result of the fourth step, Professor Rishworth’s text arrives at a four-step process in the application of sections 4, 5 and 6. The text also explains that the second and third steps in Moonen are reversed, rationalising that although there is little practical difference in doing so overall, the change makes the exercise more efficient by considering consistency before ambiguity.40 For the purpose of this chapter, the four- step approach adopted in that text is summarised as follows:41
It is for the party seeking to invoke the Bill of Rights to firstly define the right being invoked and demonstrate that it applies to the circumstances being complained of. If the party is unable to do so, then the NZBORA is neither applicable nor relevant.42
An enactment is ‘consistent’ with the Bill of Rights, explains the text, if “it either (a) effects no limitation on a right or freedom at all, or (b) limits a
freedom. (4) Consider whether that limitation (if found) can be demonstrably justified in a free and democratic society (s5): if it can, then that is the end of the matter; if it cannot, proceed to the next step. (5) Although a particular meaning to the enactment will have been adopted by this stage (ss4 or 6), if that meaning “fails” the s5 test, then it is a limitation that is not justifiable in a free and democratic society. Step 5 accordingly requires the Court to issue a declaration to that effect (termed a declaration of inconsistency or incompatibility).
39 Moonen v Film and Literature Board of Review (No 2) [2002] NZCA 69; [2002] 2 NZLR 754, 760 (para 15). See also Hopkinson v Police [2004] NZHC 1089; [2004] 3 NZLR 704, 709 (para 28), in which France J in the High Court observed that the five-step process outlined in Moonen (No 1) was not a prescriptive one and other approaches were available in Bill of Rights cases.
40 Rishworth (n 26) 136.
41 Ibid, 135-157.
42 See, for example, Palmer v Superintendent Auckland Maximum Security Prison [1991] 3
NZLR 315 (where it was held that section 4 of the Criminal Justice Act 1985 had no application to the right of a prisoner to be credited with time spent on remand in determining eligibility for parole), and Hart v Parole Board [1999] 3 NZLR 97 (where it was held that recall from parole was part of the punishment for the original offending and did not therefore amount to a double punishment).
right or freedom to the extent permitted by s. 5”.43 This second step therefore calls for careful consideration of whether the enactment does limit a right or freedom and, if it does, whether (by application of section 5) such a limit is justified.44 There are three potential outcomes. Firstly, the enactment does not effect a limitation upon the advocated right, in which case the right is fully protected and there is no need for further enquiries to be made.45 Secondly, if the enactment does effect a limitation, it might be concluded that the limitation is demonstrably justified in a free and democratic society. In that event, the enactment is not ‘inconsistent’ with the Bill of Rights and this again brings consideration of the NZBORA to a close. It is only in the third potential outcome that the matter must proceed to steps 3 and 4: where the enactment does effect a limitation upon a right or freedom and the limitation cannot be justified under section 5 of the NZBORA.
The third step is to establish whether an alternative interpretation of the enactment (one that is consistent with the right invoked) is possible. The important feature here is that any alternative meaning must not be as a result of a strained interpretation of the enactment, contrary to its ordinary meaning or to Parliament’s intent.46 Andrew Butler adds that, since consideration of section 5 needs to precede the determination of a binding interpretation of an enactment, section 6 can only demand that the courts apply a meaning which least reasonably limits the NZBORA.47
43 Rishworth (n 26) 138.
44 Which is, as pointed out by Rishworth, analogous to the methodology adopted under the Canadian Charter of Rights and Freedoms: ibid, 138; see also R v Oakes [1986] 1 SCR 103, 138-139.
45 That is effectively the same outcome as failing to demonstrate that the right invoked applies to the circumstances being complained of (step 1).
46 Risjworth (n 26) 143-147. See, in particular, R v Clarke [1985] 2 NZLR 212, 214, where the Court of Appeal criticised an earlier obiter approach in Flickenger v Crown Colony of Hong Kong [1991] 1 NZLR 439, in which the Court has discounted the statutory context and
history of section 66 of the Judicature Act 1908 in favour of a literal meaning of the provision. The meaning adopted must be ‘reasonably available’: see, for example, R v Phillips [1991] NZCA 23; [1991] 3 NZLR 175, 176-177, Noort v MOT; Curran v Police [1992] NZCA 51; [1992] 3 NZLR 260,
272, and Simpson v Attorney-General (Baigent’s Case) [1994] NZCA 287; [1994] 3 NZLR 667, 674.
47 Butler (n 32) 577. Compare this to the approach under section 3(1) of the Human Rights Act 1998 (UK), where the UK Parliament rejected the New Zealand model of requiring a reasonable interpretation: see discussion on this point by the House of Lords in Ghaidan v Mendoza [2004] UKHL 30; [2004] 3 All ER 411, 426.
The previous investigations all lead to the application of the directions under sections 4 and 6 of the Bill of Rights Act. If there is an alternative meaning properly available in the interpretation of the enactment, then section 6 directs that this must be adopted. If there is no alternative meaning, then the enactment is (in the words of Cooke P) in an “irreconcilable conflict” with the Bill of Rights and must, by application of section 4, prevail.
The Meaning of the Term “Enactments”
As might be evident from the preceding discussion, the meaning of the term “enactments” has significant consequences upon the application of the operative provisions. In basic terms, if the provision being complained of is not an “enactment”, then section 4 of the NZBORA cannot act to ‘preserve’ the provision where it is in conflict with one of the rights and freedoms within the Bill of Rights. Against that background, the issue to consider is what the meaning of “enactments” is - in particular, whether subordinate legislation falls within the scope of the term. Two potentials exist. The first, by way of a broad interpretation, is that the term is taken to include subordinate legislation as well as Acts of Parliament. Alternatively, by way of restrictive interpretation, the term could be taken to refer to Acts of Parliament alone.48
There are a number of arguments that could be made in support of both approaches. With respect to the broad approach, three main points can be made that tend to favour that approach. The first pertains to the Interpretation Act 1999, in which the term “enactment” is defined as inclusive of both primary and subordinate legislation.49 Following this approach, an enactment is the whole or part of any Act of Parliament and includes subordinate legislation made under its principal. In his most recent edition of Statute Law in New Zealand, Professor John Burrows concludes
48 The various arguments presented below are discussed in more detail in the author’s article “The Application of Section 4 of the Bill of Rights Act 1990 to Subordinate Legislation” [1997] 3 Human Rights Law and Practice 146.
49 The earlier Acts Interpretation Act 1924 only defined the term “Act” (as “an Act of the
General Assembly and includes all rules and regulations made thereunder”); whereas its successor, the Interpretation Act 1999, defines “enactment” as “the whole or a portion of an Act or regulations”.
that this definition is to be applied to the terms as used in section 4 of the Bill of Rights, unless the regulations were ultra vires.50
In his second edition of Statute Law in New Zealand, Professor Burrows discussed the matter in more detail and posited that the term “enactments” must extend to regulations as well as Acts of Parliament if one considers the language of section 4 of the Bill of Rights Act.51 In doing so he points to the fact that section 4 of the Bill of Rights Act refers to enactments “passed” or “made”. Since Acts of Parliament are passed by Parliament, and subordinate legislation made by delegates, the logical conclusion to be drawn is that Parliament must have intended “enactments” to include both Acts of Parliament and subordinate legislation. There is weight in this argument, particularly when one has further regard to the wording of section 4 (sub-paragraph (a) in particular), which refers to provisions impliedly “repealed” or “revoked”. As before, an Act of Parliament is repealed, whereas subordinate legislation is revoked.
A third argument in favour of a broad interpretation of the term “enactments” could be based on the case of Black v Fulcher.52 The New Zealand Court of Appeal held in that case that, generally, the word “enactment” is a convenient and succinct term embracing any Act or rules or regulations made thereunder and any provision thereof. In the absence of some “good reason”, the then President Cooke would not accept that the term should be given a restrictive interpretation to refer only to an Act or any provision of an Act. This position must be tempered, however, by the fact that this decision was made prior to the Interpretation Act 1999. At that time, the Acts Interpretation Act 1924 was in force, which only defined the term “Act”, whereas the current Interpretation Act defines the term “enactment”.
In favour of a restrictive interpretation (excluding regulations from the meaning of enactments under section 4), it is posited that one needs to start with consideration of the general rule of statutory interpretation that an Act of Parliament has primacy over subordinate legislation so that, if there is a conflict between an Act and a regulation, the regulation must give way.53 If that is correct, it should follow that where there is a conflict between the
50 John Burrows, Statute Law in New Zealand, (3rd ed, LexisNexis, 2003), 259. The question of regulations being ultra vires through application of the New Zealand Bill of Rights Act 1990 is discussed later in this section of the chapter.
51 John Burrows, Statute Law in New Zealand, (2nd ed, Butterworths, 1999), 337.
52 Black v Fulcher [1988] 1 NZLR 417.
53 See dictum of Lord Herschell in Institute of Patent Agents v Lockwood [1894] UKLawRpAC 38; [1894] AC 347, 360 - followed by Stout CJ and Adams J in Lee v Macpherson (No 1) [1923] NZGazLawRp 10; [1923] NZLR 1296, 1304.
NZBORA and an item of subordinate legislation, then section 4 cannot save the subordinate legislation and the Bill of Rights will prevail.
The next point to note is Justice Henry’s consideration of the term “enactments”, as used in the Third Schedule of the Transport Amendment Act (No 2) 1963, in the case of Munro v Auckland City.54 In that case, Justice Henry concluded that:55
...the word ‘enactments’ does not include the Act and the regulations which are described in the first column of Part IV. The word ‘enactments’ is of narrower import and should not be extended to mean the whole Act and regulations unless the context so requires.
Considering the constitutional importance of the Bill of Rights Act, and the purposive approach adopted by the judiciary in the application of the Act, it is suggested that this context does not require the word to be given a broad interpretation so as to allow delegates to legislate inconsistently with the rights and freedoms guaranteed under the Bill of Rights Act.
Regard might also be had to Hansard. At its second reading, the Bill of Rights Bill was presented before the House with a new “Clause 3A” inserted (now section 4 of the Act). During the debates of the second reading, Attorney-General Paul East discussed the motives of this new provision.56 The purpose of the clause was said to protect Parliament’s role of making law.57 While the original Bill was introduced as supreme legislation, clause 3A was added to do away with this so that Parliament was not prevented from effecting changes to human rights aspects of the law if it felt it should do so in the future. However, the Parliamentary debates did not focus on a delegate’s power to make subordinate legislation. Similarly, the specific wording of the clause (“pass” versus “made” and “repeal” versus “revoke”) was a product of Select Committee recommendations and the distinctions alluded to by Professor Burrows were not contemplated by Parliament in its debates.
Furthermore, section 7 of the Bill of Rights itself points to the adoption of a restrictive interpretation of the term “enactments” so that it refers to Acts of Parliament alone. The NZBORA is an ordinary statute, giving
54 Munro v Auckland City [1967] NZHC 30; [1967] NZLR 873. Again, this decision was made prior to the enactment of the Interpretation Act 1999.
55 Ibid, 874.
56 New Zealand, New Zealand Parliamentary Debates, No 19, 3460, 14 August 1990.
57 This was clearly a concern of various members of Parliament, as evident in their debates on the Bill of Rights Bill. See New Zealand, New Zealand Parliamentary Debates, No 62,
13038, 10 October 1989 (introduction); New Zealand, New Zealand Parliamentary Debates, No 19, 3460, 14 August 1990 (second reading); and New Zealand, New Zealand
Parliamentary Debates, No 20, 3759, 21 August 1990 (third reading).
Parliament the freedom to legislate inconsistently with its provisions. However, section 7 of the Act makes this power conditional in that it requires the Attorney-General to bring to the attention of the House of Representatives any provision in a Bill which appears to be inconsistent with the rights and freedoms guaranteed in the Bill of Rights Act. By doing so, Parliamentary supremacy58 is still preserved since the final decision as to whether to contravene any right or freedom is left with Parliament, New Zealand’s elected officials. It is in this context of limiting fundamental rights that the importance of section 7 can be seen. On a political level, section 7 brings any potential contravention of the Bill of Rights Act by any Bill before the House out into the open and forces Parliament to make a conscious decision on whether to limit any right or freedom. Therefore, Parliament’s legislative powers are well monitored to protect our fundamental freedoms.
The Regulations (Disallowance) Act now require all regulations to be laid before the House of Representatives, including regulations made under the United Nations Act 1946.59 The House may then, by resolution, disallow any regulations or provisions of regulations or amend or substitute any regulations.60 The Disallowance Act does not provide for any reporting procedure relating to apparent contraventions of the Bill of Rights Act, as section 7 of the NZBORA does in respect of Parliamentary Bills. Nevertheless, since January 1995, all draft regulations submitted to Cabinet for approval must be accompanied by a specified cover sheet.61 The cover sheet is based on that used for draft Bills and is designed to ensure that Cabinet has due regard to a number of factors prior to approval of such regulations. Item 4(a) of the cover sheet requires the submitting Minister to indicate whether the regulations comply with the Bill of Rights Act.62 It therefore appears that the abrogation of human rights by a delegate of legislative power is guarded against to some extent, although the extent to
58 The protection of which is the aim of section 4: see David Paccioco, “The New Zealand Bill of Rights Act 1990: Curial Cures for a Debilitated Bill” [1990] New Zealand Law Review 353, 355.
59 Regulations under the United Nations Act 1946 are made by the Governor-General in Council: see section 2(1) of that Act. “Regulations” within the jurisdiction of the
Regulations (Disallowance) Act 1989 include regulations made by the Governor-General in Council: see section 2(a)(i) of that Act.
60 See sections 5 and 9 of the Regulations (Disallowance) Act 1989.
61 See Cabinet Office circular “Procedures for Regulations Made by Order in Council” of 13 December 1994 CO(94)17; and Cabinet Office circular “Revised Procedures for regulations
made by Order in Council” of 6 April 1995 CO(95)5.
62 See Cabinet Office circular “Revised Procedures for Regulations Made by Order in Council” of 6 April 1995 CO(95)5, Appendix 2.
which the Regulations Review Committee is able to consider potential conflicts (having regard to time and resources) is debateable.
Notwithstanding the author’s position that the term “enactments” might be given a restrictive interpretation for the purpose of section 4 (to exclude subordinate legislation), the practical approach taken by the New Zealand Court of Appeal in Drew v Attorney-General does away with the need to determine the issue.63 Facing a charge of using heroin without the authority of a medical officer, Drew (a prison inmate) was heard by the deputy superintendent of the prison, who found the charge against him proved. On appeal to the Visiting Justice, Drew was refused permission to be represented by a lawyer at the hearing (in accordance with regulation 144 of the Penal Institutions Regulations 1999) and the Visiting Justice also found the case proved. The question before the Court of Appeal was whether Drew had the right to legal representation in prison disciplinary hearings and whether regulation 144 (made under the empowering provision of section 45(1) of the Penal Institutions Act 1954) properly did away with the right to representation. Although the Court concluded that regulation 144 was an “enactment”, it held that the regulation was not protected by section 4 of the Bill of Rights Act. Instead, the Court focussed on the issue of interpreting the empowering provision in a manner consist with the NZBORA so to exclude the possibility of making regulations made under the empowering provision in conflict with the Bill of Rights:64
It is therefore not really necessary to respond to Mr Butler’s argument that the regulations in question are protected by s4 of the Bill of Rights... Counsel was correct, of course, when he said that a regulation is an “enactment.” Section 29 of the Interpretation Act 1999 confirms that position. But the answer to counsel’s argument is that, in striking down the regulations because they are ultra vires the empowering section (s45), the Court is not doing so only because they are inconsistent with the Bill of Rights. To the extent that it is necessary to refer to the Bill of Rights, the regulation is invalid because the empowering provision, read, just like any other section, in accordance with s6 of the Bill of Rights, does not authorise the regulation. The Court merely gives s45 a meaning that is consistent with the rights and freedoms contained in the Bill of Rights. In accordance with s6, that meaning is to be preferred to any other meaning. As Mr Wilding said, s4 is not reached.
Thus, the conclusion is this: the arguments in favour of adopting a broad interpretation of the term “enactments”, to include subordinate legislation, appear to be dominant. There are, at least in theory and in the writer’s
63 Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58.
64 Ibid, 73 (para 68).
opinion, considerable problems with that position. Ultimately, however, those problems are mollified by the approach of applying section 6 of the NZBORA to the empowering provision of an Act. In doing so, regulations made under the authority of the empowering provision, so as not to be ultra vires, must be made consistently with the NZBORA.
The question of “enactments” and the potential for empowering provisions to allow the making of regulations inconsistent with the Bill of Rights is examined further in chapter 11, in the context of regulations made under the United Nations Act 1946.
Conclusion
New Zealand’s civil and political rights framework is established primarily through its party status to the International Covenant on Civil and Political Rights and, on a municipal level, through the New Zealand Bill of Rights Act 1990. Various implications arise through those instruments, from the impact of them upon statutory interpretation, to maters of reporting and the provision of effective remedies for breaches of human rights. The primary focus of this chapter has been upon the application of the Bill of Rights, not in any particular context, but in the abstract sense.
The application of the New Zealand Bill of Rights is a difficult enterprise. The operative provisions of the Act call for an intricate methodology to be adopted in the examination of any perceived conflict between an enactment and the Bill of Rights. This chapter has chosen to adopt the methodology explained by Rishworth and others, applying sections 4, 5 and 6 through a four-step process. It has been posited that, in the case of regulations, the question of whether regulations are “enactments” within the meaning of sections 4 and 6 is not so important. The enquiry to be made is whether the regulations have been made in a manner that is consistent with the Bill of Rights so that they are not ultra vires the empowering provision (by application of section 6 of the NZBORA).
Chapter 9
Limiting Rights under New Zealand Law
This is not a text about limiting rights. It is one concerning the promotion and protection of human rights while countering terrorism, and the means by which human rights compliance may be achieved. The text to this point has identified, however, that human rights law is flexible and capable of adapting to challenges such as the maintenance of security and the countering of terrorism. Chapter 7 has identified, at a level applicable to all States, a series of steps by which proposed or actual counter-terrorism measures can be assessed to determine whether they comply with human rights obligations. The Guide discussed in that chapter identifies that different forms of restrictions upon the unlimited enjoyment of human rights are permissible, depending upon the source, content and nature of the substantive right. This chapter draws from this position and, against the background of the preceding chapter on civil and political rights in New Zealand, identifies and discusses applicable models of rights limitation.
In an article by Dr Andrew Butler in 2002, concerning the limitation of rights, Dr Butler speaks of two means by which human rights may be limited: definitional and ad hoc.1 If one undertakes a broader examination of human rights law, including the New Zealand’s Bill of Rights Act 1990 and the Privacy Act 1993, two further ‘mechanisms’ for rights limitations can be seen: that of rights-specific limitations; and repeal. This chapter considers each mode of limitation, at both the international and domestic level, although primarily focussing upon the position in New Zealand, and reflects upon counter-terrorism as an objective which might justify such limitations.
Limitations through Ordinary Repeal
Often overlooked is the fact that some rights, depending upon their source or means of implementation, are more vulnerable than others. Vulnerable,
1 Andrew Butler, “Limiting Rights”, (2002) 33 Victoria University of Wellington Law Review 537, 541-544. This appears to have formed the basis of chapter 6 of Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act. A Commentary (Wellington: LexisNexis, 2005).
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
that is, to Parliamentary sovereignty without the benefit of the mechanisms of interpretation and application under sections 4, 5 and 6 of the New Zealand Bill of Rights Act 1990 (NZBORA).2 This is the case with rights reflected solely within the common law and, in a more particular context, the Privacy Principles under the Privacy Act 1993.
Rights under the Common Law
Reflected within sections 2 (entitled “rights affirmed”) and 28 (“other rights not affected”) of the NZBORA is the fact that human rights do not necessarily rely upon statutory recognition. Where common law rights have been codified within the Bill of Rights, then limitation of those rights is subject to the three means of limitation to be discussed after this part of the chapter (definitional; rights-specific; and general). What is of concern here are rights (or aspects of them) that are recognised under the common law only.
Existing quite independently of New Zealand’s human rights legislation and corresponding international obligations, for example, is the long-held common law privilege against self-incrimination and the right to be presumed innocent. The right to be presumed innocent until proven guilty is exercised through the burden upon the State throughout all stages of the criminal process, from investigation to conviction. For example, an accused person has no obligation to give evidence at trial, nor to disprove any allegation against him or her. This has been held to be so even where the only person in possession of information relevant to the elements of an offence is the accused.3 The common law privilege against self- incrimination is intimately linked with the presumption of innocence, exercisable through the right to silence. No person may be compelled to say or do anything that might incriminate him or her.4 The New Zealand Court of Appeal has held that the privilege against self-determination is not limited to testimony and discovery in judicial proceedings. The Court held, in Taylor v New Zealand Poultry Board, that this privilege was capable of
2 See, infra, chapter 8.
3 See Attygale v R [1936] 2 All ER 116 (PC). Here, the accused was charged in respect of an
illegal operation performed on a woman while she was under chloroform. The defence case was that no operation took place. The trial judge directed the jury that, the facts being specifically within the knowledge of the accused, the burden of proving the absence of any operation was upon the accused. On appeal, the Privy Council held that the direction was an incorrect statement of the law, and that the onus of proof to establish that there had been an operation remained with the prosecution.
4 See Rice v Connolly [1966] 2 All ER 649 (Queen’s Bench Division), applied in Waaka v Police [1987] NZCA 69; [1987] 1 NZLR 754 (CA).
applying outside court proceedings when the obligation to answer questions, or give information, or to provide or disclose documents, was imposed by statute.5
The combined affect of the privilege against self-incrimination and the presumption of innocence is that a person cannot be compelled to assist in the investigation and prosecution of any offence against him or her by being required to make any statement or provide any information (documentary or otherwise). A question to be considered in chapter 18 is what affect this has upon the operation of new powers of questioning under section 198B of the Summary Proceedings Act 1957.
Since Parliament is sovereign, the normal interaction between common law and statute is that Acts of Parliament prevail over the common law. As summarised by Professor Philip Joseph, “Parliament’s words can be neither judicially invalidated nor controlled by earlier enactment”.6 Prima facie, then, the common law privilege against self-incrimination and the presumption of innocence have no impact upon section 198B. As Joseph himself discusses, however, the courts have taken a guarded approach when Parliament has attempted to restrict the role of the judiciary or take away the rights of citizens.7 In the case of New Zealand Drivers’ Association v New Zealand Road Carriers, Justices Cooke, McMullin and Ongley noted:8
We have reservations as to the extent to which in New Zealand even an Act of Parliament can take away the rights of citizens to resort to the ordinary courts of law for the determination of their rights.
More strongly worded, Justice Cooke later posited that “some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them”.9 Despite the apparent strength of those statements, however, no New Zealand court has invalidated or refused to apply a statutory provision on the basis that it encroaches upon common law rights.
It is at this point that further discussion of Taylor v New Zealand Poultry Board is called for, the case having similarities with the issue at hand.10 Taylor concerned the operation of regulation 57(3) of the Poultry
5 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA), 401.
6 Philip Joseph, Constitutional and Administrative Law in New Zealand, (2nd ed, Brookers, 2001), 461.
7 Joseph, ibid, 485-495.
8 New Zealand Drivers’ Association v New Zealand Road Carriers [1982] 1 NZLR 374 (CA), 390.
9 Fraser v State Services Commission [1984] 1 NZLR 116 (CA), 121. See also Taylor v New Zealand Poultry Board (n 5) 398.
Board Regulations which, like section 198B of the Summary Proceedings Act, required a person to provide information to prescribed officers.11 Taylor was a poultry farmer who refused to answer questions properly asked under regulation 57(3) and he was subsequently convicted on three charges under regulation 57(4).12 Notwithstanding the fact that the Court of Appeal held that the privilege against self-incrimination was capable of applying outside court proceedings, it qualified this decision by stating that the scope of the privilege must be determined in the context of the particular statute being examined. Adopting the words of the Select Committee when reporting on the Counter-Terrorism Bill, the privilege against self-incrimination “is a question of its construction”.13 For the Court of Appeal, Cooke J stated:14
The common law favours the liberty of the citizen, and, if a Court is not satisfied that a statutory power of questioning was meant to exclude the privilege, it is in accordance with the spirit of the common to allow the privilege [emphasis added].
In a recent case concerning legal professional privilege in New Zealand, the Privy Council considered the question of statutory provisions overriding or excluding the privilege. The question before it was whether the Law Practitioners Act 1982 excluded legal professional privilege either expressly or “by necessary implication”.15 The Privy Council held that a necessary implication was one which the express language of the statute clearly showed must have been included.16 In considering the issue, reference was made to Lord Hobhouse’s explanation in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax:17
A necessary implication is not the same as a reasonable implication... A necessary [original emphasis] implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for
10 Taylor v New Zealand Poultry Board (n 5).
11 The Poultry Board Regulations 1980 were made pursuant to an empowering provision in the Poultry Board Act 1980 (section 24(1)).
12 Regulation 57(4) of the Poultry Board Regulations 1980 made it an offence to refuse to
answer any enquiries made under regulation 57(3).
13 Foreign Affairs, Defence and Trade Committee, Report on the Counter-Terrorism Bill, A Government Bill, 27-2, Commentary, presented to the House 8 August 2003, 10.
14 Taylor v New Zealand Poultry Board (n 5) 402.
15 B v Auckland District Law Society [2003] UKPC 38; [2004] 1 NZLR 326 (PC).
16 B v Auckland District Law Society, ibid, 349.
17 B v Auckland District Law Society, ibid, 349. See R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] WLR 1299 (HL), para 45.
Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.
Privacy Principles
The right to privacy is a matter addressed within the International Covenant on Civil and Political Rights (ICCPR),18 but is outside the ambit of the NZBORA. Instead, it protection under the Privacy Act 1993.
Privacy, says Professor Emanuel Gross, is a deeply rooted value in human culture comprising the right of the individual to be left alone, the right of the individual to have control over the dissemination of information about him or her and the access to his or her person and home, and the right to be protected against the unwanted access of the public to the individual.19 Notwithstanding the importance of the right to privacy Professor Gross argues that, from both a legal and moral perspective, interference with privacy in pursuit of national security (which must include counter- terrorism) is permissible:20
Contrary to privacy, absolute security is the utopian idea, and therefore “national security” as a whole is worthy of legal protection in the sense that the state has the duty and the right to protect itself and the persons who are located within its borders against security threats.
Under the ICCPR, privacy is a matter addressed in Article 17:
18 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
19 Emanuel Gross, ‘The Struggle of a Democracy Against Terrorism. Protection of Human
Rights: The Right to Privacy Versus the National Interest – the Proper Balance’ (2004) 37(1) Cornell International Law Journal 27, 31.
20 Ibid, 35.
As far as the ICCPR is concerned, then, the State is obliged to both desist from interfering with privacy, as well as to legislate in a way that protects the right to privacy (from both State authorities and natural persons).21 The protection of privacy is, however, a necessarily relative matter as a result of the fact that all persons live in a society.22 The Human Rights Committee has pointed out that the term “unlawful” within paragraph 1 of Article 17 means that an authorisation to interfere with privacy must be established by law, so long as this does not establish an arbitrary authority.23
In contrast to the International Covenant, the privacy principles under the Privacy Act 1993 is weaker in its protection of the privacy of New Zealanders. Through the application of general principles of statutory interpretation, the impact of the Act is limited to governing the collection of “personal information”24 where this occurs outside a statutory authority to do so. Where a statute specifically authorises the collection (or interception) of personal information, then the rules of ‘reconciliation’, ‘implied repeal’, and generalia specialibus non derogant mean that (unless the statute can be interpreted in a manner that is consistent with the Privacy Act) the statutory provision remains unaffected by the Privacy Act.25
The strength of the Privacy Act is in regulating an agency (such as a hospital or university) in its collection and storage of personal information. In that case, that the agency must comply with the twelve privacy principles set out in section 6 of the Privacy Act. Of particular importance, privacy principle 5 prohibits the collection of personal information by unlawful means or in a manner that is unfair or unreasonably intrudes upon the personal affairs of an individual.
21 United Nations Human Rights Committee, General Comment No 6, Article 17, UN Doc HRI/GEN/1/Rev.1 (1988), paras 1 and 9.
22 Ibid, para 7.
23 Ibid, para 3. See, for discussion, Alex Conte, Scott Davidson and Richard Burchill, Defining Civil and Political Rights. The Jurisprudence of the United Nations Human Rights Committee (London: Ashgate Publishing Ltd, 2004), 147.
24 Defined by the Privacy Act 1993, section 2, as information about an identifiable individual.
25 Reconciliation reflects the aim of the courts to find a construction of two conflicting
statutory provisions that reconciles that inconsistency and allows the provisions to stand together. Implied repeal results in a statute later in time impliedly repealing an earlier and totally inconsistent statute. Generalis specialibus non derogant means that an earlier, more specific, statutory provision prevails over a later, general statutory provision. See John Burrows, Statute Law in New Zealand (3rd ed, LexisNexis, 2003), 308-317.
Interference with privacy under New Zealand law is thus only permissible to the extent that such interference either complies with the information privacy principles (section 6 of the Privacy Act), or is expressly authorised under an enactment which prevails by application of the principles of implied repeal and generalia specialibus non derogant. To comply with the ICCPR and the international standards on counter- terrorism and human rights, however, legislative authorisations to interfere with privacy must: (1) not permit arbitrary interference; (2) protect the individual against arbitrary or unlawful interference; and (3) be reasonable and proportional. The implications of these gaps in protection will be considered in the examination of the tracking device regime established under the legislative package which began as the Counter-Terrorism Bill 2003.26
Definitional Limitations
Definitional limitations involve the first mode of limitation reliant upon the expression of a right or freedom in a particular instrument. At the international level, the example of the right to a fair hearing has already been given.27 The right to a fair and open hearing under Article 14 of the ICCPR does not provide a person with the right to a hearing which favours the person in all respects. Rather, it guarantees that a person be afforded a ‘fair’ and open hearing, Article 14(1) stating:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law...” [emphasis added].
A counter-terrorist measure imposing limitations upon the disclosure of information, based upon the need to protect classified security information, might for example be ‘fair’ if the person’s counsel (with appropriate security clearance) is permitted access to the information. This proposition is examined in chapter 15, in the context of judicial proceedings arising out of New Zealand’s terrorist designation process.
An example of definitional limitations can also be seen in the New Zealand Bill of Rights Act 1990. Section 21 of the Act, for instance, provides every person with the right to be secure against unreasonable
26 See, infra, chapter 17.
27 See, infra, chapter 7.
search or seizure, whether of the person, property, or correspondence or otherwise. The right does not prevent all search and seizure, but only those that are “unreasonable”.
Rights-Specific Limitations
The third mode of limitation is neither definitional nor general. It instead involves provisions which sets out the means by which a particular right, or related set of rights, may be limited. This is particularly common at the international level. Again focussing upon the right to a fair hearing under Article 14 of the ICCPR, for example, it has been seen that the first two sentences of Article 14(1) express the substance of the right. The next sentence then sets out the circumstances in which it is permissible to limit the right to an ‘open’ hearing, allowing the exclusion of the press for reasons of morals, public order, or national security.28
Although less common at the domestic level, this approach is also evidence in the New Zealand Bill of Rights Act. The prohibition against discrimination, under section 19 of the Act, gives an example of this:
(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.
Thus, sub-section (1) sets out the general expression of the right, while subsection (2) provides for the exception of affirmative action.
General Limitations Provisions
Described by Butler as “ad hoc” limitations, the final means by which rights may be limited – common to both international and domestic human rights instruments – are stand-alone provisions which provide for limitations in a much more general sense. That is, they are not confined to
28 The third sentence of the International Covenant on Civil and Political Rights, Article 14(1), provides: “The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would
the expression of the right, nor to any subsequent rights-specific limitations clause.
At the international level, consideration has already been given to the mechanism by which States parties to the ICCPR may derogate from certain rights during a state of emergency threatening the life of the nation. Given the discussion already provided on this point in chapter 7, this point is taken no further here, except to recognise that comparable provisions exist in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the American Convention on Human Rights.29
Common to New Zealand and Canada, the NZBORA and Canadian Charter of Rights and Freedoms, provide a domestic mechanism of general application to the limitation of rights. Section 5 of the Bill of Rights, which was based directly upon the equivalent provision in section 1 of the Canadian Charter, reads:
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
This limitation provision is equally application to discriminatory conduct on the part of the State, through section 20L of the Human Rights Act 1993:30
(1) An act or omission in relation to which this Part applies (including an enactment) is in breach of this Part if it is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990.
(2) For the purposes of subsection (1), an act or omission is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990 if the act or omission–
(a) limits the right to freedom from discrimination affirmed by that section; and
(b) is not, under section 5 of the New Zealand Bill of Rights Act 1990, a justified limitation on that right.
(3) To avoid doubt, subsections (1) and (2) apply in relation to an act or omission even if it is authorised or required by an enactment.
prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”.
29 (European) Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September
1953) Article 15; and American Convention on Human Rights, 1144 UNTS 123 (entered
into force 18 July 1978) Article 27(1).
30 This part of the Act was inserted by the Human Rights Amendment Act 2001.
Preliminary Matters in the Application of section 5
In discussing the application of section 5 of the NZBORA, three preliminary points need to be made.
First, section 5 allows limits “...as can be demonstrably justified...” in a free and democratic society. The question is: demonstrated by whom? The short answer is that the onus of proof rests on the party seeking to uphold the limitation.
Once the complainant of a NZBORA breach has established the existence of a prima facie rights violation (including the extent of any internal modification required), the onus of proving that the breach is justified under section 5 is placed on the party relying on section 5. This was held to be so by the Supreme Court of Canada in Re Southam (No 1).31 The New Zealand Court of Appeal has taken the same view, stating that it is for the party seeking reliance on section 5 to advance the argument that limits on rights are reasonable.32 In Solicitor-General v Radio New Zealand Ltd, the onus of proof was again said to lie with the party relying on section
5.33 The Court added that the standard of proof is the civil standard of the balance of probability but that must be applied rigorously, consistent with
the requirement that the restriction be demonstrably justified.34
The result of this burden and standard of proof upon the State to justify limits it places upon rights contributes to the transparency of rights limitations and what might be described as a culture of justification.
The reference in section 5 to “...reasonable limits...” means that the ‘limitations’ must be limitations and not more than that. This might seem to be a trite observation, but it has never been considered in New Zealand, although there is law on the point in Canada.
31 Re Southam (No 1) [1983] 41 OR (2d) 113, 124.
32 Noort v MOT; Curran v Police [1992] NZCA 51; [1992] 3 NZLR 260, 271 and 283.
33 Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48. Note that the position regarding the standard of proof is not as clear in Canada: see KIS Films Inc v Vancouver
(1992) CRR (2d) 98, 113-114.
34 Ibid, 61. Consider also Butler’s examination of the “intensity of review” in the application of section 5 (n 1) 561-564.
Canadian case law has drawn a distinction between “limits” and “exceptions”. In Attorney General of Quebec v Quebec Association of Protestant School Boards, the rule of non-justifiability was set out.35 In that case, section 72 of the Charter of the French Language (Bill 101) restricted the teaching of English. The Supreme Court held that this restriction amounted to an “exception” to a provision of the Charter of Rights. The Court stated that a prescription of law cannot create an exception to a provision of the Charter of Rights, nor can it purport to amend any provision thereof. It held that if a prescription collides directly with a provision of the Charter so as to negate it in whole, that prescription is not a “limit” capable of justification.36
The latter case was considered in Ford v Quebec (Attorney General) where the Supreme Court examined the distinction between “limits” and “exclusions” in more detail.37 The Court started by describing the Quebec Association of Protestant School Boards case as a “rare case of a truly complete denial of a guaranteed right or freedom” and, in doing so, recognised that most (if not all) legislative qualifications of a right or freedom will amount to a denial of the right or freedom to that limited extent.38 On the other hand, it said, a limit that permits no exercise of a guaranteed right or freedom in a limited area of its potential exercise is not justifiable.39
To comply with this requirement, any limitation under an enactment must therefore not entirely exclude a right or freedom, although it may be rare to find a legislative provision that has such a strong effect, although section 4 of the NZBORA would act to ‘save’ the provision.
The wording of section 5 clearly requires any limitation to be “prescribed by law”. This expression was considered by the European Court of Human Rights in the Sunday Times Case, where the Court concluded that two requirements flowed from the expression:40
(a) the law must be adequately accessible so that the citizen has an adequate indication of how “the law” limits his or her rights; and
35 Attorney General of Quebec v Quebec Association of Protestant School Boards [1984] 2 SCR 66.
36 Ibid, 87.
37 Ford v Quebec (Attorney General) [1988] 2 SCR 712.
38 Ibid, 773.
39 Ibid, 773-774.
40 Sunday Times v United Kingdom [1979] ECHR 1; (1978) 58 ILR 491, 524-527.
(b) the law must be formulated with sufficient precision so that the citizen can regulate his or her conduct.
The Sunday Times requirements were accepted and applied in New Zealand by the Indecent Publications Tribunal in Re “Penthouse (US)” Vol 19 No 5 and others.41 The test was later reaffirmed by the European Court in the case of Silver v UK.42 Putting this test into a practical perspective, Le Dain J of the Supreme Court of Canada said that this included common law rules, statutes and regulations.43 This consideration of the expression “prescribed by law” was approved by the NZCA in MOT v Noort; Police v Curran.44
In Canada it has also been held that the “operating requirements” of a statute amount to a prescription by law. The term “operating requirements” refers to those limits on rights which are not expressed in a statute, nor implied, but which simply arise as a result of the practical operation of the enactment in the manner in which it was designed to operate. In R v Therens, a case concerning blood/breath alcohol legislation, it was held that the operating requirements of the Canadian statute meant that full opportunity to consult and instruct a lawyer was not possible, and that telephone access within a reasonable time only could be permitted.45 In a very similar context, the New Zealand Court of Appeal in MOT v Noort; Police v Curran adopted this approach, holding that limits on rights resulting from the “operating requirements” of the Land Transport Act 1962 would constitute limits which were “prescribed by law”. The Court also noted that the concept of discerning “operating requirements” is to be seen in New Zealand as part of the interpretation process.46
Notably, the second limb of the Sunday Times test (regarding the precise formulation of any limitation) has been applied to strike down powers or discretions that are so broad as to be considered “unfettered”. In Ontario Film and Video Appreciation Society, for example, the Ontario
41 Re “Penthouse (US)” Vol 19 No 5 and others [1991] NZIndPubT 4; 1 NZBORR 429.
42 Silver v UK [1983] ECHR 5; [1983] 5 EHRR 347.
43 R v Thomsen (1988) 63 CR (3d) 1, 10. Regulations were also held to be satisfactory by the Supreme Court of Canada in R v Therens [1985] 1 SCR 613. Application of the Sunday
Times test can be seen in Re “Penthouse (US)” Vol 19 No 5 and others[1991] NZIndPubT 4; , 1 NZBORR 429, where the Indecent Publications Tribunal of New Zealand held that policies based on statutory criteria satisfy the test. The European Court in Silver v UK (ibid) found that while the Prison Act and Prison Rules (UK) met the criterion of adequate accessibility, unpublished orders and instructions did not.
44 Noort v MOT; Curran v Police (n 32) 272 and 283.
45 R v Therens [1985] 1 SCR 613.
46 Noort v MOT; Curran v Police (n 32) 283 (per Richardson J).
Court of Appeal held that a statute authorising film censorship failed to meet the requirements of a limitation “prescribed by law” because the censor board was given an unfettered discretion to ban or cut films.47
The Substantive Test under section 5
The substance of section 5 requires any limitation upon rights to be “...demonstrably justified in a free and democratic society”. To determine this issue, Canadian and New Zealand Courts have developed similar principles. The relevant authorities were discussed by a Full Court of the High Court in Solicitor-General v Radio New Zealand Ltd.48 It was stated there that the starting point in applying the substantive test is R v Oakes where a detailed test was set out by the Supreme Court of Canada.49 In an early formulation of the applicable test, the Supreme Court said that a limit will be reasonable and demonstrably justified in a free and democratic society if:50
(i) the objective sought to be achieved by the limitation at hand must relate to concerns which are pressing and substantial in a free and democratic society; and
(ii) the means utilised must be proportional or appropriate to the objective. In this connection there are three aspects:
Soon after Oakes, the Supreme Court restated the test to ask whether the provision being examined infringed a protected right or freedom “as little as reasonably possible” (rather than as little as possible).51 Interestingly,
47 Ontario Film and Video Appreciation Society [1984] 45 OR (2d) 80.
48 Solicitor-General v Radio New Zealand Ltd (n 33).
49 R v Oakes (1986) 26 DLR (4th) 200.
50 That decision was later affirmed and followed by the Supreme Court of Canada in Irwin Toy Ltd v Quebec (Attorney-General) (1989) 58 DLR (4th) 577 and Re A Reference re Public Service Employee Relations Act [1987] 1 SCR 313, 373-374. The latter case was
referred to with approval by the New Zealand Court of Appeal in MOT v Noort; Police v Curran (n 32) 283. However, cases have moved away from requiring limitations to impair rights “as little as possible” (requirement (2) of the proportionality test) to a more flexible test of “as little as reasonably possible”.
51 R v Edwards Books & Art Limited [1986] 2 SCR 713, 772 (per Dickson CJ).
although the New Zealand High Court in SG v Radio NZ Ltd has adopted a rephrased version of the Oakes test slightly, it retained the phrase “as little as possible” rather than “as little as reasonably possible”:52
...To establish that the limit is both reasonable and demonstrably justified in a free and a democratic society the law creating the limit on the right of freedom must have an objective of sufficient importance to warrant overriding a constitutionally protected right or freedom.
...The means chosen by the law to achieve the objective must be proportional and appropriate to be objective.
...To meet the requirement of the proportionality test there are three components. First, the limiting measures or the law must be designed to achieve the objective not being arbitrary, unfair or based on irrational considerations. This is described as being rationally connected to the objective. Second, the measures or the law should impair as little as possible the right or freedom. Third, there must be a proportionality between the effects of the measures or the law responsible for limiting the right or freedom and the objective. The law which restricts the right must not be so severe or so broad in application as to outweigh the objective. [emphasis added]
A point of distinction needs to be made when talking of impairing rights as little as possible. In the context of the current subject of limitations under section 5, and applying the Radio NZ case, a limitation will be proportionate if (with the other two components) it impairs the right or freedom “as little as possible”. In the context of the overall application of sections 4, 5 and 6, however, Andrew Butler properly talks about section 6 only demanding that the courts apply a meaning which “least reasonably limits” the NZBORA.53 Why the difference in terminology (as little as possible versus least reasonably possible)? The point to make is that the expressions are entirely compatible with each other, since the first relates to the application of section 5 and the second relates to the application of section 6. In the latter situation, Butler’s point concerns the use of section 6 to determine what meaning to give an enactment - section 6 requiring that
52 Solicitor-General v Radio New Zealand Ltd (n 33) 60-61. This was subsequently cited with approval in Duff v Communicado Ltd [1996] 2 NZLR 89. Note that in MOT v Noort; Police v Curran (n 32) 283, Richardson J said: “It is worth emphasising too that in principle an abridging inquiry under section 5 will properly involve consideration of all economic, administrative and social implications. In the end it is a matter of weighing (1) the significance in the particular case of the values underlying the Bill of Rights; (2) the importance in the public interest of the intrusion on the particular right protected by the Bill of Rights; (3) the limit sought to be placed on the application of the Bill provision in the particular case; and (4) the effectiveness of the intrusion in protecting the interests put forward to justify those limits.”
53 Butler (n 1) 577.
“a meaning consistent with the rights and freedoms contained in this Bill of Rights... shall be preferred”. He clarifies that this does not demand an interpretation of enactments that favours rights in their absolute form.54 Rather, he says:
Because section 5 NZBORA is a step in the process which needs must precede the determination of a binding interpretation of the other enactment, section 6 can only demand the courts to interpret statutes subject to reasonable limits, not subject to the least possible limit that is linguistically available. [underlined emphasis added]
His analysis, it is posited, is both entirely correct and consistent with the Radio NZ description of the proportionality test. Butler is saying that section 5 (the reasonable limitations test) must be applied prior to determining what interpretation to favour under section 6. Radio NZ directs that in determining what amounts to a reasonable limit, the limitation must (to be proportional) limit the right as little as possible.
What should also be noted about the substantive application of section 5 and the tests described is that, as recognised by Justice Richardson in Noort and Curran,55 they involve public policy analysis and value judgments on the part of the judiciary. In terms of the second, proportionality, limb of the test, it should also be noted that the wording of section 5 permits limitations that are “demonstrably justified”, rather than a more restrictive expression of limitations “necessary” to achieve certain objectives.56 That the wording of section 5 thus permits a broader scope of restrictions, as has been recognised by both the High Court and Court of Appeal.57 The greater flexibility of expressions such as “reasonable” versus “necessary” was also recognised by the European Court of Human Rights in the Sunday Times Case.58 It appears that these issues were anticipated in the White Paper on the Bill of Rights:59
In a great many cases where controversial issues arise for determination, there is no ‘right’ answer. The action taken by the Government of the day will depend upon its own political persuasions, and its assessment as to where the balance of the public interest lies. It is the very essence of democracy that it
54 A fear that had been expressed by Hardie Boys J in MOT v Noort; Police v Curran (n 32) 287.
55 Ibid, 283.
56 As in Article 4(1) of the International Covenant on Civil and Political Rights.
57 See Solicitor-General v Radio New Zealand Ltd (n 33) 62-63 and TVNZ v Quinn [1996] 3 NZLR 23, 58 (Court of Appeal).
58 MOT v Noort; Police v Curran (n 32) 275.
59 New Zealand Department of Justice, A Bill of Rights for New Zealand - A White Paper
(Government Printer, Wellington, 1985), 45.
allows for people to hold differing views on controversial issues, and for the democratically elected Government of the day to adopt a standpoint thereon but for which of course it must take responsibility in the normal way at the next election. The basis test stated in Article 3 [now section 5 of the Act] means that in most cases the courts will leave it to Parliament to define the public interest, and to enact legislation encapsulating its decision. [emphasis added]
The general provision under section 5 allowing reasonable limitations upon human rights is by no means a simple one, as evident through what has been a reasonably lengthy (albeit basic) overview of the provision. From this entirely abstract consideration of section 5, the following can be said of its composite requirements:
60 See, infra, chapter 8.
Counter-Terrorism and section 5
The first part of the substantive test under section 5, under both Oakes and Solicitor-General v Radio NZ, requires that the objective of any measure creating limits upon rights and freedoms must be sufficiently important in a free and democratic society. Parallels can be drawn, here, to the Guide on Human Rights Compliance considered in chapter 7. In particular, Part 2, step 3, of the Guide identified that if a counter-terrorism measure is to be capable of limiting rights it must be necessary and in pursuit of a pressing objective. It was explained, there, that although counter-terrorism (in abstract) is important, regard will need to be had to the particular counter- terrorist objective being achieved by the measure, its effectiveness, and its link to other factors such as its contribution to the international framework on counter-terrorism.
The second part of the substantive test under section 5 requires proportionality between the objective of the measure and the limit imposed upon the right or freedom. Oakes and Radio New Zealand in turn identify three factors relevant to this consideration.
Within the second limb of the Oakes test, one must first be satisfied that the limiting measure is rationally connected to the achievement of the objective being pursued. Under Canadian jurisprudence, all this requires is that the measures logically further the objective,61 although evidence of this connection might be necessary where such a link is not plainly evident.62
61 See Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211 at 219. The Court’s directions on the Charter of Rights notes that the Court has seldom found that legislation fails this part of the test, although there are instances where this has occurred: David Stratas et al, The Charter of Rights in Litigation: Direction from the Supreme Court of Canada (Aurora, Ont.: Canada Law Book, 1990) 6:06. In Oakes (n 49), for example, section 8 of the Narcotic Control Act RSC 1970 was found to lack rational connection. Section 8 (which had certain criminal process implications and thereby impacted upon criminal process rights) contained a statutory presumption that possession of even small amounts of narcotics meant that the offender was deemed to be trafficking in narcotics. There was no rational connection, said the Court, between the possession of small amounts of narcotics and the countering of trafficking (para 78).
62 Figueroa v Canada (AG) [2003] 1 SCR 912. The Court was critical of aspects of the
Canada Elections Act RSC 1985 concerning the registration of political parties and the tax benefits that flow from such registration. The Act required that a political party nominate candidates in at least fifty electoral districts to qualify for registration. While the Court held that it was a pressing objective to ensure that the tax credit scheme was cost-efficient, it found that there was no rational connection between that objective and the fifty-candidate
Some further reflection is suggested at this point. The development of case law on this subject by the Supreme Court of Canada does not show a stringent approach to the rational connection test. In Lavigne v Ontario Public Service Employees Union, for example, the Supreme Court said that:63
The Oakes inquiry into ‘rational connection’ between objectives and means to attain them requires nothing more than a showing that the legitimate and important goals of the legislature are logically furthered by the means the government has chosen to adopt.
It is useful, particularly in the context of counter-terrorism however, to identify not only whether the counter-terrorist measure rationally furthers its objective, but also the extent to which this is effective. Having regard to the repeated reference to necessity, proportionality, and appropriateness international guidelines on human right compliance while countering terrorism,64 a counter-terrorist measure must not only be rationally connected to its legitimate objective, but must also be effective in its pursuit of that objective. Imposing a limitation on rights for the purpose of countering terrorism, but doing so through ineffective means, is unlikely to be justifiable. Such means, in all probability, would not be necessary, proportional, or appropriate.
The second proportionality requirement is that the limiting measures being examined must impair the right or freedom as little as reasonably possible.65 The Supreme Court initially displayed a degree of deference here, reluctant to consider the availability of alternative means of achieving an objective where the impairment upon the right was not serious. In R v Schwartz, for example, it was suggested that the statutory provision (which provided for a presumption that a person did not have a firearms licence if s/he failed to produce one upon request) unnecessarily infringed the presumption of innocence. Counsel for Schwartz argued that police could
threshold requirement. For the majority, Justice Iacobucci was particularly critical of the fact that the government had provided no evidence that the threshold actually improved the cost- efficiency of the tax credit scheme (para 68).
63 Lavigne v Ontario Public Service Employees Union (n 61).
64 See, infra, chapter 7.
65 See Oakes (n 49) 106; and R v Edwards Books & Art Limited (n 51) 772-773.
simply check their computerized records to ascertain whether a licence had indeed been obtained. Rejecting this proposal, Justice McIntyre stated:66
Even if there is merit in the suggestion... Parliament has made a reasonable choice in the matter and, in my view, it is not for the Court, in circumstances where the impugned provision clearly involves, at most, minimal - or even trivial - interference with the right guaranteed in the Charter, to postulate some alternative which in its view would offer a better solution to the problem.
This approach has been subsequently rejected on the basis that it would pre-empt the third stage of the proportionality analysis.67
The final proportionality requirement demands that the effects of any limitation must be proportionate to the importance of the objective.68 This is one of the most difficult issues involved in applying the Oakes test in general, let alone in the thorny context of assessing the validity of counter- terrorist measures that limit human rights. An examination of the relevant Supreme Court judgments reveals that the Court’s approach has been to consider the particular legislative provision in its context and on the facts, and such a line is a proper one to take. Much will depend on the specific limitation in question and how it impacts upon rights and freedoms. The Court in Oakes spoke of the need to ensure that the law restricting the right is not so severe and so broad in its application so as to outweigh the objective, adding in Lucas that this requires consideration of the importance and degree of protection offered by the human right being limited.69 In the same year, Chief Justice Lamer rephrased this part of the test, stating that:70
There must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures. [emphasis in the original]
Of note, but of no real coincidence given that the author is a New Zealand national, is the similarity between these proportionality factors and those identified in the Guide on Human Rights Compliance. What the Guide
66 R v Schwartz [1988] 2 SCR 443, 492-493.
67 See, for example, RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199, 200.
68 See Oakes (n 49) 106, and R v Lucas [1998] 1 SCR 439 (para 118).
69 Lucas (ibid).
70 Dagenais v Canadian Broadcasting Corp [1994] 3 SCR 835, 889.
does, however, is to then identify the appropriate factors to be considered in the particular context of counter-terrorism.
Conclusion
Where rights are not absolute, they are capable of limitation by various means, depending upon the nature and source of the right being considered. Most vulnerable are rights that may be limited by ordinary repeal. This chapter has identified that, relevant to this text, this may occur in the case of common law rights such as the privilege against self-incrimination, albeit that the Courts will take care to apply the principle of legality before allowing an unintended limitation of rights, or a limitation upon important common law rights, occurs. Also subject to implied repeal are the privacy principles under the Privacy Act 1993, although courts here will, by reconciliation, attempt to interpret legislation consistently with the principles to preserve the principles as much as possible, so long as a strained interpretation is not reached.
Common to international treaties and domestic law, rights are capable of definitional limitation, where the particular expression of rights might be interpreted to permit a certain level of limits. Expressions such as ‘fair’ or ‘unreasonable’ provide examples of this approach. Next, the enunciation of a substantive right may be followed by an expression of the way in which that right is capable of limitation, identified in this chapter as a rights- specific limitations provision. Finally, human rights instruments may contain a provision of general application concerning the limitation of rights set out in the document. At the international level, provisions allowing for the derogation of rights in a state of emergency illustrate this approach. In New Zealand and Canada, a general limitations provision is to be found also, permitting the limitation of rights where this is demonstrably justified in a free and democratic society.
Part III: Issues in Focus
Issues in Focus
Having examined the international framework for countering terrorism, and New Zealand’s corresponding law, the preceding part of this text then looked at the interface of human rights with terrorism and counter- terrorism. This final part of the text, as its title suggests, considers issues in focus. Progressing from democratic and civil rights to those triggered by the criminal process, chapters 12 to 19 examine, within the context of provisions within New Zealand’s counter-terrorism law, the freedom of expression, freedom of association, natural justice and the right to a fair hearing, privacy, the privilege against self-incrimination, the freedom from unreasonable search and seizure, the freedom from arbitrary detention and rights triggered upon arrest or detention. Chapter 11 first examines a constitutional issue which impacts upon human rights, rather than the application of substantive rights to counter-terrorism law: the interface between Parliament and the Executive in the making of regulations under the United Nations Act 1946.
The approach taken is primarily a national one, focussing first upon New Zealand’s domestic law. The application of international human rights obligations is also had. Where appropriate, and for the sake of identifying lessons for New Zealand, a comparative approach is also taken. This is particularly relevant to the discussion of the incitement to terrorism (chapter 13) and the terrorist designation process (chapter 15).
The United Nations Act 1946 and Executive Law-Making
As regulations made under the United Nations Act 1946, the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001 (considered in brief under chapter 5) raise some interesting issues about potential conflicts between UN regulations and civil and political rights. Chapter 11 will accordingly consider the regulations, and the empowering provision under the United Nations Act, and the mechanisms by which a balance can be achieved between security and human rights in the context of the Act and regulations made under it, as well as the maintenance of the separation of powers doctrine.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human
Rights in New Zealand. Electronic copies of this publication, in full or in
part, are available online at
<http://www.lawfoundation.org.nz>
Freedom of Expression
Turning then to democratic and civil rights, chapters 12 and 13 consider the freedom of expression. In the context of media control under the International Terrorism (Emergency Powers) Act 1987, chapter 12 considers the justifiability of the Prime Minister’s emergency powers to prevent the publication or broadcasting of certain matters relevant to an international terrorist emergency. Chapter 13 next examines the difficult question of the prohibition against the incitement to terrorism, drawing a comparison between New Zealand’s currently insufficient law and the United Kingdom’s legislative action under the Terrorism Act 2006 (UK).
The Designation of Terrorists and Terrorist Entities
Continuing with the theme of democratic rights, chapter 14 looks briefly at the freedom of association and the permissible range of limitations upon it and then explains the regime under New Zealand law by which individuals and entities may be listed as terrorist or associated entities. Chapter 15 picks up on the implications of this designation process, considering whether the right to a fair hearing is properly guaranteed.
Security and the Investigation of Terrorist Offences
The remaining chapters consider the various tools available to enforcement authorities for the suppression of terrorist conduct, or the investigation and prosecution of terrorist offences. Chapter 16 looks first at criminal law reform since September 11 and considers the definition of a “terrorist act” under the Terrorism Suppression Act 2002 which lies at the heart of most terrorist and terrorism-related offences under New Zealand law. Chapter 17 considers the surveillance tools now available to authorities, testing these against New Zealand’s obligation to protect those within its territory against unlawful or arbitrary interference with their privacy. Chapter 18 turns to the privilege against self-incrimination and recent law reform providing police with special powers under the Summary Proceedings Act 1957. Finally, chapter 19 looks at the various powers of search and seizure, and those of arrest and detention, under New Zealand’s counter-terrorism legislation and makes some observations on the question of the profiling of terrorist suspects.
The United Nations Act 1946 and Executive Law-Making
The New Zealand’s counter-terrorist obligations under UN Security Council resolution 1373 (2001) were, as discussed in chapters 4 and 5, implemented under regulations made pursuant to the United Nations Act 1946.1 Resolution 1373 placed particular emphasis on the issue of the financing of terrorism, calling upon States to become party to the International Convention for the Suppression of the Financing of Terrorism and requiring certain steps to be taken in the prevention and suppression of terrorism.2 New Zealand’s immediate response, by interim measure, was to make the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001 (the Terrorism Regulations), pursuant to an empowering provision in the United Nations Act.3
The object of this text is to examine the interface between counter- terrorist legislation and human rights, as applicable to New Zealand. Within that context, this chapter first examines the potential impact of the Terrorism Regulations upon human rights. In doing so, it will be concluded that there are no issues of concern, but an interesting aspect of the traditional tension between the executive and legislature is exposed. There has been, as reflected within the Magna Carta of 1215 and the Bill of Rights of 1688, a long-standing tension between the need for the Executive to have the ability to carry out certain functions, and the sovereignty of Parliament to legislate without interference. Although the issues to be discussed are not limited to the regulations made by New Zealand in
1 SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001).
2 International Convention for the Suppression of the Financing of Terrorism (the Financing Convention), opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10
April 1992).
3 The United Nations Sanctions (Terrorism Suppression and Afghanistan Measures)
Regulations 2001 came into force on 1 December 2001 and were to expire on 30 June 2002 (by which time it was expected that the Terrorism Suppression Bill 2001 would have passed through Parliament). Due to the early dissolution of Parliament, however, (prompted by early elections in July 2002), the life of the Regulations were extended to 31 December 2002 by the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Amendment Regulations 2002.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
response to Resolution 1373, those regulations illustrate an exercise of the regulation-making powers of the New Zealand Government in respect of obligations imposed upon it by the United Nations Security Council. Particular attention is therefore paid to the interaction between regulations made under the United Nations Act and rights and freedoms guaranteed under the New Zealand Bill of Rights Act 1990 (NZBORA), this heightening the tension because of Parliament’s role as “guardian of the public interest”.4
The United Nations Act 1946
Resolutions adopted by the UN Security Council under Chapter VII of the Charter of the United Nations, and the obligations they impose upon member States, are given effect to in New Zealand through the United Nations Act 1946, its preamble stating that it is:
An Act to confer on the Governor-General in Council power to make regulations to enable New Zealand to fulfil the obligations undertaken by it under Article 41 of the Charter of the United Nations.
Section 2(1) of the Act provides that if the Security Council calls upon the New Zealand Government to apply any particular measures to give effect to a decision of the Council, then the Governor-General in Council may make “...all such regulations as appear to him to be necessary or expedient for enabling those measures to be effectively applied”. Regulations made under the United Nations Act (United Nations regulations) fall within the category of what are known as ‘Henry VIII Clauses’, enabling provisions that authorise the regulations made thereunder to override primary legislation. Sub-section (2) thus states:
No regulation made under this Act shall be deemed to be invalid because it deals with any matter already provided for by an Act, or because of any repugnancy to any Act.
4 It is, naturally, contestable whether Parliament or the Judiciary is the ultimate “guardian” of the public interest, although most would agree that both are responsible for this, a matter outside the scope of discussion within this chapter. Notably, however, that phrase was used by the Regulations Review Committee when discussing the issue of abrogation of human rights: see Report of the Regulations Review Committee, Inquiry into Regulation-Making Powers that Authorise International Treaties to Override any Provisions of New Zealand Enactments, NZAJHR (2002) I. 16H, 16.
New Zealand has made various regulations under the United Nations Act in response to sanctions imposed by the Security Council.5 Although the Act is principally intended to respond to the making of sanctions by the Security Council, which tend to be of an interim nature, the Act does not contain any provision linking the life of United Nations regulations to the life of the corresponding sanctions.
Regulation-Making Powers in New Zealand
In March 2002, the Regulations Review Committee of New Zealand’s Forty-Sixth Parliament presented a report entitled Inquiry into Regulation- Making Powers that Authorise International Treaties to Override any Provisions of New Zealand Enactments to the House.6 The report was not directly on point to the issue being considered here, but there are principles enunciated within it that are relevant to the question of the executive’s
5 The extant regulations made under the United Nations Act 1946 are:
6 Report of the Regulations Review Committee, Inquiry into Regulation-Making Powers that Authorise International Treaties to Override any Provisions of New Zealand Enactments, NZAJHR (2002) I. 16H.
regulation-making powers under the United Nations Act and to the interaction between such regulations and the New Zealand Bill of Rights Act.
As the title suggests, the report of the Regulations Review Committee is concerned with regulations that authorise international treaties to override any Act of Parliament, the view of the Committee being that (as a principle) only Acts should be able to amend other Acts. While this focus on international treaties is due to the particular terms of reference of the Committee inquiry,7 it is most unfortunate that the Committee did not concern itself in any detail with regulation-making powers that might authorise obligations under the United Nations Charter (which is, after all, one of the most important multilateral treaties in existence) to override any Act of Parliament.8 The Committee took a peculiar approach to the issue of section 2 of the United Nations Act. On the one hand, it noted concern with the breadth of these regulation-making powers. It nevertheless dismissed the need to review those powers, stating:9
We do not seek review of section 2(2) of the United Nations Act 1946, as this provision falls within the exceptional circumstances in which regulation- making powers authorising overriding treaty regulations are justifiable...
The Committee did not, however, explain the basis for this conclusion. While the issue might appear to be narrow in its focus, it is unfortunate that it has not been fully considered since it is one that goes to the heart of the Committee’s inquiry – the balance between the executive’s law-making authority and Parliamentary sovereignty. That, in turn, is an issue that is of central importance to this text. It should by this stage of the work be apparent that consideration of the interface between counter-terrorism and human rights is, at a domestic level, one that concerns all three branches of
7 The Committee’s terms of reference required it to consider: (1) The circumstances in which regulation-making powers that authorise international treaties to override any provisions of New Zealand enactments have been used; (2) Alternative means of implementing international treaties into New Zealand law by regulations that do not authorise the provisions of a treaty to override any provisions of New Zealand enactments;
(3) The appropriateness of enacting regulation-making powers to implement international treaties into New Zealand law, notwithstanding the provisions of any other enactment; (4) General principles for identifying if and when it is appropriate to enact regulation-making powers that authorise international treaties to override any provisions of New Zealand enactments; and (5) What limits should be imposed on prescribing regulations to implement international treaties by overriding any provisions of New Zealand enactments.
8 It is unclear why the report does not consider the Charter of the United Nations, since this is an instrument that would appear to fall within the terms of reference (ibid).
9 Committee Report (n 6) 29.
the State and involves the separation of powers of each branch and the ability of one to check the other.
Notwithstanding the lack of direct consideration of the United Nations Act, there are various matters discussed within the report, and recommendations made, that are of relevance to the regulation-making power under this legislation. To begin with, the Regulations Review Committee was critical of Henry VIII Clauses, the overriding message of the Committee being that regulation-making powers should enable the derogation of an Act of Parliament only in exceptional circumstances.10 It accordingly recommended that the House consider limiting such powers in a number of ways, with the following suggestions having some bearing on the power within the United Nations Act:11
Of those recommendations, some warrant further consideration, others only brief mention.
As well as enabling the making of regulations, the United Nations Act provides for liability for breach of any regulations made under the Act and application of the Act in the Cook Islands.17 That is, however, the extent of
10 Ibid, recommendation 1, 17. See also the Regulation Review Committee’s discussion of Henry VIII Clauses at page 15 and an earlier report of the Committee concerning such clauses: Inquiry into the Resource Management (Transitional) Regulations 1994 and the Principles that Should Apply to the Use of Empowering Provisions Allowing Regulations to Override Primary Legislation During a Transitional Period, NZAJHR (1995) I. 16C.
11 A number of the recommendations reflect those made by an earlier Committee in its 1995 report, above n 6, 22.
12 See Recommendation 3(2), ibid, 4: discussed within pp.21–22 of the report.
13 See Recommendations 3(3) and 4, ibid, 4: discussed within pp.21-23 of the report.
14 See Recommendation 2, ibid, 4: discussed within pp.19–20 of the report.
15 See Recommendation 5, ibid, 4: discussed within pp.23–26 of the report.
16 See Recommendation 3(4), ibid, 4: discussed within pp.16 and 22 of the report.
17 See sections 3 and 4 of the United Nations Act 1946. The application of the Act to the Cook Islands is a carryover of New Zealand’s former governance over the Cook Islands as a ‘non-self-governing territory’. The Cook Islands became self-governing in free association
the Act. The first recommendation listed above can therefore have little application to the Act, the sole purpose of which is to establish a mechanism by which the New Zealand Government can comply with decisions of the UN Security Council.
The second recommendation listed, pertaining to explicit reference within an empowering provision to statutory provisions that may be overridden by such regulations, is self-explanatory and does not need any further consideration. This will effectively be a question for Parliament to answer. The remaining suggestions do, however, raise some interesting issues for United Nations regulations and might assist in deciding the level to which these regulations can and should override primary legislation.
Limiting Enabling Provisions to Emergency Measures
Although the Committee recognised that there may be a need to make regulations which, in a situation of emergency, might require enactments to be superseded, it was very cautious in doing so. It noted, for example, that mechanisms already exist for the rapid adoption of legislation through the House by way of urgency.18 All the same, it considered that in exceptional circumstances, citing the example of the Executive Government needing to respond to Security Council resolutions when Parliament is not sitting, regulations may be made.19
While not given further consideration, it therefore seems that the Committee was willing to recognise that regulations made under the United Nations Act can be appropriately used to override Acts of Parliament. What
with New Zealand on 4 August 1965 and has the right at any time to move to full independence by unilateral action: see Countryreports.org, ‘Cook Islands’ URL
<http://www.countryreports.org/country.asp?countryid=58&countryName=Cook%20Islands
> at 20 March 2005. Against that background, section 4 of the United Nations Act 1946 provides: “(1) This Act shall be in force in the Cook Islands and, to the extent to which Her Majesty has jurisdiction therein, in every other territory for the time being administered by Her Majesty's Government in New Zealand. (2) Except so far as otherwise expressly provided, regulations made under this Act shall not be in force in the Cook Islands or in any such territory as aforesaid”.
18 The practical observation, however, is that this does not occur very frequently: discussion
between the author and Professor John Burrows, University of Canterbury, 10 March 2005. 19 Committee Report (n 6) 20. The example of the Government being required to establish peacekeeping forces under the United Nations Act 1946, in response to measures required by the United Nations Security Council, was suggested by the New Zealand Law Society as being an appropriate emergency measure justifying Henry VIII regulation-making: see Submissions by the New Zealand Law Society to the Regulations Review Committee in its Inquiry into Regulation-Making Powers that Authorise International Treaties to Override any Provisions of New Zealand Enactments, Parliamentary Library, Wellington, para 10.
seems clear, however, is that this should be limited to exceptional circumstances. While the Committee does not go on to define the scope of such circumstances, it is suggested that the position to be adopted in the current context should be to allow government compliance with UN resolutions through regulations only if the resolution requires immediate action and when Parliament is not sitting. In the context of the Terrorism Regulations, these were made during the 2001 session of Parliament.
Tying this point to the potential abrogation of human rights, it is notable that a similarly restrictive view is adopted within the International Covenant on Civil and Political Rights (ICCPR).20 As discussed in chapter 7, Article 4 of the Covenant permits certain limitations upon rights and freedoms when a public emergency which threatens the life of a nation arises. A State party cannot, however, derogate from certain specific rights and may not take discriminatory measures on a number of specified grounds.21 States are also under an obligation to inform other States parties immediately, through the UN Secretary-General, of the derogations it has made including the reasons for such derogations and the date on which the derogations are terminated.22 The Human Rights Committee signalled in its general comment on the application of article 4 that this is limited to states of emergency, as provided for within municipal legislation setting out grounds upon which a state of emergency may be declared.23 It also expressed the view that measures taken under article 4 are of an exceptional and temporary nature and can only last as long as the life of the nation concerned is threatened.
Providing Additional Parliamentary Scrutiny
Greater scrutiny by Parliament of Henry VIII regulations was something recommended by the Committee. Under current procedures, the Regulations (Disallowance) Act 1989 provides for what is known as a
20 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
21 Article 4(2) of the International Covenant on Civil and Political Rights qualifies the ability to derogate by stating that “No derogation from articles 6, 7, 8 (paragraphs 1 and 2),
11, 15, 16 and 18 may be made under this provision” — those articles relating to the right to life (Article 6), freedom from torture or to cruel, inhuman or degrading treatment or punishment (Article 7), the prohibition of slavery and servitude (Article 8(1) and (2)), freedom from imprisonment for failure to fulfil a contract, freedom from retrospective penalties (Article 15), the right to be recognised as a person before the law (Article 16) and freedom of thought, conscience and religion (Article 18).
22 Article 4(3) of the International Covenant on Civil and Political Rights.
“negative” procedure of Parliamentary approval.24 That is, regulations remain in force unless specifically disallowed by Parliament. The alternative “positive” procedure for scrutiny would provide that regulations do not come into force until first allowed by Parliament.25 As recently noted by the Regulations Review Committee, this is a reasonably common (and growing feature) of the making of regulations in New Zealand.26 As well as positive and negative approval procedures, a third method is used in England: the ‘super affirmative procedure’. The procedure is intended for scrutiny of regulations of an important or sensitive nature such that Parliament should consider, through a specialised Parliamentary Committee, the regulations in their draft form rather than waiting for them to be made and subsequently disallowing them.27 The benefits are naturally two-fold: Parliament is able to have input and control of the process prior to the regulations coming into force; and the Executive Government can be sure that important and sensitive matters are given effect to in a timely manner, without the risk of subsequent disallowance.28
Regulations Abrogating Rights and Freedoms
In its submissions to the Regulations Review Committee, the Ministry of Foreign Affairs and Trade made the very valid point that there are significant benefits to be gained from the use of overriding treaty regulations.29 It pointed to this allowing the executive to ensure compliance
23 See Human Rights Committee, States of Emergency (Article 4), CCPR General Comment 29 of 2001, reprinted UN Doc HRI/GEN/1/Rev.6 at 186 (2003), para 2.
24 See section 6 of the Regulations (Disallowance) Act 1989 and Standing Order 387 of New Zealand Standing Orders of the House of Representatives.
25 For further discussion on positive approval procedures, see Thornton GC, Legislative Drafting, (4th ed, Butterworths, 1996), 337. The only positive procedures in New Zealand are contained within: (1) the enabling provision of section 4(1) of the Misuse of Drugs Act 1975, which requires a resolution of the House approving any regulations made under that Act before they can come into force; and section 78B of the Dog Control Act 1996 (inserted by section 46 of the Dog Control Amendment Act 2003).
26 Regulations Review Committee, Interim Report on the Inquiry into the Affirmative Resolution Procedure, NZAJHR (2004), I.16F, 3.
27 For further discussion on the process, see Tudor P, “Secondary Legislation: Second Class or Crucial?”, Statute Law Review, Volume 21, 149.
28 An example of this procedure in the United Kingdom, cited within the Committee’s Report, is the approval of remedial orders under the Human Rights Act 1998: above n 6, 26.
29 See Submissions by the Ministry of Foreign Affairs and Trade to the Regulations Review
Committee in its Inquiry into Regulation-Making Powers that Authorise International Treaties to Override any Provisions of New Zealand Enactments, Parliamentary Library, Wellington.
with treaty obligations and avoiding wasted time by Parliament in considering technical, rather than policy, matters.
A similar approach might be adopted to the situation of international obligations under the United Nations Charter, although an important difference needs to be noted. The submissions of the Ministry made a broad distinction between matters of policy and technical matters and equated bilateral treaties as being technical, versus multilateral treaties as often involving policy issues.30 The former, according to the Ministry’s formulation, may properly override primary legislation. Where, within that scale, do obligations imposed by the UN Security Council fall? There is no absolute answer. From one perspective, resolutions of the Security Council are adopted as an exercise by the Council of its mandate under the United Nations Charter (a multilateral treaty) and are likewise binding upon States through the Charter.31 Adopting the Ministry’s broad categorisation, such resolutions might therefore be considered as involving matters of policy. The reality, however, is that obligations imposed upon States under resolution of the Security Council are quite often very specific and technical (particularly when calling for the imposition of trade sanctions and the like). The question must therefore be addressed having regard to the substance of each particular resolution and its effect.
If the effect of UN regulations is to abrogate human rights, by impacting upon the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, or the Human Rights Act 1993, that is clearly a matter of policy rather than mere technicalities. Adopting the philosophy behind the Ministry’s own submissions, such matters must therefore be within the influence of Parliament. Where human rights are to be affected, the ability of Parliament to carry out its role as “guardian of the public interest” (as expressed by the Review Committee) must be protected.32 Central to this Parliamentary role, as recognised by the Committee, is the protection of rights and freedoms.33
This is not to suggest that non-compliance with Security Council resolutions is acceptable. Indeed, non-compliance with mandatory provisions of a resolution of the Council would be contrary to New Zealand’s obligations as a member of the United Nations.34 If that occurred, the Security Council would be entitled to issue sanctions against New
30 Ibid.
31 Charter of the United Nation 1945, Articles 24 and 25. There are 191 States parties to the Charter.
32 Committee Report (n 6) 16.
33 Ibid, 17.
34 Charter of the United Nations, Article 25.
Zealand for its failure to comply.35 The issue being addressed here concerns the manner in which such obligations are implemented by New Zealand, by whom they are implemented (the executive alone, Parliament alone, or the executive with Parliamentary scrutiny), having regard to the consequences of the implementing regulations (potentially abrogating human rights).
The Issue in Context: Counter-Terrorism versus Human Rights
The issue being considered here (the relationship between regulations made under the United Nations Act and human rights) is one that, unless subsequently taken up by the Regulations Review Committee, is relatively academic in nature. Discussion of the issue, to this point, has predominantly been in the abstract. It is therefore useful to place the issue in context by considering the Terrorism Regulations made in response to Security Council resolution 1373 (2001).
Suppressing the Financing of Terrorism
As discussed within chapter 3, one of the primary objectives of resolution 1373 (2001) was to suppress the financing of terrorist activities and entities by imposition of specific obligations to achieve those ends. In that regard, there is natural logic to the notion that combating terrorism can, at least in part, be achieved or assisted by the suppression of the financing of terrorist organisations. By cutting off the monetary means of, or access to finance by, terrorist groups the ability of those groups to obtain arms and explosives and to pay for the various means by which terrorist acts can be committed will be stifled.36
As also intimated within chapter 3, of the various terrorism-related conventions, the Financing Convention is possibly the most controversial. It requires States parties to take steps to prevent and counteract the financing of terrorists, whether direct or indirect, through groups claiming to have charitable, social or cultural goals or which also engage in such illicit activities as drug trafficking or gun running. It commits States to hold those who finance terrorism criminally, civilly or administratively liable for such acts and provides for the identification, freezing and seizure of funds allocated for terrorist activities, as well as for the sharing of the forfeited
35 See Chapter VII of the Charter of the United Nations, Articles 41 and 42 in particular.
36 See the preamble to the International Convention for the Suppression of the Financing of Terrorism (n 2).
funds with other States on a case-by-case basis. Bank secrecy is no justification for refusing to cooperate under the treaty.
Security Council resolution 1373 was adopted soon after 11 September 2001, through which the Council determined that all States are to prevent and suppress the financing of terrorist acts, including the criminalisation of such financing and the freezing of funds and financial assets.37 Described as one of the most strongly worded resolutions in the history of the Security Council,38 it also requires countries to cooperate on extradition matters and the sharing of information about terrorist networks.39 As a decision made under Chapter VII of the United Nations Charter, compliance with the latter Resolution is mandatory under international law.40
The Terrorism Regulations
In its first report to the Security Council Counter Terrorism Committee under paragraph 6 of the Resolution, New Zealand stated that it would be in full compliance with the Convention for the Suppression of the Financing of Terrorism once the Terrorism Suppression Bill was passed into law.41 By way of interim measure, the Government implemented the relevant obligations by passing the Terrorism Regulations made under the United Nations Act. New Zealand reported that further legislation would be introduced to give effect to the remaining obligations under Resolution 1373, adding further provisions to the Terrorism Suppression Bill (now Act) and amending other legislation such as the Crimes Act 1961 and the Immigration Act 1987. This was eventually achieved through the legislative amendments introduced under the Counter-Terrorism Bill 2003.
The question in context is this: were the regulations made within the terms of the empowering provision under the United Nations Act 1946? If
37 SC Res 1373 (n 1).
38 Richard Rowe, “Key Developments: Year of International Law in Review”, A paper presented at the 10th Annual Meeting of the Australian & New Zealand Society of International Law, New Challenges and New States: What Role for International Law?, 15 June 2002, Australian National University, Canberra. Richard Rowe worked, at that time, in the International Organisations and Legal Division of the Australian Department of Foreign Affairs and Trade. He was the Australian representative and Vice-Chairman of the Ad Hoc
Committee Established by General Assembly Resolution 51/210 during its Sixth Session, which followed the September 11 attacks.
39 SC Res 1373 (n 1) para 3.
40 Charter of the United Nations, Article 25.
41 Report to the Counter-Terrorism Committee pursuant to paragraph 6 of Security Council resolution 1373 (2001) of 28 September 2001, New Zealand, 2 January 2002, S/2001/1269. New Zealand’s subsequent report, within which it addressed various questions posed to it by the Committee, was submitted on 10 July 2002. The Bill was passed into law in 2002.
the answer is in the negative, and it is disclosed that the New Zealand Government in fact exceeded its authority in an endeavour to present a positive report to the Security Council, then the relevant provisions of the regulations would have been ultra vires.42
If, on the other hand, the regulations did no more than what is permitted by the United Nations Act, it is suggested that this is not necessarily the end of the matter. Under the Regulations (Disallowance) Act 1989, all regulations made after 19 December 1989 must be put before the House of Representatives. Under Parliamentary Standing Orders, such regulations are in fact presented to the Regulations Review Committee.43 Aspects of the Committee’s 2002 report to the House on regulation-making powers raise the issue of whether, notwithstanding the potentially proper making of the regulations in question, it was appropriate for the executive to act in the way it did. This involves consideration of issues surrounding the treaty-making process within New Zealand, and various comments within the Committee’s Report concerning the making of regulations that impact upon Acts of Parliament.
Examining the Terrorism Regulations
Having regard to the controversial nature of the Financing of Terrorism Convention, and the fact that New Zealand reported to the Security Council Committee that (by way of interim measure) it implemented the financial regulation obligations through the Terrorism Regulations,44 is there cause for concern? First, are the regulations beyond or within the statutory authority under the United Nations Act? Next, is there a conflict between the Regulations and the Bill of Rights?
As discussed, the United Nations Act empowering provision permits the executive to make regulations in order to comply with any requirements imposed upon New Zealand by the Security Council under Article 41 of the Charter of the United Nations. The Terrorism Regulations contain various provisions relating to financial regulation, creating offences where the Government is satisfied that a person has financed a terrorist group (as
42 See, for example, Official Assignee v Chief Executive Officer of the Ministry of Fisheries
(CA) [2001] NZCA 341; [2002] 2 NZLR 722.
43 Standing Order 387 of New Zealand Standing Orders of the House of Representatives.
44 It should be noted, however, that the New Zealand’s report does not say that the Regulations incorporated the obligations under the International Convention on the
Suppression of the Financing of Terrorism. It only said that the Regulations were there to give effect to the financial regulation obligations imposed under Security Council resolution 1373 (n 1).
defined within the Schedule to the Regulations).45 This, according to the Regulations’ preamble, has been done for the purpose of giving effect to Resolution 1373.46 If, upon examination, it was shown that the regulations were outside the terms of the empowering provision, what would the consequences be? First, it would mean that the regulations would be ultra vires the empowering Act.47 Added to this would be the fact that the regulations would bypass the legislative process mandated within the House of Representatives Standing Orders.48
Upon close inspection of the Terrorism Regulations, it transpires that the regulations do not appear to offend the scope of the empowering provision, nor the Bill of Rights. The offences created by the Regulations were clearly within the scope of obligations imposed upon New Zealand through paragraph 1 of resolution 1373 (2001):
(a) Prevent and suppress the financing of terrorist acts;
(b) Criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts;
(c) Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities;
(d) Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the
45 Limited to Al-Qaida, the Taliban and Usama bin Laden: see the Schedule to the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001 and the Regulation’s definitions of those entities within regulation 4(1).
46 The Regulations are also stated to be made to give effect to SC Res 1267, UN SCOR, 4051st Mtg, UN Doc S/Res/1267 (2001), and SC Res 1333, UN SCOR, 4251st Mtg, UN Doc S/Res/1333 (2000). These resolution of the Security Council relate to the regulation of
financial and other assistance to the Taliban regime in Afghanistan.
47 See Robertson Adams on Criminal Law (Brookers Loose-Leaf), 10-30.
48 See Standing Orders 389 to 392 inclusive of the New Zealand Standing Orders of the
House of Representatives, which require international treaties (that are proposed to be ratified or acceded to by the Executive Government) to be presented to the House with a “National Interest Assessment”. See also the report of the New Zealand Law Commission, The Treaty Making Process: Reform and the Role of Parliament, Report 45 (1995), Wellington; and a recent private member’s bill, the International Treaties Bill.
benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;
The Regulations did not go as far as the Financing of Terrorism Convention goes, nor the Terrorism Suppression Act 2002 (NZ) — through which the Convention was eventually incorporated into domestic law.49 Neither was the New Zealand Bill of Rights Act, nor the Privacy or Human Rights Acts, impinged upon. The offences within the Regulations were framed within the context of conduct in support of terrorist organisations where the person knows that s/he is doing so. This is in fact much narrower in focus than the equivalent provisions of the Terrorism Suppression Act 2002, which drew criticism on account of the broad definition of terrorist groups and liability for reckless conduct within sections 8 and 9 of the Act.50 The executive acted responsibly, in the author’s view, to avoid any potential natural justice51 or rule of law52 conflicts between the Regulations and human rights.
This is all positive news and displays a responsible approach on the part of the Executive in using regulations for counter-terrorist measures. Notwithstanding this, two potential problems remain. First is the fact that the power to make ‘Henry VIII’ regulations inconsistent with the NZBORA
49 It could not, however, be said that New Zealand’s initial report to the Security Council Counter Terrorism Committee was misleading. As discussed at note 40 above, it only said that the Regulations were there to give effect to the financial regulation obligations imposed under United Nations Security Council Resolution 1373.
50 See, for example, Submissions of the Institute of Chartered Accountants of New Zealand to the Foreign Affairs, Defence and Trade Committee on the Terrorism <Bombings and Finance> Suppression Bill, TERRO/63, and Submissions of the New Zealand Banker’s
Association to the Foreign Affairs, Defence and Trade Committee on the Terrorism
<Bombings and Finance> Suppression Bill, TERRO/133, Parliamentary Library, Wellington.
51 A criticism that might be directed towards the Terrorism Suppression Acts designation process, through which a group is able to be categorised as being a terrorist group on the basis (potentially) of information not disclosed to the designee for national security reasons (thereby stifling the right to be heard and make a proper response), and the very limited judicial scrutiny of the process and potential recourse to the judiciary: see Chapter Seven.
52 A criticism that might be made of the Terrorism Suppression Act’s offence regime due to the broad definition of terrorist groups and the consequential inability of citizens to regulate their conduct in accordance with reasonably accessible law. The Solicitor-General’s advice
to the Attorney-General, however, was that the definitional provisions of the Terrorism (Bombings and Financing) Bill did not pose such a problem and guaranteed certainty: Letter from the Solicitor-General to the Attorney-General, “re Terrorism Suppression Bill: Slip Amendments – PCO 3814B/11 Our Ref: ATT114/1048 (15)”, 9 November 2001, paras 6-
15.
nevertheless remains with the executive under the United Nations Act (whether exercised or not). Secondly, and this might be of more concern, is the potential for the UN Security Council to adopt a resolution with obligations upon the executive that do, in fact, impact upon rights and freedoms. In such a situation, the New Zealand Government would be bound, by reason of Article 25 of the United Nations Charter, to give effect to such directions. What then? Which obligations are to be given priority: those under the United Nations Charter or those under the International Covenant on Civil and Political Rights (as incorporated through the NZBORA)?
The Issue in Principle: How should the United Nations Act and Bill of Rights Act interact?
The foregoing discussion leads to these conclusions. Regulations made under the United Nations Act are open to “negative” procedural scrutiny by Parliament, such that they will come into force on the date nominated within the regulations unless actively disallowed by Parliament. When in force, the regulations have the potential to override the Bill of Rights Act, to the extent in which they might limit any right or freedom contained therein by the express provisions of the regulations. In view of the principles propounded by the Regulations Review Committee, however, one might ask (and this, in the writer’s view, is a constitutionally significant question): how should regulations be made under the United Nations Act, in particular to afford New Zealand citizens with protection from unfettered executive law-making power and/or over-zealous direction from the UN Security Council threatening the abrogation of human rights?
Operative Provisions of the Bill of Rights Act
As discussed in chapter 8, the operative provisions of the Bill of Rights, sections 4, 5 and 6, direct how the Act is to be applied to other legislation and, thereby, how the Bill of Rights is to be used as a tool of statutory interpretation.
Given that regulations made under the United Nations Act are ‘Henry VIII’ regulations, how do these operative sections apply? Two issues arise. First, does section 6 of the NZBORA require the regulations to be made consistently with the Bill of Rights Act? Secondly, does section 4 of the Bill of Rights, combined with section 2(2) of the United Nations Act, provide United Nations regulations with special protection?
Applying Section 6 of the NZBORA
The position here is simple. By application of the general principles of statutory interpretation, one is able to argue that section 6 of the Bill of Rights requires any item of subordinate legislation to be made in a manner that is consistent with the NZBORA, lest that subordinate legislation (including UN regulations) be ultra vires its empowering Act. By virtue of section 6, wherever an enactment can be given a meaning that is consistent with the provisions of the Bill of Rights Act “that meaning shall be preferred to any other meaning”. This was the approach taken by the New Zealand Court of Appeal in Drew v Attorney-General, where the Court was faced with the question of whether regulations preventing legal representation were ultra vires the empowering section of the Penal Institutions Act 1954 by reason of inconsistency with the New Zealand Bill of Rights Act 1990.53
Adopting that approach, the United Nations Act empowering provision must be construed consistently with the NZBORA so that it does not confer upon its delegate the power to make subordinate legislation which infringes the Bill of Rights Act.
Applying section 4 of the NZBORA to section 2(2) of the UN Act
The next question to consider is whether section 4 of the NZBORA, combined with section 2(2) of the United Nations Act, provides United Nations regulations with special protection. The effect of section 4 of the NZBORA is that no provision of an enactment can be treated as invalid or ineffective if that provision is irreconcilably in conflict with the Bill of Rights. Does section 4 thus protect the Henry VIII status of regulations made under the United Nations Act? To answer this, a further question needs to be considered: is section 2(2) of the United Nations Act irreconcilably in conflict with the Bill of Rights?
As just discussed, section 6 of the Bill of Rights requires enactments to be interpreted in a manner that is consistent with it. How, then, is section 2(2) of the United Nations Act to be interpreted? Section 2(2) provides:
No regulation made under this Act shall be deemed to be invalid because it deals with any matter already provided for by an Act, or because of any repugnancy to any Act.
53 Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58: discussed further in chapter 8, infra, concerning the meaning of the term “enactments”.
However, nowhere in the United Nations Act is there an authority to regulate in a manner inconsistent with the Bill of Rights. One possible interpretation, then, is that since such authority is not contained within the Act itself, then regulations made under the Act cannot be repugnant to the provisions of the NZBORA. This would certainly be an interpretation that is more consistent with the Bill of Rights and is therefore to be preferred by application of section 6 of the NZBORA to section 2(2) of the UN Act. On the other hand, it might be argued that the words of section 2(2) do not avail themselves of the potential interpretation proffered, since they clearly provide validity to regulations despite “any repugnancy to any Act” [emphasis added].
By arriving at such a relatively neutral position, or at least one that is arguable either way, it is difficult to draw a positive conclusion. What the analysis illustrates, however, is the potential dichotomy between the maintenance of peace and security and that of human rights standards: the central conflict being considered within this thesis. Within the recommendations that follow, it will be proposed that this dichotomy is such that it places itself squarely within the realm of policy considerations that should remain within the purview of Parliament and not the Executive Government alone.
Recommendations
In the absence of a specific and comprehensive review and report by the Regulations Review Committee itself, the author makes the following recommendations regarding the regulation-making power under the United Nations Act 1946:
possibly any provision of the Privacy Act 1993 and Human Rights Act 1993.
and/or
and/or
By adopting the latter restriction(s), Parliament would retain control over the policy aspects involved in weighing any conflict between New Zealand’s obligations under the United Nations Charter versus those under the International Covenant on Civil and Political Rights and thereby preserve its role and the protector of the public interest.
Conclusion
Although examination of the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001 has not disclosed any potentially ultra vires provisions, consideration of the Regulations has triggered contemplation of an important issue. Namely, how the balance of power is to be attained in the situation of subordinate legislation made under the United Nations Act 1946 (in pursuit of international security measures mandated by the UN Security Council).
Regrettably, there has been little direct consideration of the issue within New Zealand. This chapter has therefore examined the issue and outlined
the potential dangers that exist with the regulation-making power under the Act. First, the Executive may make regulations that are not subject to scrutiny; second, those regulations have superior status over Acts of Parliament; and third, they may be used to limit human rights with no power of recourse to the Courts. The recommendations made seek to achieve a balance between national and international security, with the desire to maintain and protect human rights and preserve the “checking” function under the separation of powers doctrine.
Chapter 12
Freedom of Expression and Media Control
The ‘War on Terror’, and the legislative and executive action that followed
11 September 2001, have been cited as the cause of a decline in the freedom of the press.1 Interestingly, in the case of New Zealand, there have been no legislative changes since September 11 impacting upon media control. Rather, media control was something legislated for under the International Terrorism (Emergency Powers) Act 1987 (ITEPA) following the Rainbow Warrior bombing in 1985. This chapter considers the question of media control under the ITEPA and how this fits with the New Zealand Bill of Rights Act 1990 and its ‘parent’ the International Covenant on Civil and Political Rights.2
The International Terrorism (Emergency Powers) Act 1987
Under the ITEPA, the Prime Minister of New Zealand is able to prohibit the publication or broadcasting of certain matters relevant to an “international terrorist emergency” (as defined in the Act).3 Although an international terrorist emergency has never been invoked, Assistant Commissioner of Police responsible for counter-terrorism, Jon White, has reported that this was contemplated in 2003 when cyanide was mailed in
1 See, for example, the accounts of the organisation Reporters Without Borders, pointing to the physical violence and enforced disappearance suffered by journalists, the arrest and detention of media workers, censorship, and the surveillance of the internet: ‘2003 Round- Up’, Reporters Without Borders, 6 January 2004, URL <http://www.charter97.org/eng/ news/2004/01/06/borders> at 11 March 2005; and ‘United States’, Reporters Without Borders, 22 June 2004, URL <http://www.rsf.org/article.php3?id_article=10612> at 11 March 2005. See also United Nations Foundation, ‘Report Shows Decline of Press Freedom with War on Terror’, UN Wire, 8 January 2004, URL <http://www.unwire.org/UNWire> at 12 January 2004.
2 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
3 See further, infra, chapter 5.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
threatening letters to the embassies of the United States and United Kingdom.4
Section 14 of the ITEPA provides the Prime Minister with certain rights to control the media where an international terrorist emergency has been declared:5
14. Prime Minister may prohibit publication or broadcasting of certain matters relating to international terrorist emergency-
(1) Where, in respect of any emergency in respect of which authority to exercise emergency powers has been given under this Act, the Prime Minister believes, on reasonable grounds, that the publication or broadcasting of—
(a) The identity of any person involved in dealing with that emergency; or
(b) Any other information or material (including a photograph) which would be likely to identify any person as a person involved in dealing with that emergency—
would be likely to endanger the safety of any person involved in dealing with that emergency, or of any other person, the Prime Minister may, by notice in writing, prohibit or restrict—
(c) The publication, in any newspaper or other document; and
(d) The broadcasting, by radio or television or otherwise,—
of the identity of any person involved in dealing with that emergency, and any other information or material (including a photograph) which would be likely to identify any person as a person involved in dealing with that emergency.
(2) Where, in respect of any emergency in respect of which authority to exercise emergency powers has been given under this Act, the Prime Minister believes, on reasonable grounds, that the publication or broadcasting of any information or material (including a photograph) relating to any equipment or technique lawfully used to deal with that emergency would be likely to prejudice measures designed to deal with international terrorist emergencies, the Prime Minister may, by notice in writing, prohibit or restrict—
(a) The publication, in any newspaper or other document; and
(b) The broadcasting, by radio or television or otherwise,—
of any information or material (including a photograph) of any such equipment or technique.
(3) The Prime Minister may issue a notice under subsection (1) or subsection
(2) of this section notwithstanding that the emergency in respect of which the notice is issued has ended.
4 John Smith, New Zealand’s Anti-Terrorism Campaign: Balancing Civil Liberties, National Security, and International Responsibilities, Ian Axford New Zealand Fellowship in Public Policy, December 2003, 11, note 57.
5 Subsections (4) and (5) of section 14 (concerning the publication of section 14 notices in the Gazette and proceedings of the House of Representatives) have not been reproduced.
Section 15 of the Act then deals with the expiry, revocation and renewal of section 14 notices. Subsection (3) provides that, unless earlier revoked or extended (or unless the notice specifies the life of the notice), a section 14 notice will expire 12 months after the date on which it was issued. This provision is unaffected by whether the terrorist emergency continues to exist. Section 15(4) allows further extensions for periods of five years at a time, if renewal of the notice is necessary either to protect the safety of any person, or to avoid prejudice to measures designed to deal with international terrorist emergencies.
The Availability of Judicial Review
A potential problem with the Prime Minister’s powers under sections 14 and 15 of the ITEPA is that the establishment and continuance of media gags might not be capable of being challenged. If this is correct, there is no guarantee that notices under sections 14 and 15 are indeed connected with the stated objectives within those provisions. In the absence of a review mechanism, the effect of the provisions is to create the potential for an unfettered abuse of media control under the ITEPA.
The issue thus arising is whether notices under sections 14 and 15 are reviewable. The starting point is to recognise that the ITEPA does not prohibit judicial review and, as such, the media may be able to challenge the continuance of media gags through judicial review proceedings. This will depend on whether decisions of the Prime Minister under sections 14 or 15 of the ITEPA are justiciable. The most recent word on the justiciability of ministerial decisions in New Zealand is the case of Curtis v Minister of Defence.6 Citing its earlier decision in CREEDNZ v Governor General,7 and decisions of the Supreme Court of Canada and House of Lords, the New Zealand Court of Appeal concluded that:8
A non-justiciable issue is one in respect of which there is no satisfactory legal yardstick by which the issue can be resolved. That situation will often arise in cases into which it is also constitutionally inappropriate for the Courts to embark.
As to the making of decisions under sections 14 and 15, and applying the test identified by the Court of Appeal, such decisions do appear to be justiciable. Rephrasing the Court’s test in the context of the ITEPA
6 Curtis v Minister of Defence [2002] NZCA 47; [2002] 2 NZLR 744.
7 CREEDNZ v Governor General [1981] 1 NZLR 359.
8 Curtis v Minister of Defence (n 6) 752 (para 27).
provisions, there are two questions to ask. First, are decisions under sections 14 and 15 ones in respect of which it would be constitutionally acceptable for the courts to embark? Second, is there a satisfactory legal yardstick by which to determine whether the Prime Minister’s decisions under sections 14 and 15 have been properly made? The answer to both questions is in the affirmative.
Considering the first question, the determinations at hand are not ones of a constitutionally sensitive nature calling for judicial deference. The decisions concern the safety of persons and the potential prejudice of information to future counter-terrorist operations. Unlike Curtis, they are not decisions concerning the disposition of armed forces or other policy- based matters. Such a conclusion is consistent with the Court of Appeal’s approach in the Zaoui case, where the decision to issue a security certificate was held to be subject to judicial review in the absence of an express exclusion of judicial review.9 This also goes to answer the second question. In exercising judicial review of decisions under sections 14 and 15, the courts would be considering the application of facts to the statutory tests under those provisions to determine whether the establishment or continuance of notices is proper. The question to be considered or, in the words of the Court of Appeal, the legal yardstick to be applied by the courts would be this: Would the publication or broadcasting of the identity of any person involved in the emergency (or of other information or material that would lead to the identity of such a person) be likely to either (1) endanger the safety of that or any other person (sections 14(1) and 15(4)(a)), or (2) prejudice measures designed to deal with international terrorist emergencies (section 14(2) and 15(4)(b))?
The question is a justiciable one, capable of determination upon the application of facts, and judicial review is thus available as a safeguard against the improper use of sections 14 and 15 of the ITEPA. The consequence of this is significant to the question of the provisions’ compatibility with the New Zealand Bill of Rights Act, which is considered later in this chapter.
The Unique Nature of the Prime Minister’s Powers
An observation to be made at this early stage is that the powers being considered under the ITEPA stand as a rare example of media control in counter-terrorism law and practice. Comparable powers are not known to exist in other Western democracies. Notwithstanding the uncommon nature
9 Attorney-General v Zaoui (No 2) [2004] NZCA 244; [2005] 1 NZLR 690.
of these powers, however, the position of this author is that they are justifiable within their particular statutory framework and having regard to the availability of judicial review. If media control is indeed justifiable within those confines, one might therefore ask why New Zealand stands as an exception to general practice.
There is no clear answer to this question and one can only speculate. Two alternative and potentially overlapping considerations may have dissuaded other jurisdictions from taking similar steps. First, is the unpopularity of such legislative action being taken. Media control is something that is generally strongly opposed, although it may be that the pre-bill of rights mood in New Zealand existing at the time of the enactment of the ITEPA rendered such opposition ineffective. The other factor is that media control in this area may be perceived as unnecessary or, at least, that its absence does not pose a sufficiently high risk to warrant the potential political fall-out of taking legislative action. The type of information capable of protection under the ITEPA is, after all, unlikely to fall into the hands of the media, since such information will normally relate to covert operations, or operations that are conducted out of the sight or knowledge of the media.
Freedom of the Press
Freedom of expression is a matter dealt with under Article 19(2) and (3) of the International Covenant on Civil and Political Rights. Paragraph (3) sets out the permissible limitations upon the freedom (to be discussed), while paragraph (2) expresses the substantive right:
In very similar terms, section 14 of the New Zealand Bill of Rights guarantees “the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”.
Freedom of Expression and Freedom of the Press
A question to briefly consider is whether Article 19 and section 14 afford protection to the media. In contrast to section 2(b) of the Canadian Charter
of Rights and Freedoms,10 neither the ICCPR nor the NZBORA expresses a ‘freedom of the press’. In the case of section 14 of the NZBORA, the approach of New Zealand courts has been to treat freedom of the press as an integral feature of the right of all members of the public to seek, receive and impart information and opinions. The High Court in Solicitor-General v Radio New Zealand Ltd stated that “the right of freedom of the press is no more and no less than the right of all and any member of the public to make comment”.11 Likewise, in Television New Zealand Ltd v Attorney-General, Cooke P stated for the Court of Appeal:12
The freedom of the press is not separately specified in the New Zealand Bill of Rights, our Bill differing in that respect from s 2 of the Canadian Charter of Rights and Freedoms and the First Amendment in the United States, but it is an important adjunct of the rights concerning freedom of expression affirmed in s 14 of the New Zealand Bill of Rights Act. They include ‘the freedom to seek, receive, and impart information... Decisions of this Court have reflected the importance of media freedom, quite apart from the Bill of Rights’. Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1987] NZHC 377; [1988] 1 NZLR 129, 176 and Auckland Area Health Board v Television New Zealand Ltd [1992] NZCA 243; [1992] 3 NZLR 406 are two of the numerous examples which could be cited.
The situation under the International Covenant is slightly more complicated. The words of the Covenant do not expressly include the freedom of the press, although the argument adopted by New Zealand courts is again applicable. This must be correct, since Article 19(2) speaks of the right to impart information of any kind and in any way. The only difficulty lies in the fact that there is no jurisprudence in this area since complaints to the Human Rights Committee (HRC) under the First Optional Protocol to the ICCPR are limited to communications by individuals.13 It was on that basis that communications 360/1989 and 361/1989 were dismissed by the Committee as being inadmissible under the Optional Protocol.14 The communications involved claims by printing
10 Section 2(b) of the Canadian Charter of Rights and Freedoms 1982 guarantees, as a fundamental freedom, the: “Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.
11 Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48, 61.
12 Television New Zealand Ltd v Attorney-General [1995] 2 NZLR 641, 646.
13 See Alex Conte, Scott Davidson and Richard Burchill, Defining Civil and Political Rights. The Jurisprudence of the United Nations Human Rights Committee (London: Ashgate
Publishing Ltd, 2004), 18-21.
14 A Newspaper Publishing Company v Trinidad and Tobago, Human Rights Committee Communication 360/1989, UN Doc CCPR/C/36/D/360/1989 (1989); and A Publication and
companies, whose main purpose was to purchase and supply material to a publication company for the production, printing and publishing of weekly newspapers. Both communications were submitted on behalf of companies incorporated under the laws of Trinidad and Tobago. Under Article 1 of the Optional Protocol, only individuals are able to submit a communication to the Human Rights Committee. As such, the particular communications were found to be inadmissible.
Importantly, however, this does not invalidate the application of Article 19 to the freedom of the press. The effect of what has just been discussed simply means that only individuals, as opposed to media groups or corporations, may complain to the Human Rights Committee about interference with their freedom of expression. The freedom is still a right guaranteed under the Covenant and an obligation in respect of which New Zealand must, as a State party, comply. The non-justiciability of group rights under the optional complaints procedure established by the First Protocol must not be taken to exclude the application of rights to groups or other entities.
Limiting the Freedom of the Press when Responding to Terrorism
It can thus be concluded that control upon the media and its ability to publish or broadcast any matter is something that impacts upon the freedom of expression. In the language of the steps advocated by Paul Rishworth for application of sections 4, 5 and 6 of the NZBORA, the right being invoked (the freedom of expression) applies to the circumstances being complained of (the Prime Minister’s authority under sections 14 and 15 of the ITEPA).15 Because these provisions effect limitations upon the freedom of expression, the issue to then consider is whether the limitations are consistent with section 5 of the New Zealand Bill of Rights Act and the rights-specific limitations expressed within Article 19(3) of the ICCPR.
In its 1991 report on emergencies, the New Zealand Law Commission spoke of the generally accepted notion that only in the most exceptional circumstances is it desirable or necessary to control the media in its coverage of events.16 The report pointed to the siege of the Iranian Embassy in London in 1980 as a situation in which this almost arose. The police and
a Printing Company v Trinidad and Tobago, Human Rights Committee Communication 361/1989, UN Doc CCPR/C/36/D/361/1989 (1989), para 12.2.
15 Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand
Bill of Rights (Auckland: Oxford University Press, 2003), 135-157.
16 Kenneth Keith, Final Report on Emergencies (Wellington: New Zealand Law Commission Report 22, 1991), para 7.140.
SAS assault on the Embassy was filmed, although this was not broadcast live. In noting such occurrences, the report identified various factors that might call for media control, from the perspective of both dealing with an instant terrorist emergency and the longer-term implications of broadcasting and publication. On the subject of dealing with an actual terrorist incident, the report noted:17
Media coverage of terrorist events can compromise the efforts of the authorities to resolve those events and may also prejudice further responses to terrorist action. The primary concern is that the terrorist, by following the coverage of the incident, may be alerted to counteractive measures taken by the police and by the armed forces where they are involved. This forewarning may result in the failure of the operation and could place lives, of both anti- terrorist personnel and hostages (if any) at risk.
Other factors were also identified as having a potential impact upon the ability of authorities to deal with particular instances of terrorist activity.18 First was the obstruction of authorities by the physical presence of the media, although this is a matter that could apply to the physical presence of any person and is, in any event, dealt with under section 10 of the ITEPA.19 The Commissioner also identified that media representatives may become participants in an international terrorist event by communicating directly with the terrorists and thereby potentially undermining the conduct of authorities. Again, however, this is a matter that appears capable of being dealt with under the police powers to restrict entry and require evacuation of emergency areas under section 10 of the Act.
The report also makes the point that media coverage may have an impact outside the operation of a particular terrorist emergency.20 This might occur through terrorist organisations gaining tactical information and technical knowledge from the media coverage of counter-terrorist operations. Such coverage might also expose the identity of members of counter-terrorist forces and thereby expose them to the risk of attack by terrorists. These are clearly undesirable consequences and, as discussed next, go to the heart of the justifiability of sections 14 and 15 of the ITEPA.
17 Ibid, para 7.142-7.143.
18 Ibid, para 7.144.
19 See, infra, chapter 5.
20 Law Commission Report 22 (n 16), para 7.144.
Media Control as a Justifiable Limit to the Freedom of the Press
Having established the scope of the powers under sections 14 and 15 of the International Terrorism (Emergency Powers) Act 1987, their susceptibility to judicial review, and that they impact upon the freedom of expression, this part of the chapter examines whether the ITEPA provisions are consistent with section 5 of the New Zealand Bill of Rights Act and the rights-specific limitations expressed within Article 19(3) of the ICCPR.
Media Control and the ICCPR
Article 19(3) of the International Covenant on Civil and Political Rights sets out a number of rights-specific limitations as follows:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
A number of preliminary observations can be made. First, as recognised within the first sentence of paragraph (3), the exercise of freedom of expression carries with it special duties and responsibilities. This permits the imposition of restrictions upon the freedom, which may relate either to the interests of other persons (paragraph (3)(a)) or to those of the community as a whole (paragraph (3)(b)). Any restriction must be provided for by law, it must address one of the aims enumerated in paragraph (3)(a) and (b), and it must be necessary to achieve those legitimate purposes (as explained in the second sentence of Article 19(3)). The cumulative nature of these requirements was emphasised by the Human Rights Committee in Mukong v Cameroon.21 Any limitation must also be proportional and not implemented in a manner that nullifies the substance of the right to expression, as explained by the Committee in its General Comment on Article 19.22 Where a State seeks to justify a limitation as falling within the ambit of paragraph (3), the Human Rights Committee will require the State party to specify the precise nature of the threat allegedly posed by a
21 Mukong v Cameroon, Human Rights Committee Communication 458/1991, UN Doc CCPR/C/51/D/458/1991 (1994), para 9.7.
22 General Comment 10. Article 19, CCPR General Comment 10 of 1983, reprinted UN Doc
HRI\GEN\1\Rev.1 at 11 (1994), para 4.
person’s exercise of freedom of expression and how the limitation achieves dissipation of that threat.23
The question of limiting the freedom of expression on the basis of national security was considered in Park v Republic of Korea. Korea stated, in that communication, that the restrictions in question (prohibiting the “praising, encouraging, or siding with or through other means the activities of an anti-State organization”) were justified in order to protect national security, and that they were provided for by law under Article 7 of the National Security Law 1980 (Korea).24 Despite the potentially sensitive nature of security issues, the Committee took the view that it was nevertheless required to determine whether any measures taken were in fact necessary for the purpose stated. On the facts of the communication, the State party invoked national security by reference to the general situation in the country and the threat posed by “North Korean communists”. The Committee considered that the State had failed to specify the precise nature of the threat posed by the author’s exercise of freedom of expression and therefore found that there was no basis upon which the restriction could be considered compatible with Article 19(3).25
In contrast to the adverse aspects of this communication, the ITEPA deals with specific emergencies (declared by no fewer than three Ministers upon advice from the Commissioner of Police, on the particular facts, to constitute an “international terrorist emergency”).26 Applying the various requirements of paragraph (3) identified above, the first requirement is clearly met, since sections 14 and 15 set out restrictions imposed by law. Next, to satisfy paragraph (3), the provisions must be in pursuit of the aims expressed in subparagraphs (3)(a) and (b). Sections 14 and 15 appear to fit well within the aim of protecting national security and, equally, protecting public order or public health. The Prime Minister’s authority to restrict the media only arises where the information in question:
23 See, for example, Kim v Republic of Korea, Human Rights Committee Communication 574/1994, UN Doc CCPR/C/64/D/574/1994 (1999), para 12.5; Laptsevic v Belarus, Human Rights Committee Communication 780/1997, UN Doc CCPR/C/68/D/780/1997 (2000), para 8.5; and Pietrataroia v Uruguay, Human Rights Committee Communication r10.44/1979, para 17.
24 National Security Law 1980 (Korea), Art 7(1).
25 Park v Republic of Korea, Human Rights Committee Communication 628/1995, UN Doc CCPR/C/64/D/628/1995 (1998). See also Kim v Republic of Korea, Human Rights Committee Communication 574/1994, UN Doc CCPR/C/64/D/574/1994 (1999), para 10.3. 26 See further, infra, chapter 5.
Likewise, extension of such notices can only occur where:
The final requirement of paragraph (3) is that any limitation upon the freedom of expression be proportional and in response to specific identifiable threats caused by a continuance of the freedom. In the main, the author considers that proportionality is met, and it is clear that these measures can only apply to identified, and expressly declared, states of international terrorist emergencies. The only matter of concern relates to section 14(3) of the ITEPA, which permits the continuance of restrictions or prohibitions notwithstanding that the emergency has ended. A notice under section 14 automatically lasts for one year, unless earlier revoked by the Prime Minister.27 The restrictions can then be extended for five year periods under section 15(4) if renewal of the notice is necessary for the protection of any person or to avoid prejudice to measures designed to deal with terrorism. As identified earlier, the continued suppression of information may be necessary for the purpose of preventing the identification of counter-terrorist agents or to prevent terrorist organisations from gaining tactical or technical information on counter-terrorist operations and, to that extent, the ability for restrictions to apply after a state of emergency seems reasonable. At face value, then, this seems appropriate.
The only question that remains is whether the Prime Minister’s authority is subject to sufficient checks and balances. As concluded earlier, sections 14 and 15 are subject to judicial review. This might not give the media much comfort in the short-term, given the immediate effect of section 14 notices and the reality that judicial review will take time. One might observe, however, that the powers of the Prime Minister will only be activated during an “international terrorist emergency”, declared on the basis of consensus on the part of at least three Ministers of the Crown based upon advice from the Commissioner of Police). The New Zealand Law
27 Section 15(2) and (3) of the Act.
Commission identified that the gravity of the circumstances giving rise to such an emergency will vary, as will the threat posed by the publication or broadcasting of information.28
As noted by the Law Commission, the Human Rights Committee has levelled criticism at the media provisions of the ITEPA in its consideration of New Zealand’s reports under the ICCPR.29 In its observations on New Zealand’s second periodic report, the Committee noted that concerns raised by it during the examination of New Zealand’s report concerning the scope of the ITEPA had not been alleviated.30 The Committee expressed particular concern about the ‘closure provisions’ of the ITEPA media gags referring, it seems, to the means by which media gags may be discontinued. The ability to judicially review the continuance of notices and thereby allow such notices to be tested against the Article 19(3) grounds for limiting freedom of expression should, however, satisfy the Committee.
Media Control and Section 5 of the NZBORA
Turning now to the question of whether sections 14 and 15 of the ITEPA impose justifiable limits in accordance with section 5 of the NZBORA, the first consideration (the existence of an important objective) seems easy to answer. To the extent that media gags are issued for the purposes identified under sections 14(1) and (2) and 15(4) of the ITEPA, those objectives are clearly pressing and substantial. They not only deal with instant emergencies, but are also aimed at preserving the integrity of counter- terrorist operations, and the safety of persons. Such objectives clearly satisfy the first limb of the Oakes and Radio New Zealand limitations test.31 In applying the second, proportionality, limb of the section 5 test one must first be satisfied that the legislative provision is rationally connected to the achievement of the objective. Again, this seems easy to answer in the affirmative. The structure of sections 14 and 15 is such as to restrict or prohibit the publication or broadcasting of information likely to prejudice the safety of a person or the integrity of future counter-terrorist operations. The second proportionality factor requires the legislative provision to impair the right as little as reasonably possible. This goes to the question of whether sections 14 and 15 are the least intrusive means by which their
28 New Zealand Law Commission Report 22 (n 16), para 7.151.
29 Ibid, para 7.152.
30 Concluding observations of the Human Rights Committee: New Zealand, UN Doc CCPR/A/44/40 (1989), paras 393 and 402.
31 R v Oakes (1986) 26 DLR (4th) 200 (SCC); and Solicitor-General v Radio New Zealand Ltd (n 11).
objectives might be achieved. So long as safeguards exist against the improper use of these provisions, this paper takes the view the minimal impairment test is satisfied. The current statutory framework does not exclude judicial review of section 14 and 15 decisions and, as concluded above, these decisions are justiciable so that adequate safeguards against abuse are present. This conclusion goes to the final factor of the proportionality test also, rendering the effect of the provisions upon the freedom of the press proportional to the objectives of protecting the safety of persons and the ability to deal with future counter-terrorist operations. As such, sections 14 and 15 are ‘consistent’ with the New Zealand Bill of Rights Act 1990 and no further enquiry under Rishworth’s steps is required.
Conclusion
Sections 14 and 15 of the International Terrorism (Emergency Powers) Act 1987 stand as a rare example of media control by the State in counter- terrorism law and practice. Notwithstanding this, having regard to the susceptibility of ITEPA notices to judicial review and the purposes in respect of which notices may be made and extended, it has been concluded that these provisions are compliant with both the ICCPR and NZBORA. In a disappointingly brief and cursory examination of the ICCPR and NZBORA, the Law Commission’s 1991 report on emergencies concluded that media control under the ITEPA was ineffective. The Commission gave no reasons for this conclusion, other than that the Act was ‘cumbersome’ in determining whether a terrorist emergency exists.32 This does not, however, go to the question of whether the media control provisions are themselves effective.
The Commission also concluded that the encroachment of sections 14 and 15 upon the ICCPR and NZBORA was not justified, again without analysis as to how that conclusion was reached.33 The Final Report on Emergencies therefore recommended the repeal of sections 14 and 15, preferring a model by which voluntary guidelines be adopted by the media.34 With due respect to the then Commissioner, this author disagrees. Certainly, the provisions do limit freedom of the press, a freedom guaranteed by Article 19 of the ICCPR and section 14 of the NZBORA.
32 New Zealand Law Commission Report 22 (n 16), paras 7.160 and 7.161.
33 Ibid, 7.162.
34 Ibid.
However, the restricted purposes in respect of which media gags may be issued, combined with the availability of judicial review as a safeguard against abuse of the powers under the provisions, mean that the ITEPA provisions comply with the limitations provisions of Article 19(3) of the ICCPR and section 5 of the NZBORA.
Chapter 13
Freedom of Expression and the Incitement to Terrorism
This chapter considers the question of the incitement to terrorism, its proscription and the human rights implications of such proscription. It does so in the abstract to begin with, detailing international and European obligations and recommendations on the subject, and identifying safeguards against the potential for the criminalisation of the incitement to terrorism to unduly impinge upon rights and freedoms. Consideration is then given to applicable laws in New Zealand and the United Kingdom, which represent contrasting positions. The law in New Zealand, it will be concluded, is inadequate to deal with the problem of the incitement to transnational terrorism, while the applicable provisions in the UK’s Terrorism Act 2006 progress, in some important respects, beyond proper limits.
The Phenomenon of the Incitement to Terrorism
There have been numerous instances of incitement to, and glorification of, terrorism, some of which have been noted in chapter 2. The now well- known World Islamic Front Statement of 1998, the Jihad Against Jews and Crusaders, which purports to be a fatwa (a religious ruling) is a good example.1 It calls for the killing of Americans, claiming to base itself upon a call by Allah to “slay the pagans wherever ye find them, seize them, beleaguer them, and lie in wait for them in every stratagem (of war)”.2 The document concludes with the direction that:3
We - with Allah's help - call on every Muslim who believes in Allah and wishes to be rewarded to comply with Allah's order to kill the Americans and plunder their money wherever and whenever they find it. We also call on Muslim ulema, leaders, youths, and soldiers to launch the raid on Satan's US
1 World Islamic Front, Jihad Against Jews and Crusaders, 23 February 1998 (signed, amongst others, by Usama bin Laden), online: <http://www.fas.org/irp/world/para/ docs/980223-fatwa.htm> (last accessed 23 January 2005).
2 Ibid un-numbered para 1. The phrase is taken from The Holy Qura’an, 9:5.
3 Jihad Against Jews and Crusaders (n 1) un-numbered para 8.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
troops and the devil's supporters allying with them, and to displace those who are behind them so that they may learn a lesson.
While this fatwa is particularly directed towards Americans, due to the purported occupation and plundering by the United States of the Arabian Peninsula during its presence there during Operation Desert Storm in 1990 and Operation Desert Fox in 1998,4 the sentiment of the jihad is one that is opposed to modernity in general. Its desire is to eliminate modernity and return to the era when Islam formed a prosperous ummah (a community of Islamic believers) in the Middle East (and possibly beyond) without restriction by State borders – an era in which modernity was absent in the region.5 It is a particularly common tool of global jihadists.6
Following the commencement of the multi-national Operation Enduring Freedom in Afghanistan a further manifesto, issued by Salem Almakhi and first aired on Aljazeera in October 2002,7 announced a warning to Christians and members of the alliance waging war against Afghanistan and Al-Qaida.8 This most palpably applies to States participating in Operation Enduring Freedom, and might therefore be characterized as incitement of an insurgent nature, but it is also of much broader application. By identifying those acting against Al-Qaida, the warning conceivably also attaches to all those taking action against Usama bin Laden, the Taliban and Al-Qaida. Since all members of the United Nations are required to take action against those entities pursuant to various resolutions of the Security Council, and directions of the Security Council’s 1267 Sanctions Committee, the warning is at least in principle applicable to
4 Ibid un-numbered para 3.
5 See further Alex Conte and Boaz Ganor, Legal and Policy Issues in Establishing an International Framework for Human Rights Compliance When Countering Terrorism
(International Policy Institute for Counter-Terrorism, Herzlyia 2005), II(D)(3) and II(D)(4). 6 The International Policy Institute for Counter-Terrorism has written much on this subject. See, for example (all available online: <http://www.ict.org.il> ): Yoni Fighel and Yael Shahar, ‘The Al-Qaida-Hizballah Connection’ (26 February 2002); Yael Shahar, ‘Al- Qaida’s Asian Web’ (15 October 2002); Yoram Kahati, ‘The Continuing Al-Qaida Threat’ (10 May 2003); and Yoram Kahati and Yoni Fighel, ‘Osama bin Ladin as the New Prophet of Islam’ (15 July 2003).
7 Salem Almakhi, Mending the Hearts of the Believers, online:
<http://www.jihadonline.bravepages.com/mending.htm> (last accessed 22 August 2005). Salem Almakhi is said to be one of Usama bin Laden’s supporters and admirers, and personally knowledgeable of Al-Qaida operations: see Yoni Fighel and Yoram Kehati, ‘Analysis of Recent Al-Qaida Documents, Part 1’, Paper of the International Policy Institute (28 November 2002), online: <http://www.ict.org.il/articles/articledet.cfm?articleid+453>
(last accessed 1 July 2004).
8 Ibid un-numbered para 23.
all 191 members of the United Nations.9 The Sanctions Committee, which describes itself as “a key instrument in the fight against terrorism”,10 maintains a list of individuals and entities that are part of, or associated with, the Taliban, Al-Qaida and Usama bin Laden. UN member States are required to freeze funds and other financial resources, and ensure that their nationals do not make funds or financial resources available to such listed entities.11 The manifesto finally instructs:12
Anyone who possesses an arrow in his quiver, make haste and [shoot] it for the sake of Allah, and aim it at the enemies of religion – the Jews and the Christians...
In an audio tape aired by Aljazeera in 2003, a senior aide to Usama bin Laden, Ayman Zawahri, exhorted his audience with the following words:13
Oh Muslims! Carry out attacks against the embassies, companies, interests and officials of the US, Britain, Australia and Norway. Burn the ground under their feet.
A more recent video found in the hideout of Malaysian terrorist Noordin Mohamad Top contained the following threats:14
As long as you keep your troops in Iraq and Afghanistan and intimidate Muslim people, you will feel our intimidation... You will be the target of our next attack... Our enemy is America, Australia, England and Italy... We especially remind Australia that you, Downer and Howard, are killing Australia, leading it into darkness and misfortune and mujahedeen terror...
9 The Taliban/Al-Qaida Sanctions Committee was established under SC Res 1267, UN SCOR, 54th Sess, 4051st Mtg, UN Doc S/Res/1267 (1999), para 6.
10 See Security Council Committee Established Pursuant to Resolution 1267 (1999), Guidance for Reports Required of all States pursuant to paragraphs 6 and 12 of Resolution 1455 (2003), online: <http://www.un.org/Docs/sc/committees/1267/guidanc_en.pdf> (last accessed 15 August 2005).
11 See SC Res 1267, UN SCOR, 54th Sess, 4051st Mtg, UN Doc S/Res/1267 (1999), para
4(b); SC Res 1333, UN SCOR, 55th Sess, 4251st Mtg, UN Doc S/Res/1333 (2000), para 8(c); SC Res 1390, UN SCOR, 56th Sess, 4452nd Mtg, UN Doc S/Res/1390 (2002), para 2(a) in particular; and SC Res 1617, UN SCOR, 59th Sess, 5244th Mtg, UN Doc S/Res/1617 (2005). 12 Salem Almakhi (n 7) penultimate para.
13 Aljazeera, ‘New Al-Qaeda Tape Calls for Attacks’ (Aljazeera.net, 21 May 2003), online:
<http://english.aljazeera.net/NR/exeres/293D19D4-CBB9-4296-B158-D54246F6259E.htm> (last accessed 22 November 2005).
14 Associated Press, ‘Indonesia Video Warning on Terror’ (CNN.com International, 17 November 2005), online: <http://edition.cnn.com/2005/WORLD/asiapcf/11/16/ indonesia.terror.ap/> (last accessed 22 November 2005).
Criminalising the Incitement to Terrorism
There are two general means by which the incitement to terrorism may be criminalised. The first is by reactive means, where a person who has incited or glorified terrorism may be prosecuted as a party to a principal terrorist act. Many jurisdictions have such party offences, where the conduct of anyone who incites, counsels, or procures any person to commit an offence is also guilty of the offence. The second, proactive, means of criminalisation is one that seeks to create liability without needing to wait for a terrorist act to occur. A ‘proactive’ offence would criminalise the act of incitement itself as a primary, rather than secondary, offence.
The UN Office on Drugs and Crime (UNODC) Terrorism Prevention Branch takes the view that the general obligation of States to abstain from tolerating terrorist activities implies that they must adopt active measures in order to prevent those acts.15 As will be discussed in more detail, the adoption by States of a proactive approach in countering terrorism is also encouraged within resolutions of the General Assembly and Security Council.16 Security Council resolution 1373 (2001) in fact requires States to take proactive measures, paragraph 2(b) stating that member States shall: “Take the necessary steps to prevent the commission of terrorist acts...”.17
Notably, the prohibition against incitement is not unique. Article 3(1)(c)(iii) of the Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires States parties to establish as a criminal offence the intentional public incitement or inducement of others to commit any of the Article 3 offences, or to use narcotic drugs or psychotropic substances illicitly.18 The 1998 Statute of the International Criminal Court also contemplates criminal responsibility in the case of any
15 See the United Nations Office on Drugs and Crime, (Draft) Guide for the Legislative Incorporation and Implementation of the Universal Instruments Against Terrorism (Division of Treaty Affairs, Terrorism Prevention Branch, 2005 Draft), 106.
16 See: GA Res 58/136, UN GAOR, 58th sess, 77th plen mtg, UN Doc A/Res/58/136 (2003), paras 1 and 5; GA Res 58/140, UN GAOR; 58th sess, 77th plen mtg, UN Doc A/Res/58/140 (2003), para 2; GA Res 59/46, UN GAOR, 59th sess, 65th plen mtg, UN Doc A/Res/59/46 (2004), paras 13 and 15; GA Res 59/80, UN GAOR, 59th sess, 66th plen mtg, UN Doc A/Res/59/80 (2004), paras 1 and 2 (see also newly adopted GA resolutions 60/43, 60/73 and
60/78); SC Res 1456, UN SCOR, 4668th mtg, UN Doc S/Res/1456 (2003), para 5; SC Res
1566, UN SCOR, 5053rd mtg, UN Doc S/Res/1566 (2004), para 2; SC Res 1618, UN SCOR,
5246th mtg, UN Doc S/Res/1618 (2005), para 6; and SC Res 1624, UN SCOR, 5261st mtg, UN Doc S/Res/1456 (2005), paras 1, 2 and 3.
17 SC Res 1373, UN SCOR, 4385th mtg, UN Doc S/Res/1373 (2001), para 2(b).
18 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature 14 December 1984, 28 ILM 493 (entered into force 11 November 1990).
person who: “In respect of the crime of genocide, directly and publicly incites others to commit genocide”.19 Similarly, Article 20(2) of the International Covenant on Civil and Political Rights requires States to prohibit the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
International and Regional Anti-Terrorism Obligations and Recommendations
There is currently no common obligation upon States to proscribe the incitement to terrorism. The matter is not addressed within any of the 12 extant universal terrorism-related conventions (nor within the newly adopted Suppression of Nuclear Terrorism Convention).20 It is, however,
19 Statute of the International Criminal Court, opened for signature 17 July 1988, 2187 UNTS 90, entered into force 1 July 2002), Art 25(3)(e).
20 The latter convention, the International Convention for the Suppression of Acts of Nuclear Terrorism, was adopted by the United Nations General Assembly and opened for signature under GA Res 59/290, UN GAOR, 59th sess, 91st plen mtg, UN Doc A/Res/59/290 (2005). The other 12 universal conventions on anti-terrorism are: [on the subject of the safety of aviation] the Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention), opened for signature 14 September 1963, 704 UNTS 219 (entered into
force 4 December 1969), the Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention), opened for signature 16 December 1970, 860 UNTS 105 (entered into force 14 October 1971), the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention), opened for signature 23 September 1971, 974 UNTS 177 (entered into force 26 January 1973), and the Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (Montreal Protocol), opened for signature 24 February 1988, ICAO Doc 9518 (entered into force 6 August 1989); [on the subject of maritime navigation and fixed platforms] the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (Rome Convention), opened for signature 10 March 1988, 1678 UNTS 221 (entered into force 1 March 1992), and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (Rome Protocol), opened for signature 10 March 1988, 1678 UNTS 304 (entered into force 1 March 1992); [on the protection of persons] the Convention on the Prevention and Punishment of Crimes against International Protected Persons, including Diplomatic Agents, opened for signature 14 December 1973, 1035 UNTS 167 (entered into force 20 February 1977), and the International Convention against the Taking of Hostages (Hostages Convention), opened for signature 18 December 1979, 1316 UNTS 205 (entered into force 3 June 1983); and [related to the means of perpetrating and advancing terrorism] the Convention on the Physical Protection of Nuclear Material (Nuclear Materials Convention), opened for signature 3 March 1980, 1456 UNTS
124 (entered into force 8 February 1987), the Convention on the Marking of Plastic Explosives for the Purpose of Detection (Plastic Explosives Convention), opened for signature 1 March 1991, ICAO Doc 9571 (entered into force 21 June 1998), the International Convention for the Suppression of Terrorist Bombing (Suppression of Bombing Convention), opened for signature 12 January 1998, 2149 UNTS 286 (entered into
required of States parties to the 2005 Council of Europe Convention on the Prevention of Terrorism, which is not yet in force but in respect of which the United Kingdom was an original signatory.21 Within the United Nations framework, the subject is addressed in resolutions of the UN General Assembly and Security Council.
Turning first to the resolutions of the United Nations, General Assembly resolution 40/61 (1985) calls on UN member States to refrain from organising, instigating, assisting or participating in terrorist acts in other States, or “in acquiescing in activities within their territory directed towards the commission of such acts”.22 Again, the UNODC Terrorism Prevention Branch takes the view that this portends that active measures of prevention and suppression must be taken.23 Similarly, the Declaration on Measures to Eliminate International Terrorism, adopted by the General Assembly in 1994 and subsequently reaffirmed on an almost annual basis, calls for States:24
To refrain from organizing, instigating, facilitating, financing, encouraging or tolerating terrorist activities and to take appropriate practical measures to ensure that their respective territories are not used for terrorist installations or training camps, or for the preparation or organization of terrorist acts intended to be committed against other States or their citizens; (emphasis added).
The emphasised portions of the extract can be taken to support a proactive approach in countering terrorism, and emphasise the need to suppress terrorism against other States. Any criminalisation of the incitement to terrorism needs, therefore, to be both applicable within the territory of the State and also outwardly looking. Added to this, General Assembly
force 23 May 2001), and the International Convention for the Suppression of the Financing of Terrorism (Suppression of Financing Convention), opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992).
21 Council of Europe Convention on the Prevention of Terrorism, opened for signature 16 May 2005, CETS 196 (not yet entered into force). The proscription against the incitement to
terrorism is set out in Article 5. The Convention requires 6 ratifications to enter into force but, as at 30 June 2006, has only been ratified by Russia – see Council of Europe, Fight against terrorism, online: <http://www.coe.int/T/E/Legal_affairs/Legal_co-operation/ Fight_against_terrorism> (last accessed on 30 June 2006).
22 GA Res 40/61, UN GAOR, 40th sess, 108th plen mtg, UN Doc A/Res/40/61 (1985), para 6.
23 (Draft) Legislative Guide (n 15) 107.
24 Declaration on Measures to Eliminate International Terrorism, adopted under GA Res 49/60, UN GAOR, 49th Sess, 84th Plen Mtg, UN Doc A/Res/49/60 (1994), para 5(a).
resolution 59/195 (2004): “condemns the incitement ethnic hatred, violence and terrorism”.25 Naturally, it has to be acknowledged that resolutions of the General Assembly are recommendatory only.26 It might be argued, given the consistent pattern of reaffirming the Declaration on Measures to Eliminate International Terrorism for a decade now,27 that the calls for action within the Declaration form part of customary international law. Such an assertion, however, would need to be treated carefully.28 Suffice it to say, for the purposes of this chapter, that there have been repeated calls for States to be proactive in their countering of terrorism, including the incitement thereof.
As far as the Security Council is concerned, two of its resolutions address the issue of incitement to terrorism. The first is resolution 1373 (2001), in which paragraph 5(3) declares:29
...that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations; (emphasis added).
Paragraph 1 of resolution 1624 (2005) is even more direct, providing that the Security Council:30
Calls upon all States to adopt such measures as may be necessary and appropriate and in accordance with their obligations under international law to
25 GA Res 59/195, UN GAOR, 59th sess, 74th plen mtg, UN Doc A/Res/59/195 (2004), para 12.
26 Charter of the United Nations 1945, Article 10.
27 The Declaration was reaffirmed in the following two years, with a Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism adopted in 1996: GA Res 51/210, UN GAOR, 51st Sess, 88th Plen Mtg, UN Doc A/Res/51/210 (1996), Annex. The Declaration and Supplement were reaffirmed within: GA Res 52/165, UN GAOR, 52nd Sess, 72nd Plen Mtg, UN Doc A/Res/52/165 (1997), para 7; GA Res 54/100, UN GAOR, 54th Sess, 75th Plen Mtg UN Doc A/Res/54/100 (1999), para 8; GA Res 55/158, UN GAOR, 55th Sess, 84th Plen Mtg, UN Doc A/Res/55/158 (2000), para 9; GA Res 56/88, UN GAOR, 56th Sess, 85th Plen Mtg, UN Doc A/Res/56/88 (2001), para 10;
GA Res 57/27, UN GAOR, 57th Sess, 52nd Plen Mtg, UN Doc A/Res/57/27 (2002), para 10; GA Res 58/81, UN GAOR, 58th Sess, 72nd Plen Mtg, UN Doc A/Res/58/81 (2003), para 10; and GA Res 59/46, UN GAOR, 59th Sess, 65th Plen Mtg, UN Doc A/Res/59/46 (2004), para 12.
28 For that to be the case, it would need to be shown that the relevant provision(s) of the
declaration represent the conduct of States, such conduct being undertaken out of a sense of legal obligation (opinio juris): see the Statute of the International Court of Justice, opened for signature 26 June 1945 (entered into force 24 October 1945), Art 38(1)(b).
29 SC Res 1373 (n 17).
30 SC Res 1624, UN SCOR, 5261st mtg, UN Doc S/Res/1456 (2005).
(a) Prohibit by law incitement to commit a terrorist act or acts;
(b) Prevent such conduct;
It should be noted that, although Article 25 of the Charter of the United Nations directs Member States to comply with decisions of the Security Council, the particular wording of the latter provisions are not couched in mandatory language and do not, therefore, have binding effect.31 As statements emanating from the body of the United Nations responsible for the maintenance of international peace and security, however, they should be treated as highly persuasive.
The universal instruments related to terrorism specify that the penalties for terrorism offences must be serious, and in conformity with the principle of proportionality as between the gravity of the sanction and the gravity of the act. The Hague Convention, for example, requires States parties to impose “severe penalties” in the event of the hijacking of an aircraft, and the Convention for the Suppression of the Financing of Terrorism calls on States parties to adopt measures necessary to “make those offences punishable by appropriate penalties which take into account the grave nature of the offences”.32 While acknowledging that determining the level of sanctions is a matter for each member of the United Nations (recognising the sovereign independence of each State), the UNODC (Draft) Legislative Guide on countering terrorism advocates that: “The sanctioning system must be particularly dissuasive and have heavy sentences for the perpetrators of such acts”.33
31 On this point, see the decision of the International Court of Justice on the effect of mandatory versus exhortatory provisions within resolutions of the Security Council in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1990), Advisory Opinion (1971) ICJ Rep, 49 ILR 2.
32 Convention for the Suppression of Unlawful Seizure of Aircraft (n 20) Article 2; Convention for the Suppression of the Financing of Terrorism (n 20) Article 4. See also the Convention on the Prevention and Punishment of Crimes Against Internationally Protected
Persons, including Diplomatic Agents (n 20) which requires each State Party to penalise and to impose “appropriate penalties which take into account their grave nature” (Article 2(2)); the Convention Against the Taking of Hostages (n 20) which indicates that each State shall punish the offences set forth “by appropriate penalties which take into account the grave nature of those offences” (Article 2); the same applies to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (n 20) Article 5, and the Convention for the Suppression of Terrorist Bombings (n 20) Article 4(b).
33 UNODC (Draft) Legislative Guide (n 15) 104.
The Council of Europe Convention on the Prevention of Terrorism, adopted on 16 May 2005, requires States parties to criminalise the unlawful and intentional “public provocation to commit a terrorist offence”, defining that phrase in Article 5(1) as:34
...the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.
The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has expressed the view that this provision represents a best practice in defining the proscription of the incitement to terrorism.35 Although the Convention is a regional instrument, the proscription in Article 5 was the result of careful negotiation. In defining what amounts to a “public provocation to commit a terrorist offence”, Article 5 contains three elements. There must first be an act of communication (“the distribution, or otherwise making available, of a message to the public..”). Secondly, there must be a subjective intention on the part of the person to incite terrorism (“...with the intent to incite the commission of a terrorist offence...whether or not directly advocating terrorist offences...”). Finally, there must be an additional objective danger that the person’s conduct will incite terrorism (“...where such conduct... causes danger that one or more such offences may be committed”). The latter objective requirement separates the incitement to terrorism from an act of glorification of terrorism. The requirement of intention in Article 5(2) reaffirms the subjective element within the definition of public provocation to commit a terrorist offence and requires the act of communication to be intentional also.
Of note, Article 8 clarifies that a terrorist offence need not actually be committed for the provocation of such offending to amount to conduct proscribed under Article 5. The offence is thus proactive in nature. Of note also, the term “terrorist offence” is defined under Article 1 as any of the offences within 10 of the 12 anti-terrorism conventions in force (excluding the Tokyo Convention and the Convention on the Marking of Plastic Explosives). The latter convention is properly omitted as a ‘trigger offence’
34 Council of Europe Convention on the Prevention of Terrorism (n 21) Article 5.
35 Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, Australia: Study on Human Rights Compliance While Countering Terrorism, UN Doc A/HRC/4/26/Add.3 (2006), paras 26-27.
treaty, since it does not proscribe any conduct, but instead places obligations upon States relating to the marking of explosives. The Tokyo Convention was omitted due to the broad nature of the conduct proscribed under the treaty which, while criminalising terrorist conduct, also captures conduct with no bearing at all to terrorism (for example, conduct which may jeopardise good order on an aircraft).36
The Freedom of Expression
Having considered the obligations and recommendations concerning the suppression of terrorism and, more precisely, the incitement to terrorism, it is now necessary to examine the rival to such proscription: the freedom of expression. Consideration will be given to the International Covenant on Civil and Political Rights, as well as parallels within regional human rights instruments.
1. The International Covenant on Civil and Political Rights
Article 18(1) of the International Covenant on Civil and Political Rights guarantees the freedom of thought, mirrored in Article 19(1) of the Covenant as the right to hold opinions without interference.37 The freedom of expression (including the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers) is subsequently guaranteed under Article 19(2). Recognised within paragraph (3) of Article 19 is the fact that the exercise of the right to freedom of expression carries with it special duties and responsibilities permitting the imposition of restrictions upon the right, which may relate either to the interests of other persons or to those of the community as a whole:
Article 19
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
36 See further on this point the report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, Promotion and Protection of Human Rights, UN Doc E/CN.4/2006/98 (2006), paras 32-36.
Within the terms of paragraph (3), then, any restriction must cumulatively meet the following conditions: it must be provided for by law, it must address one of the aims enumerated in paragraph (3)(a) and (b) of Article 19, and it must be necessary to achieve those legitimate purposes. The cumulative nature of these requirements was emphasised by the Human Rights Committee (HRC) in Mukong v Cameroon.38 Any limitation must also be proportional and not implemented in a manner that nullifies the substance of the right to expression, as explained by the Committee in its General Comment on Article 19.39 Where a State seeks to justify a limitation as falling within the ambit of paragraph (3), the Human Rights Committee will require the State party to specify the precise nature of the threat allegedly posed by a person’s exercise of freedom of expression and how the limitation achieves dissipation of that threat.40
The question of limiting the freedom of expression on the basis of national security was considered in Park v Republic of Korea. Korea stated, in that communication, that the restrictions in question (prohibiting the “praising, encouraging, or siding with or through other means the activities of an anti-State organization”) were justified in order to protect national security, and that they were provided for by law under Article 7 of the National Security Law 1980 (Korea). Despite the potentially sensitive nature of security issues, the Committee took the view that it was nevertheless required to determine whether any measures taken were in fact necessary for the purpose stated. On the facts of the communication, the State party invoked national security by reference to the general situation in the country and the threat posed by “North Korean communists”. The Committee considered that the State had failed to specify the precise nature of the threat posed by the author’s exercise of freedom of expression and therefore found that there was no basis upon which the restriction could be considered compatible with Article 19(3).41
Added to the permissible limitations upon the freedom of expression within Article 19(3), and of even greater relevance to suppressing the
37 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
38 Mukong v Cameroon, Human Rights Committee Communication 458/1991, para 9.7.
39 General Comment 10. Article 19, CCPR General Comment 10 of 1983, reprinted UN Doc
HRI\GEN\1\Rev.1 at 11 (1994), para 4.
40 See, for example, Kim v Republic of Korea, Human Rights Committee Communication
574/1994, para 12.5; Laptsevic v Belarus, Human Rights Committee Communication 780/1997, para 8.5; and Pietrataroia v Uruguay, Human Rights Committee Communication r10.44/1979, para 17.
41 Park v Republic of Korea, Human Rights Committee Communication 628/1995. See also
Kim v Republic of Korea, Human Rights Committee Communication 574/1994, para 10.3.
incitement to terrorism, Article 20 demands a further ‘restriction’ by way of a prohibition against certain forms of expression:
Article 20
This is something that builds upon an early statement of the idea in the Universal Declaration of Human Rights.42 Article 7 of the Declaration provides that: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”. Article 20(2) of the ICCPR stands as a reflection of the context in which the document was negotiated (as a post-World War II human rights instrument),43 and of the importance attached to the principle of non-discrimination. It is noteworthy in the latter regard that Article 4 of the ICCPR provides that any derogation of rights in times of emergency may not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.44 In the context of terrorism and counter-terrorism, the Committee on the Elimination of Racial Discrimination has declared that the prohibition against racial discrimination is a peremptory norm of international law from which no derogation is permitted.45 If the Committee is correct in characterising the principle of non-discrimination as a peremptory one, this gives further weight to the prohibition in Article 20(2) of the ICCPR.
Significantly, Article 20(2) not only impacts upon an individual’s exercise of the freedom of expression, but also places a positive duty upon States parties to adopt the necessary legislative measures prohibiting the actions referred to in its provisions. Each of the paragraphs state that these forms of expression “shall be prohibited by law”. In this respect, the
42 Universal Declaration of Human Rights, as adopted by the United Nations General Assembly in its resolution GA Res 217(III)A, UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/Res/217(III)A.
43 Consider the parallel in German and Austrian law (required of both States under the post-
WWII Peace Treaties) prohibiting membership in, or glorification of, the National Socialist Party.
44 Emphasised in Human Rights Committee, States of Emergency (Article 4), CCPR General Comment 29 of 2001, reprinted UN Doc HRI/GEN/1/Rev.6 at 186 (2003), paras 8 and 16.
45 Committee on the Elimination of Racial Discrimination, “Statement on Racial
Discrimination and Measures to Combat Terrorism”, in Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 57th sess of the UNGA, Supplement 18, 61st sess of the CERD, UN Doc A/57/18, 107.
Human Rights Committee has expressed disappointment that many State party periodic reports show that in some States such actions are not prohibited by law and that there do not appear to be appropriate efforts to do so.46 For Article 20 to become fully effective, the HRC articulated a need for legislative proscriptions making it clear that propaganda and prohibited advocacy are contrary to public policy, and providing for an appropriate sanction in the case of violation.47 Lack of State action in this area is, interestingly, reflected in a lack of proper proscription of the incitement to terrorism by a number of States. This is the case in Australia, for example, and also in New Zealand (as will be discussed).48
As part of its practice under Article 40(4) of the ICCPR, the Human Rights Committee issued a General Comment on Article 20 of the Covenant for the guidance of States parties.49 Three points of particular relevance to this chapter were made. The first is that Article 20 contains a positive duty to prohibit incitement and propaganda, as identified. This is particularly relevant to the proactive approach to criminalising incitement advocated by the UNODC, and the General Assembly and Security Council calls for action in this area.
The second aspect of the General Comment concerns the Committee’s view on the compatibility of Article 20 with the freedom of expression (as guaranteed under Article 19 of the ICCPR). In describing the two provisions as fully compatible, the HRC emphasised that the exercise of the freedom of expression “carries with it special duties and responsibilities”.50 The final point, particularly pertinent to the transnational nature of terrorism and the incitement thereof, was the Committee’s clarification that the prohibition in Article 20 applies “whether such propaganda or advocacy has aims which are internal or external to the State concerned”. This reinforces a similar point made in the Declaration on Measures to Eliminate International Terrorism already discussed.51
For the sake of completeness, it is worth mentioning that the Committee made specific reference to the right of self-determination,
46 Human Rights Committee, General Comment 11. Article 20, CCPR General Comment 11
of 1983, reprinted UN Doc U.N. Doc. HRI\GEN\1\Rev.1 at 12 (1994), para 1.
47 Ibid para 2.
48 See the Special Rapporteur’s report on Australia (n 35) para 25.
49 General Comment 11 (n 46).
50 Ibid para 2.
51 Declaration on Measures to Eliminate International Terrorism (n 24) para 5(a).
recognising that Article 20 does not prohibit advocacy of the sovereign right of self-defence or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations.52 It is clear, however, that acts of terrorism are not justified as the means of achieving self-determination or any other objective. Early resolutions of the UN General Assembly addressing the issue of terrorism contained express affirmations of the principle of self-determination.53 Since the 1994 Declaration on Measures to Eliminate International Terrorism, however, the United Nations has been very clear that this does not legitimate the use of terrorism by those seeking to achieve self-determination.54 As such, this part of General Comment 11 should not be misunderstood as legitimating the advocacy of terrorism within the context of self-defence or self- determination.
In similar terms to the ICCPR, Article 10 of the European Convention on Human Rights guarantees the freedom of expression, subject to limitations prescribed by law and necessary in a democratic society.55 The European
52 General Comment 11 (n 46) para 2.
53 See, for example, GA Res 3034(XXVII), UN GAOR, 27th sess, 2114th plen sess, UN Doc A/Res/3034(XXVII) (1972), para 3, which urged States to solve the problem of terrorism by addressing the underlying issues leading to terrorist conduct and then reaffirmed: “...the inalienable right to self-determination and independence of all peoples under colonial and racist regimes and other forms of alien domination and upholds the legitimacy of their struggle, in particular the struggle of national liberation movements, in accordance with the purposes and principles of the Charter and the relevant resolutions of the organs of the United Nations”.
54 Para 1 of the Declaration provides that: “The States Members of the United Nations solemnly reaffirm their unequivocal condemnation of all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever and by whomever committed, including those which jeopardise the friendly relations among States and peoples and threaten the territorial integrity and security of States” [emphasis added]. The General Assembly was even more clear on this point in its Resolution 50/53, reiterating that: “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons are in any circumstances unjustifiable, whatever the considerations of a
political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them” [emphasis added]: GA Res 50/53, UN GAOR, 50th sess, 87th plen mtg, UN Doc A/Res/50/53 (1995), para 2. The Security Council has likewise directed that terrorism cannot be justified by any political, ideological or similar consideration: SC Res 1269, UN SCOR, 4053rd sess, UN Doc S/Res/1269 (1999), para 1; and SC Res 1566, UN SCOR, 5053rd sess, UN Doc S/Res/1566 (2004), para 3.
55 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).
Court of Human Rights has taken this to include not only ideas and information that are favourably received or regarded as inoffensive, but also those that “offend, shock or disturb”, unless they may be proscribed within the terms of Article 10(2).56 In Sener v Turkey, the European Court of Human Rights reiterated that there is little scope under Article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest, but continued:57
Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks... Finally, where such remarks incite people to violence, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression.
The Inter-American Convention on Human Rights also proscribes the incitement to violence or racial hatred, Article 13(5) providing:
Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.
These general limitations provisions are further reflected within Article 29(2) of the Universal Declaration of Human Rights, with paragraph (3) of that Article of particular relevance to the incitement to terrorism:
Options and Safeguards
The incitement to terrorism is becoming a common tool of terrorist organisations. As opposed to that, all UN members are under an obligation to prevent the commission of terrorist acts, and have been urged and called
56 See, for example, Lingens v Austria ECtHR judgment of 8 July 1986.
57 ECtHR judgment of 18 July 2000, para 40.
upon by both the General Assembly and Security Council to prohibit the incitement to terrorism. In respect of the incitement of conduct that is both terrorist in nature and also amounts to genocide, the prohibition of such incitement is required of States parties to the Rome Statute of the International Criminal Court. Furthermore, States parties to the International Covenant on Civil and Political Rights are obliged to criminalise the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Those European States that become party to the Council of Europe Convention on the Prevention of Terrorism will be required to prohibit the unlawful and intentional public provocation to commit a terrorist offence, as defined within the Convention. Common to the latter three prohibitions is the proactive nature of the prohibitions, not requiring the act incited to have been committed for an offence to occur. Of general application, sanctions imposed for those convicted of the incitement to terrorism should be particularly dissuasive and in conformity with the principle of proportionality between the gravity of the sanction and the gravity of the act.
The freedom of expression may be limited to the extent necessary for the protection of national security, public order, or of public health or morals and does not justify the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Against the background of the points made within General Comment 11 of the Human Rights Committee, and having regard to the substantive requirements of Article 20(2) of the ICCPR, this paper concludes that the positive duty under Article 20(2) is particularly relevant to the issue of the incitement to terrorism. Article 20(2) prohibits “advocacy of national, racial or religious hatred...” (each aspect of which is promoted within the quoted incitements to terrorism above) “that constitutes incitement to discrimination, hostility or violence...” (again, each aspect of which is promoted within the quoted incitements to terrorism).
In responding to the problem of the incitement to terrorism, the first option available to States is to implement a general proscription of incitement to discrimination, hostility or violence through the advocacy of national, racial or religious hatred, in compliance with the obligation under Article 20(2) of the ICCPR. Such a proscription would capture conduct amounting to the incitement to terrorism. Reflecting the more general nature of such a proscription, however, the maximum penalties for such offending would need to be limited. This may not impose a sufficiently appropriate level of sanction, given the calls for terrorist offending to be punished by heavy sentences. The better approach, it seems, is for States to
criminalise the particular conduct of incitement to terrorism, with an appropriately corresponding criminal sanction.
The most important question concerning the criminalisation of the incitement to terrorism is the description of the proscribed conduct. Reference to various provisions of the ICCPR, together with elements drawn from commentaries and a comparison of relevant international instruments, leads to the identification of a number of ‘safeguards’ applicable to the description of the proscribed conduct. Drawing from these sources, this chapter identifies seven safeguards applicable to ensuring that any proscription of the incitement to terrorism is compliant with international human rights standards. In the New Zealand context, such compliance would also render the proscription a justifiable limitation upon the freedom of expression, within the terms of section 5 of the New Zealand Bill of Rights Act 1990. Similarly, compliance with these safeguards will also ensure that the United Kingdom is compliant with the European Convention on Human Rights and its own Human Rights Act 1993.
Any proscription of the incitement to terrorism is likely to fall within the requirement under Article 20(2) to prohibit the incitement to discrimination, hostility or violence through the advocacy of national, racial or religious hatred. It is conceivable, however, that a proscription against the incitement to terrorism will go further than this. Where that is the case, States will need to ensure that the formulation of the proscription is in compliance with the provisions of Article 19(3). This means that a formulation going beyond the bounds of Article 20(2) will need to be “for the protection of national security or of public order (ordre public), or of public health or morals” (Article 19(3)(b)).
Of relevance to the formulation of any criminal offence provision is Article 15(1) of the ICCPR, which sets out various standards pertaining to the legality of criminal law proscriptions. The first of its requirements means that any prohibition against the incitement to terrorism must be undertaken by national or international prescriptions of law. To be ‘prescribed by law’ the prohibition must be framed in such a way that the law is adequately accessible (so that the individual has a proper indication of how the law limits his or her conduct) and is formulated with sufficient precision (so that the
individual can regulate his or her conduct). These two requirements were held by the European Court of Human Rights to flow from the expression ‘prescribed by law’ in the Sunday Times case of 1978, with similar explanations given by the Human Rights Committee and other documentation on rights limitations.58 Terrorism offences should also plainly set out what elements of the crime make it a terrorist crime. Similarly, where any offences are linked to “terrorist acts”, there must be a clear definition of what constitutes such acts.59 The latter point is particularly significant in ‘safeguard 3’ below.
On a more general note, the Sub-Commission Special Rapporteur on human rights and counter-terrorism has commented that: “States must ensure that the expression of alternative political views, as well as peaceful meetings, are permitted...”.60 This is particularly relevant to the framing of any proscription against incitement to terrorism, to ensure that the wording of the proscription is not so broad as to capture legitimate expressions or peaceful meetings.
Precision also raises the question of the permissible bounds of the prohibition against the incitement to terrorism. A concerning trend has been the proscription of the glorification (apologie) of terrorism, involving statements which may not go so far as to incite or promote the commission of terrorist acts, but might nevertheless applaud past acts. While such statements might offend the sensibilities of persons and society, particularly the victims of terrorist acts, it is important that vague terms such as “glorifying” or “promoting” terrorism are not used when restricting expression. A joint declaration of experts on freedom of expression explains that “[i]ncitement should be understood as a direct call to engage in terrorism, with the intention that this should promote terrorism, and in a
58 See: Sunday Times v United Kingdom [1979] ECHR 1; (1978) 58 ILR 491, 524-527; Human Rights Committee, States of Emergency (Article 4) (n 46) para 16; United Nations Economic and Social Council Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4 (1985), paras 15 and 17; Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, Doc OEA/Ser.L/V/II.116 (22 October 2002), para 53; and Council of Europe, Guidelines on Human Rights and the Fight Against Terrorism, (Council of Europe Publishing, 2002), Guideline III.
59 Special Rapporteur, Promotion and Protection of Human Rights (n 36) paras 45-46.
60 Sub-Commission on the Protection and Promotion of Human Rights, A Preliminary Framework Draft of Principles and Guidelines Concerning Human Rights and Terrorism, E/CN.4/Sub.2/2005/39 (2005), para 55 comment.
context in which the call is directly causally responsible for increasing the actual likelihood of a terrorist act occurring”.61
Arising from the need for precision, and to avoid use of the fight against terrorism as an excuse to unnecessarily extend the reach of criminal law, it is essential that any offence directed to the incitement of terrorism (as opposed to a general incitement offence) be limited to countering terrorism, and the incitement of conduct which is truly ‘terrorist’ in nature.62 This is a matter that has been identified and discussed in chapter 7, and will be further considered in chapter 16.
A matter required by Article 26 of the ICCPR, and by the rule of law, is the need for any legal prescription to respect the principle of non- discrimination and equality before the law. As discussed, Article 4(1) of the ICCPR provides that any derogation of rights in times of an emergency threatening the life of the nation may not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.63 The General Assembly and Commission on Human Rights have, in their latest resolutions on the protection of human rights and fundamental freedoms while countering terrorism, stressed that the enjoyment of rights must be without distinction upon such grounds.64 The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism has also emphasised this requirement.65
61 See the joint declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression, 21 December 2005.
62 Special Rapporteur, Promotion and Protection of Human Rights (n 36) para 47. See also
two reports of the Sub-Commission on the Protection and Promotion of Human Rights: Final Report of the Special Rapporteur on Terrorism and Human Rights, E/CN.4/Sub.2/2004/40 (2004), para 33(c); and A Preliminary Framework, ibid para 33.
63 See also Human Rights Committee, States of Emergency (Article 4) (n 46) paras 8 and 16.
64 GA Res 59/191, UN GAOR, 59th sess, 74th plen mtg, UN Doc A/Res/59/191 (2004), preambular para 12, and CHR Res 2005/80, 61st sess, 60th mtg, UN Doc E/CN.4/Res/2005/80, preambular para 15.
65 Promotion and Protection of Human Rights (n 36) para 48.
A further element of Article 15 of ICCPR concerns non-retroactivity. Any provision defining a crime must not criminalise conduct that occurred prior to its entry into force as applicable law. Likewise, any penalties are to be limited to those applicable at the time that any offence was committed and, if the law has subsequently provided for the imposition of a lighter penalty, the offender must be given the benefit of the lighter penalty. In the context of counter-terrorism, these are, again, matters reiterated by the Special Rapporteur.66
The Council of Europe Convention on the Prevention of Terrorism requires States to proscribe the unlawful and intentional public provocation to commit a terrorist offence. The explanatory report to the Convention clarifies that the term ‘unlawful’ is used in order to leave any conduct undertaken pursuant to lawful government authority unaffected, and to also preserve the application of any legal defences or principles leading to the exclusion of criminal liability.67 This would preserve the ability, for example, to claim a defence of duress where an individual is compelled to make an inciting public statement upon a threat of harm to the person or his or her family.
While desirable, the inclusion of this element is not required of any universal anti-terrorism or human rights instrument, nor advocated by any resolution of the General Assembly or Security Council. The Special Rapporteur has, however, identified the Council of Europe Convention proscription against the incitement to terrorism as an instance of best practice, and proscription of ‘unlawful’ incitement is therefore to be preferred.68
A matter of some uncertainty is whether intention should form an express element of any proscription of the incitement to terrorism. This is not addressed within the resolutions of the General Assembly or Security
66 Ibid para 49.
67 Council of Europe, Explanatory Report to the Council of Europe Convention on the Prevention of Terrorism, online: <http://www.conventions.coe.int/Treaty/EN/ Reports/Html/196.htm> (last accessed 20 December 2005), paras 81-83.
68 Special Rapporteur, Australia Study (n 35) paras 26-27.
Council. Intention is an element of the Council of Europe Convention on the Prevention of Terrorism, but not expressed to be so within the ICCPR or Rome Statute of the International Criminal Court.
The Council of Europe Convention, Article 5(1), defines the public provocation to commit a terrorist offence as “the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct...” (emphasis added). Article 5(2) then requires any public act of provocation to be intentional. As explained earlier, this means that the act of communication must also be intentional.69 In contrast, Article 20(2) of the ICCPR requires States parties to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence...” (thus requiring a purely objective assessment of whether the advocacy constitutes incitement). Similarly, the Rome Statute, Article 25(3)(e), requires a person to be made criminally responsible if he or she “directly and publicly incites others to commit genocide” (leaving out any mention of intention in this list of participation offences, many of which do expressly require intention as an element of the offence).
Notwithstanding the neutral language of the ICCPR and the Rome Statute, three matters point to the desirability of intention forming an element of the offence of incitement to terrorism. The first concerns the nature of criminal law and the general presumption against strict liability offences, being offences where the intent of the perpetrator is not relevant to the issue of guilt. Strict liability offences are an exception to the general rule that criminal offending requires both an actus reus (an act or omission constituting the physical element(s) of the offence) and a mens rea (an intention on the part of the actor to certain ends). This presumption is borne out in the rule of many common law jurisdictions, including New Zealand and the United Kingdom, that when a statute does not employ terms expressly importing the need for mens rea, the element of mens rea is nevertheless to be implied as an ingredient of the offence, unless there is sufficient reason to the contrary. The New Zealand Court of Appeal, for example, has accepted that it is “a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted”.70 A need for the prosecution to establish mens rea is particularly likely when the offence is ‘serious’ or ‘truly criminal’, rather than being a ‘public welfare’ or
69 See also the Special Rapporteur’s view to this effect, ibid para 30.
70 Civil Aviation Dept v MacKenzie [1983] NZLR 78 (CA), 81.
‘regulatory’ offence.71 This approach can also been seen in the international context. Article 5 of the Statute of the International Criminal Tribunal for former Yugoslavia, for example, sets out the Tribunal’s jurisdiction over crimes against humanity without any mention of intent.72 The Tribunal has nevertheless ruled that intent is an element of the offence to be proved by the prosecutor.73
The second matter calling for the inclusion of intention as an element of any offence relates to the text of the Council of Europe Convention. The Convention is the only treaty proscribing the incitement to terrorism and it is therefore not insignificant that the negotiating parties agreed upon a double requirement of intent to incite, with an objective danger that a terrorist offence might result. A final matter for consideration is the issue of certainty, as required by Article 15 of the ICCPR. Although this is a question to be answered upon consideration of the particular words of any offence provision, the absence of intent may mean that such a provision is applicable to so broad a range of conduct that certainty is not achieved. Given the general presumption in favour of requiring intent for non- regulatory offences, the need for certainty, and the presence of intent within the only agreed-upon treaty definition of the incitement to terrorism, it seems safe to assert that intent should form an element of any proscription of the incitement to terrorism.
Given the call for dissuasive penalties to be applied in the sentencing of terrorist offenders, it appears to be prudent for States to criminalise the particular conduct of incitement to terrorism, with an appropriately corresponding range of criminal sanctions, rather than leaving this to a more general prohibition against incitement. Although the formulation of any particular proscription of the incitement to terrorism is a matter for each State to determine, seven safeguards or minimum requirements have been identified. First, any proscription must not limit the freedom of expression any more than permitted by Article 19(3) of the ICCPR (i.e. no more than necessary for the protection of national security, public order, or of public health or morals). Second, the proscription must be adequately
71 Consider, for example, the position to this effect in New Zealand: Millar v MOT [1986] 1 NZLR 660 (CA), 666.
72 Statute of the International Criminal Tribunal for former Yugoslavia, adopted on 23 May
1993 by SC Res 827, UN SCOR, 3217th mtg, UN Doc S/Res/827 (1993).
73 See, for example, Prosecutor v Kupreskic Trial Chamber Case IT-95-16-T (14 January 2000), para 556.
accessible and expressed in a precise manner so that the public is clear on what conduct is being prohibited. Next, and in the absence of a comprehensive and universal definition of ‘terrorism’, the incitement to terrorism should be limited in its application to the incitement of: (a) acts committed with the intention of causing death or serious bodily injury, or the taking of hostages; (b) for the purpose of provoking a state of terror, intimidating a population, or compelling a government or international organization to do or abstain from doing any act; and (c) constituting offences within the scope of and as defined in the international conventions and protocols relating to terrorism. Fourth in the list of safeguards, any proscription must be expressed in a manner that respects the principle of non-discrimination. A proscription must not apply retroactively, and it should be expressed as the ‘unlawful’ incitement to terrorism, thus preserving any applicable legal defences. Finally, the proscription should be expressed as the ‘intentional’ incitement to terrorism, thus expressly incorporating an element of mens rea and requiring an intention on the part of the person to incite the commission of a terrorist offence.
New Zealand Law
New Zealand is a member of the United Nations and party to the twelve extant anti-terrorism conventions, and to the International Covenant on Civil and Political Rights. The main body of law on counter-terrorism in New Zealand is to be found in the Terrorism Suppression Act 2002, in which appear a total of ten terrorism offences. On the subject of the suppression of the financing of terrorism (relevant to the corresponding International Convention, and Security Council resolution 1373),74 the Act prohibits the financing of terrorism, dealing with terrorist property (having the effect of freezing that property), and making property, or financial or related services, available to designated entities.75 Related to three further international conventions on anti-terrorism,76 the Act makes it unlawful to undertake a terrorist bombing, to use or move unmarked plastic explosives, and creates two offences involving nuclear materials.77 It also prohibits
74 See the International Convention for the Suppression of the Financing of Terrorism (n 20); and SC Res 1373 (n 17).
75 Terrorism Suppression Act 2002, ss 8, 9 and 10.
76 The International Convention for the Suppression of Terrorist Bombings, the Convention on the Physical Protection of Nuclear Material, and the Convention on the Marking of Plastic Explosives for the Purpose of Detection (n 20).
77 Terrorism Suppression Act 2002, ss 7, 13B, 13C and 13D.
recruiting members of terrorist groups, participating in terrorist groups, and harbouring or concealing terrorists.78 Amendment of the Crimes Act 1961 in 2003 saw the introduction of new sections 298A, 298B and 307A, making it an offence to cause disease or sickness in animals; contaminate food, crops, water or other products; or make threats of harm to people or property to achieve terrorist ends.
New Zealand’s Law On and Relevant to Incitement
Although New Zealand does not have a specific offence dealing with the incitement of terrorist conduct, provisions within the Human Rights Act 1993 and the Crimes Act 1961 are of relevance.
The Human Rights Act 1993 prohibits threatening, abusive or insulting publications or speech likely “to excite hostility against or bring into contempt” any group of persons on the grounds of discrimination.79 It is, in that regard, similar to the prohibition in Article 20(2) of the ICCPR but is more limited in its potential application to the incitement of terrorism. The first limitation concerns a jurisdictional restriction. The prohibition only applies to such conduct that excites hostility against persons in New Zealand (or who may be coming to New Zealand).80 Jurisdictional limitations such as this fail to address the need for States to prohibit the incitement to terrorism (and to hostility or violence more generally) both within their own borders and those of other States.
The second limitation is that the prohibition is restricted to the incitement of discrimination and hostility. It does not prohibit incitement to violence, although it should be acknowledged that ‘violence’ is conceivably captured within the scope of ‘hostility’. The prohibited conduct under the Human Rights Act is that which, inter alia, is: “likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons”. Furthermore, the maximum penalty for the offence of incitement under the Human Rights Act is a term of imprisonment not exceeding 3 months, or a fine not exceeding $7,000.81
78 Terrorism Suppression Act 2002, ss 12, 13 and 13A.
79 Human Rights Act 1993, ss 61 and 63.
80 Human Rights Act 1993, s 61(1).
81 Human Rights Act 1993, s 131(1).
This maximum sentence does not meet with the call for heavy sentences against those involved in terrorism.
Party offences are created under section 66(1)(d) of the Crimes Act 1961, such that the conduct of anyone who “incites, counsels, or procures any person to commit an offence” is also guilty of the principal offence. Thus, a person who has incited the commission of any of the terrorism offences under New Zealand law, as identified, would be liable for prosecution. The point to be made is that this is a ‘reactive’ form of criminalisation, rather than the proactive criminalisation of the incitement to terrorism called for. To be guilty of an offence under section 66(1)(d), the principal offence (including an act of terrorism) must have actually been committed.82
Section 311 of the Crimes Act is the corollary to party offences under section 66(1)(d). Whereas party offences can only be committed where the principal offence has been carried out, section 311(2) prohibits the incitement, counselling, or attempt to procure any person to commit any offence, “when that offence is not in fact committed”. This would clearly capture the incitement of terrorist offences under New Zealand law.
However, in the way that section 311(1) can relate to terrorism-specific offences (none of which carry a sentence of life imprisonment), a person who incites, counsels, or attempts to procure the commission of such offences is liable to not more than half of the maximum punishment one would be liable for had the offence been committed. This form of secondary liability is likely grounded in the fact that section 311 applies only where the principal offence has not been committed, with the consequence that there is no victim (unlike the commission of party offences under section 66). As discussed, the UNODC ultimately takes the view that determining the precise level of sanctions is a matter for each State having regard to proportionality between the gravity of the act and the sanction imposed. Notwithstanding this, an observation to make is that incitement to terrorism (as referred to in the resolutions of the General Assembly and the Security Council) and incitement to hostility or violence (under Article 20(2) of the ICCPR) are treated as primary offences. It is thus questionable whether the reduced form of secondary liability provided
82 See R v Bowern [1915] NZGazLawRp 107; [1915] 34 NZLR 696 (CA).
for in section 311(1) is appropriate to deal with the procuring of terrorism offences.
Again relevant to the incitement to terrorism, section 81 of the Crimes Act 1961 defines a seditious intention as an intention: to incite, procure, or encourage violence, lawlessness, or disorder (section 81(1)(c)); or to incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order (section 81(1)(d)). An offence of ‘seditious conspiracy’ is then created through the combination of sections 81(3) and 82, such that an agreement between 2 or more persons to carry into execution any seditious intention makes a person liable to imprisonment for a term not exceeding two years.
Two limitations are identified within this regime. The maximum penalty for an offence of sedition is two years’ imprisonment, which probably fails to meet the call for heavy sentences. Also, an intention to incite those things identified in section 81(1)(c) and (d) only becomes an offence of sedition if two or more people agree to do so. The regime would thus fail to capture a person acting alone to incite terrorism (as has occurred in the examples cited earlier).
Amendment of the Crimes Act in 2003 saw the introduction of section 307A, which criminalises certain threats of harm to people or property. The making of such threats is again limited in its relevance to the incitement to terrorism. The threats must be ones that significantly disrupt matters relating to New Zealand (subsection (2)), thus failing to address the need for States to prohibit the incitement to terrorism both within their own borders and those of other States. Furthermore, the threats must have resulted in certain outcomes (subsection (3)), thus adopting a reactive rather than proactive approach. Most importantly, the prohibition relates to the making of threats, rather than the incitement of others to hostility, violence or terrorism and thus only criminalises acts of incitement that themselves contain threats falling within the jurisdiction of section 307A.
Jurisdictional Issues in New Zealand’s Applicable Law
The various offences described fall into one of the three categories. First are those offences committed entirely within the territory of New Zealand.
In such circumstances, by application of the offence provisions alone, there are no jurisdictional issues of concern. Next would be offences commenced (or completed) within the territory of New Zealand. By application of section 7 of the Crimes Act 1961, such offences are deemed to have been committed in New Zealand, whether or not the person charged with the offence was in New Zealand at the time of the relevant act, omission, or event. Finally are those offences that amount to a “terrorist act” (as defined by section 5(1) of the Terrorism Suppression Act 2002), and occur wholly outside New Zealand. By application of section 7A of the Crimes Act 1961, proceedings may be brought in respect of such acts if: (1) the person is a New Zealander or in New Zealand (section 7A(1)(a)); (2) any part of the offence occurs on any place in respect of which New Zealand has jurisdiction abroad (section 7A(1)(b)); or (3) the offence is perpetrated against a New Zealander (section 7A(1)(c)).
Added to this, the offences described are capable of dealing with the following persons or events overseas: (1) conduct falling within one of the defined terrorism offences relating to activities outside New Zealand (e.g. the prohibition against dealing with property owned or controlled by a designated terrorist entity, those entities all being outside New Zealand, as the position currently stands);83 or (2) being a party to the latter offences, procuring the commission of the latter offences, or undertaking a seditious conspiracy relating to the latter offences.
Notwithstanding this framework of jurisdiction, none of the offences described in this part of this paper are able to deal with the situation where a person incites others to commit terrorist acts abroad.
Summary and Evaluation of New Zealand’s Law on Incitement
Having regard to the practical relevance of the incitement to terrorism to New Zealand and the Pacific region, and to the international obligations and recommendations on the prohibition of the incitement to hostility, violence and terrorism, New Zealand’s criminal law appears deficient in a number of ways. The incitement offence under the Human Rights Act 1993 is limited in its jurisdictional application, by the fact that it does not expressly apply to the incitement of violence, and in the low level of maximum penalty upon conviction. Party offences under section 66(1)(d) of the Crimes Act 1961 are reactive, requiring an actual act of hostility, violence or terrorism to occur before proceedings can commence. Procuring offences under section 311 of the Crimes Act 1961 limit the
83 Terrorism Suppression Act 2002, s 9. Consider sections 14 to 19 of the Act in this regard.
maximum penalty upon conviction to not more than half of the relevant principal offence. Sedition offences under sections 81 and 82 of the Crimes Act 1961 have a maximum penalty of two years’ imprisonment upon conviction and do not capture a person acting alone to incite terrorism. The ‘threat of harm’ offence under section 307A of the Crimes Act 1961 is limited in its jurisdictional application, by the reactive approach of the offence, and the fact that it only criminalises acts of incitement that themselves contain threats falling within the jurisdiction of section 307A. Furthermore, despite New Zealand’s reasonably robust jurisdictional framework, none of the offences described are able to deal with the situation where a person incites others to commit terrorist acts abroad.
The United Kingdom’s Terrorism Act 2006
In contrast to New Zealand’s lack of legislative action on the subject of the incitement to terrorism, and the insufficiency of its current law to address the issue, the United Kingdom has introduced two proactive offences (the encouragement of terrorism, and the dissemination of terrorist publications) under the Terrorism Act 2006. The relevant provisions of the Act have changed since their original articulation within the Terrorism Bill (as presented to the House of Commons). The original version of the Bill proposed a third offence of “glorification of terrorism”, but this was removed before the Bill was brought for action by the House of Lords in November 2005. Subsequent debate saw further fine-tuning of the offence provisions.
Overview of the Terrorism Act Incitement Provisions
Sections 1 and 2 of the Terrorism Act 2006 set out the substantive offences of the encouragement to terrorism and the dissemination of terrorist publications, with sections 3 and 4 expanding upon the application of the offence provisions.
The offence of the encouragement of terrorism, under section 1 of the Act, comprises three elements. First, there must be an act of publishing a statement (or causing another to do so on the person’s behalf).84 A
84 Terrorism Act 2006, s 1(2)(a).
“statement” includes a communication of any description, including one without words consisting of sounds or images or both.85 “Publishing” a statement can occur in any manner, including provision of a statement by electronic means.86
Next, the published statement must be likely to be understood by members of the public to whom it is published (the public anywhere in the world)87 as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism.88 The offence is a proactive one, since it is irrelevant whether any person is in fact encouraged or induced by the statement.89 Statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism are deemed to include every statement which: “(a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and (b) is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances”.90 This is to be determined having regard to both the contents of the statement as a whole and the circumstances and manner of its publication.91 “Glorification” includes any form of praise or celebration.92
Finally, the person publishing such a statement must intend (at the time of publication) that the statement be understood in the way just described, or be reckless as to whether or not it is likely to be so understood.93 In the case of recklessness (where it is not proved that a person intended to directly or indirectly incite terrorism), it is a defence for a person to show:
(a) “that the statement neither expressed his views nor had his endorsement”; and “that it was clear, in all the circumstances, that it did not express his views and... did not have his endorsement”.94
85 Terrorism Act 2006, s 20(6).
86 Terrorism Act 2006, s 20(2) and (4).
87 Terrorism Act 2006, s 20(2) and (3).
88 Terrorism Act 2006, s 1(1). It is irrelevant, though, whether the statement directly relates
to the commission, preparation or instigation of one or more particular acts of terrorism or Convention offences: s 1(5)(a).
89 Terrorism Act 2006, s 1(5)(b).
90 Terrorism Act 2006, s 1(3).
91 Terrorism Act 2006, s 1(4).
92 Terrorism Act 2006, s 20(2).
93 Terrorism Act 2006, s 1(2)(b).
94 Terrorism Act 2006, s 1(6).
Section 2 of the Terrorism Act 2006 establishes an offence of the dissemination of terrorist publications. Dissemination includes various forms of distribution or transmission.95 For the purpose of section 2, a “publication” includes any article capable of storing data, or any record (permanent or otherwise) containing matter to be read, looked at, or listened to.96 A publication is a terrorist one in either of the following situations: firstly, where the information in the publication is likely to be understood by members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism (this expression is accorded the same meaning as under the encouragement of terrorism offence);97 or, secondly, where the information in the publication is likely to be useful in the commission or preparation of terrorist acts and to be understood, by some or all recipients, as having been made available wholly or mainly for the purpose of being useful in this way.98 Similar to the encouragement of terrorism offence, it is irrelevant whether dissemination results in the likely effects described, or whether the information is actually used for the commission or preparation of a terrorism act.99
As brought before the House of Lords in the Terrorism Bill 2005, this offence was not to expressly include any elements of mens rea. The inclusion of a new subsection (1) now requires that, at the time of the dissemination, the person intends to encourage or assist in the commission or preparation of terrorism acts, or is reckless as to whether this will be an effect of the dissemination.100 Where a person is reckless as to the likelihood of dissemination resulting in the encouragement to terrorism,101 it is a defence for the person to show that the information “neither expressed his views nor had his endorsement” and “that it was clear, in all the circumstances, that it did not express his views and... did not have his endorsement”.102
95 See Terrorism Act 2006, s 2(2).
96 Terrorism Act 2006, ss 2(13) and 20(2).
97 Terrorism Act 2006, s 2(3)(a), (4) and (5).
98 Terrorism Act 2006, s 2(3)(b).
99 Terrorism Act 2006, s 2(8).
100 Terrorism Act 2006, s 2(1).
101 That is, the offence committed by combination of sections 2(1)(a) and 2(3)(a) applying: see Terrorism Act 2006, s 2(10).
102 Terrorism Act 2006, s 2(9).
Measuring the Terrorism Act against Human Rights Safeguards
Identified earlier were seven safeguards, each of which will now be measured against the incitement provisions of the UK Terrorism Act 2006.
Sections 1 and 2 of the Terrorism Act 2006 both contribute to the positive duty of the United Kingdom to prohibit the advocacy of hatred that constitutes incitement to hostility of violence (a duty under Article 20(2) of the ICCPR). The offences clearly also go further than this, however, and must therefore be shown to be in compliance with Article 19(3) of the International Covenant (as necessary for the protection of national security, public order, or of public health of morals) and Article 10(2) of the European Convention (as necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals).
The position of the United Kingdom is that these provisions do just what the latter provisions speak of. The Home Office Explanatory Notes to the Bill described the aim of the provisions to ensure that law enforcement agencies were given the necessary powers to counter the threat to the United Kingdom posed by terrorism.103 This move was also clearly in response to the terrorist incidents in London in July 2005.104 The aims of sections 1 and 2 therefore appear to fit within the permissible objectives of the ICCPR and ECHR. However, central to the determination of whether these provisions are justifiable is the question of their necessity and proportionality. Based upon the analysis that follows, this chapter takes the view that, although the offences may be necessary, they are not proportionate and fail to comply with other human rights standards.
A further safeguard is that any proscription must be adequately accessible and expressed in a precise manner so that the public is clear on what conduct is being prohibited. The requirements of Article 15 of the ICCPR appear to be satisfied in the expression of the offences under sections 1 and
103 Home Office, ‘Terrorism Bill. Explanatory Notes’, online:
<http://www.publications.parliament.uk/pa/ld200506/ldbills/038/en/06038x--.htm> (last accessed 5 January 2006), para 3.
104 Ibid para 4.
and elements of each offence. They are also linked to existing statutory definitions of terrorist acts or Convention offences.
Outside the expression of the offences themselves, however, a matter of concern is the content of notice provisions under section 3 of the Act. Section 3 relates to the publication of a statement in the course of providing, or using, an electronic service (relevant to the encouragement of terrorism under section 1) or to the dissemination of a publication in the course of providing, or using, an electronic service (relevant to the dissemination of terrorist publications under section 2).105 The effect of the notice provisions is that, where they apply, a person will be deemed to have endorsed the statement or publication.106 This means that if a prosecution relies on the accused’s reckless intent (section 1(2)(b)(ii), or section 2(1)(c)), and where a section 3 notice applies, the defences of lack of endorsement (section 1(6), or section 2(9)) become unavailable. The integrity of the section 3 notice provisions is therefore important.
Section 3(3) defines a notice as one which, inter alia, declares that (in the opinion of the constable giving the notice) a statement or article or record is unlawfully terrorism-related, and warns the person to whom the notice is given that failure to comply with the notice will result in the statement, or article or record, being regarded as having that person’s endorsement. This places an enormous authority in the hands of the police. A notice may be given wherever a police constable is of the opinion that “the statement or the article or record is unlawfully terrorism-related” (section 3(3)(a)), without any apparent avenue of review or appeal against the formation of such an opinion. The legal effect of this power is limited, since it impacts only upon the availability of the ‘lack of endorsement’ defences. It is nevertheless troubling that the opinion of a police constable may have the effect of excluding a legal defence, without any apparent requirement for that opinion to be reasonably held or based upon external, reviewable, factors. The practical effect of this power is also worth noting. Outside the context of the application of the ‘lack of endorsement’ provisions, an innocent (or even intentional) misuse of the notice provisions has no legal effect. It does, however, result in the issuing of a notice expressing that a statement or article is “unlawfully terrorism-related” and that the notice is made under the Terrorism Act 2006.107 One should not underestimate the chilling effect such notices may have, particularly in the absence of any checking mechanisms. Police constables have been
105 Terrorism Act 2006, s 3(1).
106 Terrorism Act 2006, s 3(2).
107 Terrorism Act 2006, s 3(2).
provided with a powerful tool which may impact upon the exercise of the freedom of expression. The absence of checking mechanisms, and the fact that a constable’s opinion does not need to be reasonably held, render section 3 in breach of Article 15 of the ICCPR for lack of sufficient precision and certainty.
The offences under sections 1 and 2 of the Terrorism Act are linked to existing statutory definitions of “terrorist acts or Convention offences”. Terrorism is defined in the United Kingdom by section 1 of the Terrorism Act 2000. That definition is clear in its terms, although aspects of it do not meet with the characterisation of terrorist offences advocated by the Special Rapporteur on human rights and counter-terrorism (which is primarily based upon Security Council resolution 1566 (2004)):108
“Terrorist offences” should be confined to instances where the following three conditions cumulatively meet: (a) acts committed with the intention of causing death or serious bodily injury, or the taking of hostages; (b) for the purpose of provoking a state of terror, intimidating a population, or compelling a Government or international organization to do or abstain from doing any act; and (c) constituting offences within the scope of and as defined in the international conventions and protocols relating to terrorism.
Considering each characteristic in turn, it is firstly notable that the certain sub-paragraphs of the Terrorism Act 2000 go beyond “acts committed with the intention of causing death or serious bodily injury, or the taking of hostages”. Section 1(2)(d) relates to acts creating a serious risk to the health or safety of the public or a section of the public. Section 1(2)(e) concerns acts designed to seriously interfere with or disrupt an electronic system. While such acts are no doubt criminal in nature, they are not within the cumulative characteristics of terrorism identified.
Furthermore, section 1(3) of the Act goes beyond the second requirement in Security Council resolution 1566 (that the conduct is “for the purpose of provoking a state of terror, intimidating a population, or compelling a Government or international organization to do or abstain from doing any act”). It does so by waving the requirement that a terrorist act be designed to influence the government or intimidate the public (normally a requirement under section 1(1)(b) of the Terrorism Act 2000) where the conduct involves the use of firearms or explosives. The likely
108 Special Rapporteur, Promotion and Protection of Human Rights (n 36) Chapter III.
intention of the provision was to act as a deeming provision. Namely, that where an act under section 1(2) is perpetrated (one involving serious violence and the like) for the purpose of advancing a cause which involves the use of explosives or firearms, then the latter aspect of such an act is deemed to satisfy subsection (1)(b) by in fact intimidating the pubic or a section of the public. This, however, is a generous interpretation since not all acts involving the use of explosives or firearms need come to the knowledge of the public and, if they don’t, cannot therefore be said to intimidate the pubic.
Finally, the Terrorism Act 2000 definition fails to meet the Special Rapporteur’s cumulative characteristics by not restricting itself to acts that constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism. The section 1 and 2 offences are also linked to what the Terrorism Act 2006 refers to as “Convention offences”, being acts criminalised under the anti-terrorism conventions, as listed in Schedule 2 of the Act. This meets the third cumulative characteristic of “terrorist offences”. Not all of those offences, however, converge with the other two characteristics discussed.
The connection of the section 1 and 2 offences with “terrorism” and “convention offences” is thus problematic and not confined to the countering of international terrorism. Furthermore, in the context of the section 3 notices discussed earlier, the lack of appropriate checks and balances render the provisions capable of improper application to the censorship of materials that are not “terrorist publications”.
Any proscription must be expressed in a manner that respects the principle of non-discrimination which, on the face of the proscription clauses, appears to be met. Problematic, again, is the broad discretion of police constable in being able to issue notices under section 3, which is at least open to application in a discriminatory manner.
The provisions in question are not retroactive in their application. This principle, in its application to sentencing, is specifically expressed within sections 1(8) and 2(12) of the Terrorism Act 2000.
Any proscription should be expressed as the ‘unlawful’ incitement to terrorism, thus preserving any applicable legal defences. Although sections 1 and 2 do not qualify the conduct in question as ‘unlawful’, the Act does not exclude the application of any defences normally available under the criminal law of the United Kingdom. It expresses two defences applicable to these particular offence provisions.
The final safeguard identified in this chapter advocates that any proscription should be expressed as the ‘intentional’ incitement to terrorism. In respect of the encouragement of terrorism, an accused must have intended (at the time of publication) that the statement made be understood as encouraging terrorism, or be reckless as to whether or not it is likely to be so understood (section 1(2)(b)). As to the dissemination of terrorist publications, the inclusion in section 2 of a new subsection (1) requires that, at the time of the dissemination, the person intends to encourage or assist in the commission or preparation of terrorism acts, or is reckless as to whether this will be an effect of the dissemination.
Intending a statement to be understood in a certain manner incorporates the full extent of mens rea. It is similar in its terms to the Council of Europe Convention on the Prevention of Terrorism, Article 5, which defines the public provocation to commit a terrorist offence as “the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence ...”. In contrast, recklessness as to whether the statement is likely to be understood in a certain manner involves a lower threshold. Notwithstanding this, there are two matters which render the inclusion of recklessness as justifiable. First, as has been discussed, it will be a defence if the statement or publication neither expressed the views nor had the endorsement of the accused, and it was clear in all the circumstances that this was the case (sections 1(6) and 2(9)). Furthermore, the concept of recklessness has undergone intense judicial scrutiny in England, particularly in the context of the law of manslaughter, and there is consequently an extensive body of common law on the subject. In broad terms, recklessness requires proof of foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of that risk.109
109 See, for example, R v Caldwell [1982] UKHL 1; [1981] 1 All ER 961 (HL).
Summary and Evaluation of the Incitement Provisions in the Terrorism Act 2006
The United Kingdom’s Terrorism Act 2006 prescribes offences of the encouragement of terrorism and the dissemination of terrorist publications. As they stand, this text concludes that aspects of the applicable provisions fail to meet human rights standards. The incitement offences do fall within the permissible objectives of Article 19(3) of the ICCPR and Article 10(2) of the ECHR. The offences cannot be said to be formulated in proportionate terms, however, since they lack precision (concerning notices under section 3), they are not properly confined to the countering of terrorism (by virtue of their linkage to overly-broad definitions of the term “terrorism” within the Terrorism Act 2000), and their lack of precision makes them vulnerable to use in a discriminatory manner. On the positive side of things, the current prescriptions are non-retroactive and legal defences are not excluded. Next, although the offences contain (as alternative elements of mens rea) precise intent and reckless intent, the combination of common law on the subject together with accompanying defences render a satisfactory outcome to the issue of intent.
Conclusion
The countering of terrorism has been blamed for a decline in the freedom of expression. A mixed result arises, in this regard, from the examinations undertaken in this paper. There is evidence of an overly-robust approach to the interface between counter-terrorism and the freedom of expression within the United Kingdom’s Terrorism Act 2006. New Zealand’s law, in contrast, lacks an express proscription against the incitement to terrorism, despite the view of the UN Office on Drugs and Crime that all members of the United Nations are obliged to proscribe the incitement to terrorism. While aspects of such offending are captured within extant provisions of New Zealand criminal law, issues concerning penalty and jurisdiction fail to suitably encompass the incitement to terrorism. Reform, in New Zealand, is therefore needed. In addressing such reform, however, New Zealand would be sensible to avoid the traps fallen into by the UK Terrorism Act 2006 in its lack of precision and failure to be properly confined to the countering of terrorism.
Chapter 14
Freedom of Association and Terrorist Designations
Sections 8 and 10 of the Terrorism Suppression Act 2002 (TSA) prohibit the provision of funds to, or collection of funds for, a designated entity, or the provision of property or financial services to such entities. Sections 12 and 13 make it an offence to recruit another person into an organisation or group, knowing that the organisation or group is either a terrorist entity or participates in “terrorist acts”, or to participate in such an organisation or group. Section 13A criminalises the harbouring or concealing of a person, where it is known (or ought to be known) that the person has carried out, or intends to commit, a terrorist act. Broadly speaking, then, these provisions prohibit various means of associating with terrorist entities. Central to these non-association provisions are two features. The first is concerns conduct related to a “terrorist act”, which is the subject of consideration in chapter
16. The second feature is conduct related to a designated entity. This chapter will consider the freedom of association and the permissible limitations upon that freedom. It will set out and explain the mechanisms under the Terrorism Suppression Act for the designation of terrorist entities. Chapter 15 will then undertake a detailed analysis of that regime focussing upon natural justice and the right to a fair hearing.
Freedom of Association
The freedom of association is a right protected by both the International Covenant on Civil and Political Rights (ICCPR)1 and the New Zealand Bill of Rights Act 1990 (NZBORA). Section 17 of the Bill of Rights expresses the freedom in very simple terms, describing it as “the right to freedom of association”. Article 22(1) of the ICCPR is not much more helpful:
Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
1 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
Regrettably, the jurisprudence of the Human Rights Committee does not help define this right within the context of the current examination, since complaints before the Committee have concerned the membership of individuals in political parties or trade unions, and strike actions.2 In the context of the Bill of Rights, there has likewise been little academic and judicial scrutiny of the freedom of association. The point made by Professor Paul Rishworth, however, is that freedom of association is often viewed as a right linked with others.3 The freedom of association may permit, in turn, the exercise of the freedoms of expression (section 14) and peaceful assembly (section 16). Likewise, an interference with the freedom of association may involve discrimination against a person based upon that person’s political opinion (section 19)4, or it may interfere with the manifestation of a person’s religious beliefs (section 15).
Association with Terrorist Entities and the ICCPR
Freedom of association is not an absolute right, instead qualified by paragraph 2 of Article 22 of the ICCPR:
No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.
Considering Article 22(2) step by step, the first point is that the restrictions in question are provided for under the Terrorism Suppression Act and are therefore “prescribed by law”.5 The second requirement is that the restrictions must be necessary in a democratic society for the furtherance of certain interests. In the case at hand, it seems easily arguable that the identified provisions of the Terrorism Suppression Act are in pursuit of almost all of those interests identified in Article 22(2) of the Covenant by contributing to the international suppression of terrorism and by putting
2 See Alex Conte, Scott Davidson and Richard Burchill, Defining Civil and Political Rights. The Jurisprudence of the United Nations Human Rights Committee (London: Asghate Publishing Ltd, 2003) 61 and 65-67.
3 Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand
Bill of Rights (Oxford University Press, 2003) 354.
4 See also section 21(1)(j) of the Human Rights Act 1993.
5 For a discussion of the meaning of that term, see chapter 7.
into place means by which terrorist threats or acts within New Zealand can be suppressed and responded to: national security; public safety; the protection of public health; and the protection of rights and freedoms of others (including, for example, the right to life). It is therefore easy to conclude that the non-association provisions of the Terrorism Suppression Act are, in and of themselves, consistent with the ICCPR.
However, in saying that the provisions are “in and of themselves” consistent with the International Covenant on Civil and Political Rights, the author takes the view that this is dependent on the proper and just designation of terrorist entities. An abuse of that process might, for example, be used to prevent membership of all Islamic organisations rather than properly proscribing membership of organisations that fall within the proper terms of the designation process. The designation regime must therefore be considered closely, a matter undertaken by this and the following chapter.
It should be mentioned that membership of proscribed organisations is not something new. In considering regulations made by the relevant Minister in Ireland for the “preservation of the peace and the maintenance of public order”, the House of Lords had to determine in McEldowney v Forde whether it was proper for the Minister to have proscribed membership in a “republican club”.6 By three judges to two, the House of Lords held that Forde’s conviction for being a member of such a club was proper. While the division in opinion might seem problematic, the dissenting judgments were on the question of whether there was sufficient evidence that “republican clubs” caused any prejudice to peace or good order.7 There was no dispute as to whether membership can be proscribed for the purposes of preserving the peace and maintaining public order. Earlier still, the Nuremberg Tribunal held that proscribing membership of a criminal organisation was proper.8
Association with Terrorist Entities and the NZBORA
By reason of the plain expression of the freedom of association under the NZBORA, the provisions at hand do impact upon the freedom. The expression of the right does not qualify itself in any way that could render
6 McEldowney v Forde [1971] AC 632.
7 Ibid, Lord Pearce (651-654) and Lord Diplock (658-665).
8 International Military Tribunal, Nuremberg, judgment of 30 September 1946. For a discussion of this, see Kenneth Keith, ‘Terrorism, Civil Liberties and Human Rights’, a paper presented at the 13th Commonwealth Law Conference 2003, (CR4) Terrorism: Meeting the Challenges / Finding the Balances, 13-17 April 2003, 32-33.
those provisions consistent with its definition. The issue of consistency must therefore be determined by reference to the section 5 justified limitations provision.
As before, the author takes the view that the provisions at hand present the most clear-cut case of justified limitations upon a right or freedom. The objectives of the various provisions are all directed, and rationally connected to, the suppression of the financing of terrorism, the participation in terrorist groups and the bringing to justice of the perpetrators of terrorist acts. Bearing in mind the consequences of terrorism,9 these prohibitions are manifestly proportional to the limitations upon the freedom of association. It is therefore concluded that the provisions are ‘consistent’ with the Bill of Rights Act, within the meaning of Rishworth’s Step Two. No breach of the NZBORA occurs.
Again, however, the author qualifies this conclusion on the proviso that this is dependent on the proper and just administration of the process by which a person or group may be designated a “terrorist” or “associated” entity. To some extent, this concern is alleviated through the express qualifications within sections 8(2) and 10(2) of the Terrorism Suppression Act, which make it clear that these provisions do not make it an offence to provide or collect funds with the intention that they be used, or knowing that they are to be used, for the purposes of advocating democratic government or the protection of human rights, so long as such an organisation is not involved in carrying out terrorist acts. The Terrorism Suppression Amendment Bill 2007, however, seeks to remove these ‘avoidance of doubt’ provisions.
The Designation of Terrorists under New Zealand Law
The Terrorism Suppression Act 2002 sets out a detailed process by which individuals or entities may be designated as terrorist or associated entities, either as a domestically initiated designation, or (as the Act stands at present) as a result of the listing of such entities by the UN Security Council resolution 1267 (1999) Sanctions Committee (the 1267 Sanctions Committee). This process poses certain difficulties with respect to UN- listed entities and, due to those problems, the Terrorism Suppression Amendment Bill 2007 proposes to remove reference to UN-listed entities leaving room for such entities to be automatically listed, rather than
9 See, infra, chapter 6.
requiring executive action.10 This part of the chapter will set out the current regime for the designation of terrorist entities, identifying intended reform pursuant to the 2007 Amendment Bill.
The Making of Designations
Designations under the Terrorism Suppression Act, whether interim or final, have the same consequences in terms of their linkage with offences and with reporting obligations (impacting upon third parties directly, and upon designated entities as a result of the fact that dealings with them are prohibited). The designations can also impact upon designated entities by virtue of the fact that property owned or controlled by a person or group that is the subject of a final designation can be forfeited to the Crown if that property is in New Zealand.11 The primary differences between the two types of designation concerns the standard of belief required to be had by the Prime Minister before the making of a designation, and the life of each type of designation.
The primary difference between interim and final designations is the level of belief required of the Prime Minister regarding the status or conduct of the person or group being designated. An interim designation can be made where the Prime Minister has “good cause to suspect” that an entity has done certain things, while a final designation requires a belief “on reasonable grounds” to be held by the Prime Minister.12
There is no requirement that an entity be first designated on an interim basis before designation on a final basis. A final designation can be made in respect of a group or person that has never been the subject of an interim designation, or is at that time the subject of an interim designation, or was
10 New Zealand Parliamentary Library, Bills Digest. Terrorism Suppression Amendment Bill 2007 (Bills Digest 1498, 21 March 2007), 5.
11 Terrorism Suppression Act 2002, section 55. Forfeiture can only occur on application to the High Court by the Attorney-General and if the designation is one that has been extended
beyond the normal three year period (under section 35 of the Act) and the Court is satisfied that it would be appropriate to forfeit the property rather than simply continue with the prohibition against dealing with it (section 9). The property of a designated entity is thus “frozen”, in that others are prohibited from dealing with it, but cannot be forfeited unless the designation is extended beyond three years and the prohibition against dealing with the property is not sufficient.
12 Compare Terrorism Suppression Act 2002, section 22(1) and (3) (final designations) with
section 20(1) and (3) (interim designations).
the subject of an interim designation that subsequently expired or was revoked.13 If, however, a final designation is made in respect of an entity that is already the subject of an interim designation, the latter becomes revoked as a result of the making of the final designation.14 In the case of an entity that has already been the subject of a final designation, and where that designation was revoked, a further final designation is permitted, but only if this is based on information that became available since the revocation of the earlier designation.15
A direct reflection of the differing standards required for interim versus final designations is found in the length of time that each type of designation can remain in force. In the case of interim designations, requiring the lower standard of proof of “good cause to suspect”, the designation can last only up to 30 days,16 unless earlier revoked17 or replaced by a final designation.18 Importantly, a person or organisation cannot be made the subject of repeated interim designations in an attempt to extend a designation under this lower threshold.19 The only exception to this rule is that an interim designation will continue if it becomes the subject of judicial review or other proceedings before a court (and is not otherwise revoked)20 until those proceedings are withdrawn or finally determined.21
In contrast, final designations last for three years from the date they are made, unless earlier revoked.22 As in the case of interim designations, if the
13 Terrorism Suppression Act 2002, section 23(a). 14 Terrorism Suppression Act 2002, section 23(b). 15 Terrorism Suppression Act 2002, section 23(c). 16 Terrorism Suppression Act 2002, section 21(e).
17 The Prime Minister has the authority, under section 34 of the Terrorism Suppression Act
2002, to revoke interim or final designations.
18 Terrorism Suppression Act 2002, section 22.
19 Terrorism Suppression Act 2002, section 21(a).
20 The designation could be earlier revoked under section 23(b) of 34 of the Terrorism Suppression Act 2002.
21 Terrorism Suppression Act 2002, section 21(f).
22 Terrorism Suppression Act 2002, sections 23(g)(i) and 34. The Terrorism (Bombings and Financing) Bill 2001 had provided that designations remain active for five years: see clause
17V of the Bill, as contained within the select committee’s interim report – Foreign Affairs, Defence and Trade Select Committee, Interim Report on the Terrorism (Bombings and Financing) Bill, 8 November 2001. In its final report on the Bill, the Committee recommended that this be reduced to three years, stating that “it is important that the designation of a person or group as a terrorist or associated entity expire, so designations do
final designation becomes the subject of judicial proceedings, that designation continues to operate, even beyond the three-year period.23 Otherwise, for a final designation to continue beyond three years, it must be extended by an order of the High Court.24 To do so, the Attorney-General must satisfy the Court, on the balance of probabilities, that the entity is the subject of criminal proceedings for terrorist acts,25 or has been convicted of terrorist acts in an overseas tribunal (on a final basis),26 or is a terrorist or associated entity.27 This can be done on a repeated basis.28 A decision of the High Court on an application for the extension of a designation can be appealed to the Court of Appeal by any party to that application.29
Whereas extensions to final designations must currently be made by the High Court, the Terrorism Suppression Amendment Bill 2007 proposes that extensions instead be made by the Prime Minister. This is considered further below.
A further distinction to be made, applicable to both interim and final designations, concerns the ‘class’ of designations that can be made. A person or group can be designated as either a “terrorist entity” or an “associated entity”, the distinction essentially depending upon that person’s or group’s past conduct. Where the Prime Minister has good cause to suspect (interim designation) or believes on reasonable grounds (final designation) that an entity “has knowingly carried out, or has knowingly participated in the carrying out of, 1 or more terrorist acts”, then that entity can be designated as a terrorist entity.30 Associated entities can be designated where there is suspicion or belief that an entity is facilitating or participating in the execution of a terrorist act, or is acting on behalf of or at
not continue after the reasons for making them cease to exist”: see Foreign Affairs, Defence and Trade Committee, Final Report on the Terrorism <(Bombings and Financing)> Suppression Bill, 22 March 2002.
23 Terrorism Suppression Act 2002, section 23(h).
24 Terrorism Suppression Act 2002, sections 23(g)(ii) and 35(2).
25 Whether in New Zealand or overseas: see Terrorism Suppression Act 2002, section 37(a). 26 That is, convicted in criminal proceedings that are not subject to any appeal and that are finally determined: see Terrorism Suppression Act 2002, section 23(b).
27 Terrorism Suppression Act 2002, section 35(c) and (d). Compare these tests to their equivalents for interim and final designations under sections 20 and 22.
28 Terrorism Suppression Act 2002, section 35(2) to (5).
29 Terrorism Suppression Act 2002, section 41.
30 Terrorism Suppression Act 2002, sections 20(1) (interim designation as a terrorist entity) and 22(1) (final designation as a terrorist entity). Note that the term “terrorist acts” is defined through sections 4 and 5 of the Act.
the direction of a terrorist entity, or is wholly owned or effectively controlled by a terrorist entity.31 In the case of final designations, the Prime Minister can later change the description of the designation from “terrorist entity” to “associated entity” (or vice versa) by signing a written notice to that effect.32
Before making interim designations of either terrorist or associated entities, the Prime Minister must consult with the Minister of Foreign Affairs and Trade.33 The Prime Minister and Attorney-General must also advise the Leader of the Opposition of the making of an interim designation and, if requested, brief the Leader on the factual basis for the making of the designation.34 If practicable, this must be done before the designation is publicly notified, or as soon as possible after the notification.
In the case of final designations, the Prime Minister must first consult with the Attorney-General about any proposed final designation, rather than the Minister of Foreign Affairs and Trade.35 Advice to the Leader of the Opposition is not required.36 Finally, the Prime Minister is bound to consult with the Attorney-General before deciding on whether to continue or revoke a designation (in a situation where the Prime Minister is requested under section 34(1) of the Act to reconsider the designation).
In making either an interim or final designation, the Prime Minister can rely on “any relevant information”.37 Two categories of information, however, are accorded special status. The first is information provided by the United Nations Security Council, which is deemed by section 31(1) of the Act to be sufficient evidence of the matters to which it relates, in the absence of
31 Terrorism Suppression Act 2002, sections 20(3) (interim designation as an association entity) and 22(3) (final designation as an association entity).
32 Terrorism Suppression Act 2002, section 29A, as inserted through the Counter-Terrorism Bill 2003, clause 14.
33 Terrorism Suppression Act 2002, section 20(4).
34 Terrorism Suppression Act 2002, section 20(5).
35 Terrorism Suppression Act 2002, section 22(4). Compare this with interim designations,
which require the Prime Minister to consult with the Minister of Foreign Affairs and Trade: section 20(4) of the Act.
36 Compare with the need to advise and brief in the case of interim designations: Terrorism Suppression Act 2002, section 20(5).
37 Terrorism Suppression Act 2002, section 30.
any evidence to the contrary. Where such information indicates that the Security Council, or one of its Committees, considers that an entity is one that would otherwise satisfy the municipal tests for cause to designate,38 then the Prime Minister may make a corresponding municipal designation.39 This, as indicated, is the subject of proposed reform, so that UN-listed entities will become automatically listed under New Zealand law.
The second category of information dealt with under the Act is classified security information, being information held by the New Zealand police or an intelligence and security agency, where the head of the agency has certified that the information cannot be disclosed.40 To be able to give such a certificate, the head of the agency must be of the opinion that the information is of a certain nature (as specified in section 32(2)), the disclosure of which would have certain prejudicial effects (as listed in section 32(3).41 The protection of classified information, and the natural justice implications of this, are considered in chapter 15.
The designation itself must be made in writing and signed by the Prime Minister, then publicly notified in the Gazette as soon as practicable, and by any other means directed by the Prime Minister (by internet, for example).42 Where a designated entity, or any representative of it, is in New Zealand, and if practicable, notice of the designation must also be given to the entity or representative with all reasonable speed.43 The content of any notice of interim or final designation is prescribed by section 26:
A notice under section 21(d)(i) or section 23(f)(i) (to notify the designated entity of the making of the designation under section 20 or section 22) –
(a) must state the section under which the designation is made, and whether the entity concerned is designated as a terrorist entity or as an associated entity:
38 Cause to make an interim designation is, as discussed, governed by section 20(1) and (3) of the Terrorism Suppression Act 2002. Cause to make a final designation is governed by 22(1) and (3) of the Act.
39 Terrorism Suppression Act 2002, section 31(2).
40 Terrorism Suppression Act 2002, sections 4(1) and 32(1).
41 Terrorism Suppression Act 2002, section 32.
42 Terrorism Suppression Act 2002, sections 21(b) and (c), 22(d) and (e), and 28(1). The example of notification by internet was given by the Foreign Affairs, Defence and Trade
Committee in its interim report on the Terrorism Suppression Bill, Interim Report on the Terrorism (Bombings and Financing) Bill, 8 November 2001, unnumbered page 9. The content of such notices is prescribed by section 27 of the Act.
(b) may describe the entity concerned by reference to any name or names or associates or other details by which the entity may be identified:
(c) must state the maximum period for which the designation may have effect or, if it is made under section 22, the maximum period for which it may have effect without being extended:
(d) must include general information about how it may be reviewed and revoked:
(e) must include any other information specified for the purposes of this paragraph by regulations made under this Act
A notable omission from this prescription of what must be included within a notice is the need to provide reasons for the designation. This is a point that is further reflected upon later in chapter 15.
The Prime Minister can also direct that notice be given to any person that may be in possession of property owned or controlled by the entity, or who may be in a position to provide property or services to the entity.44 This will normally involve notice being given to registered banks or other financial institutions so that they are in a position to comply with their reporting obligations under the Act.45 Just as designations must be notified under the Act, so must the revocation, expiry or invalidity of designations.46 An important feature of the notice provisions is that the Act specifically provides that a designation will not be invalid because the entity concerned was not given notice that a designation might be made, or given a chance to comment on whether it should be made.47 The natural justice implications
of these notice provisions will be considered in chapter 15.
Review and Renewal of Designations
Once a designation is made, there are three means by which the designation will be reviewed or renewed. The first involves an extension of a final designation beyond the standard three-year period.48 It is this first review mechanism that is to be changed under the Terrorism Suppression Bill 2007, and comments on the nature of the proposed amendment will follow. The other two means of reviewing the status of designations involve
43 Terrorism Suppression Act 2002, sections 21(d)(i) (notice of interim designation) and 23(1)(f) (notice of final designation).
44 Terrorism Suppression Act 2002, sections 9(1), 10(1), 21(d)(ii), 23(f)(ii) and 28(2). The content of such notices is prescribed by section 27 of the Act.
45 See sections 43 to 47 of the Terrorism Suppression Act 2002.
46 Terrorism Suppression Act 2002, section 42.
47 Terrorism Suppression Act 2002, section 29(a).
48 Terrorism Suppression Act 2002, section 35.
reviews initiated either by the designated entity or reconsideration of the designation at the Prime Minister’s own volition.
The first available option under the Terrorism Suppression Act open to a designated entity is that of judicial review. Section 33 of the Act is unrestricted in its terms, allowing “a person” (presumably any person) to bring any judicial review or other proceedings before a court arising out of, or related to, the making of a designation under the Act.
A designated person, or a third party with “an interest in the designation”,49 may also apply in writing to the Prime Minister to revoke a designation.50 In doing so, the application must be based on one of two grounds: either (1) that the designation should be revoked because the entity concerned does not satisfy the prescribed requirements for designation; or (2) that the entity is no longer involved in any conduct that would otherwise legitimate a designation under the Act.51 In determining such an application, the Prime Minister is required to consult with the Attorney-General.52
Where the Attorney-General seeks to extend a final designation beyond its statutory expiry date, the Attorney-General must satisfy the Court, on the balance of probabilities, that the entity is the subject of criminal proceedings for terrorist acts,53 or has been convicted of terrorist acts in an overseas tribunal (on a final basis),54 or is a terrorist or associated entity.55
The ability to revoke a designation under section 34 of the Act can also be initiated at the Prime Minister’s own initiative.56 This is the only mechanism by which an ‘internal’ review of designations can be initiated. In the form presented within the select committee’s interim report on the
49 As defined by section 34(2) of the Terrorism Suppression Act 2002.
50 Terrorism Suppression Act 2002, section 34(1).
51 Terrorism Suppression Act 2002, section 34(3).
52 Terrorism Suppression Act 2002, section 34(5).
53 Whether in New Zealand or overseas: see Terrorism Suppression Act 2002, section 37(a). 54 That is, convicted in criminal proceedings that are not subject to any appeal and that are finally determined: see Terrorism Suppression Act 2002, section 23(b).
55 Terrorism Suppression Act 2002, section 35(c) and (d). Compare these tests to their equivalents for interim and final designations under sections 20 and 22.
56 Terrorism Suppression Act 2002, section 34(1).
Bill, the Terrorism Suppression Act was also to include a mandatory review of designations by the Inspector-General of Intelligence and Security.
All final designations currently expire after three years, unless renewed by the High Court on the application of the Attorney-General under section 35 of the Terrorism Suppression Act. The Attorney-General must thus currently satisfy the High Court, on the balance of probabilities, that the entity is the subject of criminal proceedings for terrorist acts,57 or has been convicted of terrorist acts in an overseas tribunal (on a final basis),58 or is a terrorist or associated entity.59
In the context of UN-listed entities, which number in the hundreds, this presents a significant administrative and judicial burden, as well as placing New Zealand in the potential position of having its Courts require a person or entity to be removed from listing under New Zealand law, in conflict with obligations under the UN Charter and relevant Security Council resolutions. These problems initially prompted the passing of the Terrorism Suppression Amendment Act (No 2) 2005, stretching extant final designations to five years instead of three.60 The Terrorism Suppression Amendment Bill 2007 will achieve remove the problem, as it applies to UN-listed entities, by making all such entities automatically designated under New Zealand law. This change is considered further below.
The 2007 Amendment Bill seeks to go further than this, however, by placing the renewal of domestically-designated entities (as well as UN- listed entities) in the hands of the Prime Minster, instead of the High Court. Clause 21 of the Bill will replace current sections 35 to 37 of the Act. The existing provisions, in brief, provide that: final designations (those made under section 22 of the Act) expire after three years, unless extended by order of the High Court upon application of the Attorney-General (section 35); preservation of any final designation pending judicial review proceedings initiated by the designated entity, and associated matters (section 36); and a detailed list of grounds upon which the High Court is
57 Whether in New Zealand or overseas: see Terrorism Suppression Act 2002, section 37(a). 58 That is, convicted in criminal proceedings that are not subject to any appeal and that are finally determined: see Terrorism Suppression Act 2002, section 23(b).
59 Terrorism Suppression Act 2002, section 35(c) and (d). Compare these tests to their equivalents for interim and final designations under sections 20 and 22.
60 New Zealand Ministry of Justice, Terrorism Suppression Amendment Bill (No 2) 2004,
Government Bill, 242-1, Explanatory Note, presented to the House 14 December 2004, 2. See also Press Release, ‘Amendments to Tighten Terrorism Suppression Act’, URL
<http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=21825> at 8 January 2005.
authorised to extend a final designation for a further period (section 37). Clause 21 of the Bill will see these three provisions replaced by a new section 35 which, in the form presented to Parliament on 21 March 2007, reads as follows:
35 Designations under section 22 to expire after 3 years unless renewed by Prime Minister
(1) A designation made under section 22 expires 3 years after the date on which it takes effect, unless it is earlier—
- (a) revoked under section 34; or
- (b) renewed by an order under subsection (2) or (3).
(2) The Prime Minister may order that a designation made under section 22 remain in force for a further 3 years after the making of the order if the Prime Minister is satisfied that there are still reasonable grounds as set out in section 22 for an entity to be designated under that section.
(3) Before expiry of an order under subsection (2), the Prime Minister may make another order renewing the designation concerned for a further 3 years.
(4) The Prime Minister may make any number of orders under subsection (3) in respect of the same designation.
The first rather obvious observation to make is that these proposed amendments are significantly more simple that the extant sections 35 to 37. Furthermore, the grounds upon which an extension may be made are less than under the current regime, restricting the Prime Minister to the test under section 22 for determining whether the person or group is a terrorist or associated entity. The only matters of potential concern are the removal of judicial scrutiny each three years, and the fact that while the High Court can extended a designation if satisfied of matters “on the balance of probabilities” (extant section 37), the Prime Minister need only have a belief “reasonable grounds” of the matters in section 22 (sections 22 and proposed 35(2)). These matters are not, however, of substantial concern, since any extension under proposed section 35 remains subject to judicial review under section 33 of the Act.
United Nations-Listed Terrorist Entities
Other than granting a special status to information provided by the UN Security Council, under section 31 of the Terrorism Suppression Act 2002, the TSA does not currently distinguish between “domestic designations” (designations that can be initiated by the New Zealand Government under the Act) and “UN designations” (the designation of individuals and entities
that have been listed by the UN Security Council 1267 Sanctions Committee). This, as indicated, is to change of the Terrorism Suppression Amendment Bill 2007 is enacted in its current form. This part of the chapter considers the current treatment of UN-listed entities, the problems associated with this, and the desirability or otherwise of the proposed reforms.
UN Designations and Associated Obligations upon New Zealand
It is useful at this stage to provide an overview of the 1267 Sanctions Committee role and functioning, the associated obligations upon New Zealand as a UN member State, and the means by which those obligations are currently put into effect.
The Taliban/Al-Qaida Sanctions Committee, established under Security Council Resolution 1267,61 has described itself as “a key instrument in the fight against terrorism”.62 The Sanctions Committee maintains a list of individuals and entities that are part of, or associated with, the Taliban, Al- Qaida and Usama bin Laden. The Sanctions Committee operates under the mandate of several Security Council resolutions.63 There are general guidelines on the mandate and operation of the Committee.64 There are few guidelines on the procedure by which the Committee is to designate individuals or entities, particularly not regarding the rights of those designated or proposed for designation.65
61 SC Res 1267, UN SCOR, 4051st Mtg, UN Doc S/Res/1267 (1999), para 6. The Committee is formally known as the “Security Council Committee Established Pursuant to Resolution 1267 (1999) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities”.
62 Security Council Committee Established Pursuant to Resolution 1267 (1999), Guidance for Reports Required of all States pursuant to paragraphs 6 and 12 of Resolution 1455
(2003), online: <http://www.un.org/Docs/sc/committees/1267/guidanc_en.pdf> (last accessed 15 August 2005).
63 See: SC Res 1267 (n 61); SC Res 1333, UN SCOR, 4251st Mtg, UN Doc S/Res/1333 (2000); SC Res 1363, UN SCOR, 4352nd Mtg, UN Doc S/Res/1363 (2001); SC Res 1388, UN SCOR, 4449th Mtg, UN Doc S/Res/1388 (2002); SC Res 1390, UN SCOR, 4452nd Mtg, UN Doc S/Res/1390 (2002); SC Res 1452, UN SCOR, 4678th Mtg, UN Doc S/Res/1452 (2002); SC Res 1455, UN SCOR, 4686th Mtg, UN Doc S/Res/1455 (2003); SC Res 1456, UN SCOR, 4688th Mtg, UN Doc S/Res/1456 (2003); SC Res 1526, UN SCOR, 4908th Mtg,
UN Doc S/Res/1526 (2004); and SC Res 1617, UN SCOR, 5244th Mtg, UN Doc S/Res/1617 (2005).
64 See Security Council Committee Established Pursuant to Resolution 1267 (1999),
Guidelines of the Committee for the Conduct of its Work, adopted on 7 November 2002 and amended on 10 April 2003, online: <http://www.un.org/Docs/sc/committees/ 1267Template.htm> (last accessed 9 August 2005).
65 Some broad roles of the Committee are expressed within para 5 of SC Res 1390 (n 63): and, more generally, SC Res 1455 (n 63) and SC Res 1526 (n 63).
UN member States have an obligation to designate as terrorist entities those that are listed by the UN Sanctions Committee, that obligation arising from a combination of the following documents:
Freeze funds and other financial resources, including funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as designated by the Committee established by paragraph 6 below, and ensure that neither they nor any other funds or financial resources so designated are made available, by their nationals or by any other persons within their territory, to or for the benefit of the Taliban or any undertaking owned or controlled, directly or indirectly, by the Taliban, except as may be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need.
66 SC Res 1267 (n 61).
67 SC Res 1333 (n 63).
68 SC Res 1390 (n 63).
69 SC Res 1617 (n 63).
These obligations are complementary to and consistent with those under Security Council resolution 1373 (2001), and the International Convention for the Suppression of the Financing of Terrorism.70 With regard to the Financing Convention, Article 8(2) is notable on the subject of the forfeiture of funds, as it obliges States parties to “take appropriate measures... for the forfeiture of funds used or allocated for the purpose of committing [terrorist offences] and the proceeds derived from such offences”.
Compliance with Obligations to Designate UN-Listed Entities
The practical means by which States have sought to comply with the obligations just mentioned is through the establishment of offences prohibiting the provision of financial or related assistance to designated entities, offences prohibiting the dealing with financial resources of designated entities (thus freezing these resources), and mechanisms allowing for the forfeiture of such resources. In New Zealand’s case, this is through sections 8, 9, 10 and 55 of the Terrorism Suppression Act.71
Other than the section 8 prohibition against the financing of terrorism (linked to the commission or facilitation of “terrorist acts”), these provisions are currently linked to domestically promulgated designations. Thus, generally speaking, New Zealand must have designated those entities listed by the Sanctions Committee in order to comply with the obligations mentioned. Thus, if an entity is listed by the Sanctions Committee but not designated under New Zealand law, then the prohibitions under sections 9 and 10 of the TSA will not apply, meaning that New Zealand nationals would be lawfully able to fund the entity, provide financial services to it, and deal with its assets and property. This goes against the obligations of New Zealand to: freeze the assets of entities listed by the Sanctions
70 International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992).
71 Section 8 of the Terrorism Suppression Act 2002 prohibits the financing of terrorism (linked to “terrorist acts”, as defined within sections 4 and 5 of the TSA); section 9 prohibits
the dealing with property of, or derived or generated from property of, terrorist or associated entities (as designated under the Act); section 10 prohibits the making of property, or financial or related services, available to terrorist or associated entities (as designated under the Act); and section 55 authorises the Attorney-General, when seeking a renewal of a designation under the act, to apply for forfeiture of property owned or controlled, directly or indirectly, by a designated entity (or derived or generated from such property) upon satisfying the Court that forfeiture to the Crown is appropriate, rather than it remaining subject to the prohibition in section 9.
Committee; and prohibit nationals from financing or providing financial or associated services to entities listed by the Sanctions Committee.72
A Distinct Process for UN-Listed Entities
On the basis of the obligations mentioned to designate UN-listed entities, the means of achieving compliance with those obligations and the consequences of not designating UN-listed entities, there is a strong case for establishing mechanisms by which UN-listed entities become automatically designated by New Zealand following notification from the Sanctions Committee of a new designation. This is the approach advocated by the 2007 Amendment Bill and is met with qualified support by the author of this text.
A qualification to this support concerns a matter raised in chapter 11 of this text, concerning the making of regulations under the United Nations Act 1946 which, the author presumes, will be the vehicle through which UN- listed entities will become designated under New Zealand law. It was discussed there that there is tension between the need for New Zealand to comply with binding decisions of the Security Council, and the need to ensure that regulations under the Act do not encroach upon the rights and freedoms set out under the New Zealand Bill of Rights Act 1990. To meet the challenges of this tension, chapter 11 set out recommendations for changes to the regulation-making power under the United Nations Act.
Given the international concerns with the apparent lack of due process in the listing of entities by the 1267 Sanctions Committee, the subject at hand reinforces the need for such safeguards in executive law-making. As indicated earlier, other than the expression of some very broad roles of the Sanctions Committee, the procedure by which the Committee designates individuals and entities leave those that have been designated, or are subject to a proposed designation, with no enforceable rights to be heard, or to seek an appeal or review of the listing. UN member States can themselves request that the Committee “de-list” an individual or entity where they have received information (by petition from the listed person, for example) pointing to the conclusion that the entity should not be
72 See: SC Res 1267 (n 61) para 4(b); SC Res 1333 (n 63) para 8(c); SC Res 1390 (n 63) para 2(a); and SC Res 1617 (n 63) para 1.
designated.73 This procedure is, however, the only express mechanism safeguarding the right of wrongfully designated entities or individuals, should there be any, to challenge their designation by the Committee (i.e. by petitioning a UN member State to do so on their behalf).
Several States have expressed concern that the listing and de-listing procedures of the Sanctions Committee do not live up to the principles of due process.74 Some States have even taken the position that they will not actively assist the Committee by providing it with names of persons or entities that might become listed until these concerns have been addressed.75 Evidenced within statements of the current Chair of the Security Council Counter-Terrorism Committee, there appears to be general acceptance that the Sanctions Committee guidelines need improvement.76 New Zealand’s Permanent Representative has herself expressed New Zealand’s view that basic standards of due process must be met within the Committee’s listing process and, in doing so, urged the Security Council to consider amendments to the Committee’s regime to meet these concerns.77
The due process concerns with the United Nations-listing mechanisms might, alternatively, be capable of redress by implementing domestic
73 See the Sanctions Committee guidelines (n 64).
74 See, for example, the statement of Ellen Margrethe Løj (Danish Ambassador to the United Nations, and current Chair of the Security Council Counter-Terrorism Committee), UN Press Release, ‘Security Council Reaffirms Terrorism One of Most Serious Threats to Peace’, UN SCOR, 59th Sess, 5229th Mtg, UN Doc SC/8454 (2005).
75 Ibid.
76 Ibid, operative para 18 of SC Res 1617 (n 63) is said to further reflect a desire on the part of a number of Security Council member States to secure improvements in the Sanctions Committee’s process. See also: EU Network of Independent Experts in Fundamental Rights, The Balance Between Freedom and Security in the Response by the European Union and its Member States to the Threat of Terrorism (EU Network of Independent Experts in Fundamental Rights, 2003); Ben Hayes, Terrorising the Rule of Law: The Policy and Practice of Proscription (Statewatch, 2005); and Yusuf and Al Barakaat International Foundation v Council and Commission (unreported judgment of the European Court of
Justice of first instance, 21 September 2005), online: <http://www.curia.eu.int/jurisp/cgi- bin/form.pl?lang=en & Submit=Submit & docj= docj & numaff= & datefs= & datefe= & nomusuel= & domaine= & mots=terror & resmax=100> (last accessed 3 November 2005).
77 Rosemary Banks (New Zealand Permanent Representative to the United Nations),
Statement on Counter-Terrorism to the President of the United Nations Security Council, 20 July 2005, online: <http://nzmissionny.org/securitycouncil.htm> (last accessed 17 August 2005).
safeguards. As the matter stands now, and would continue to do so following successful amendment, if New Zealand nationals were ever to find themselves the subject of a UN-listing, the only recourse would be an informal one. That is, where the individual is able to persuade the New Zealand Government to petition the Sanctions Committee. Assuming that such a plea to the Government was successful, there is no guarantee of success, no matter how compelling the evidence might be. The de-listing process has only been initiated once by Sweden in such circumstances and, although ultimately successful, was initially met with considerable resistance from the sponsor of the initial listing, the United States.
The only other alternative is to permit such a person to bring an application for judicial review before the New Zealand courts. This does, however, raise more questions than answers. What legal yardstick would a court consider in any such application? If a court was to agree that there were no reasonable grounds for the identification of the applicant as a terrorist or associated entity, what remedy could be awarded? Should the court be capable of obligating the New Zealand Government to make a petition for de-listing? Such an approach would be complex and troublesome, and it is therefore no wonder that the 2007 Amendment Bill avoids such an option altogether.
Conclusion
Restrictions upon freedom of association with persons or entities which commit terrorist acts, or are listed as terrorist or associated entities, is in principle a permissible form of restriction. The justifiability of such restrictions ultimately depend upon the proper definition of terrorist acts (to be considered in chapter 16) and/or an appropriate process by which persons or groups are listed as terrorist or associated entities. The latter feature is provided for in New Zealand law under the Terrorism Suppression Act 2002. This chapter has outlined that process and considered two issues of reform being contemplated under the Terrorism Suppression Amendment Bill 2007. The first is a change in the manner by which New Zealand designates UN-listed entities, making such designation automatic. Having regard to New Zealand’s obligations under the United Nations Charter, and relevant Security Council resolutions, this is an appropriate response. The second change to be made under the 2007 Amendment Bill concerns the extension of final designations beyond three years, where such renewal will be undertaken by the Prime Minister instead of by application of the Attorney-General to the High Court. In light of the
basis upon which such renewals can be made, and the susceptibility of such renewals to judicial review, this reform is also seen as unproblematic.
Chapter 15
Natural Justice and Domestically-Based Terrorist Designations
The preceding chapter was the first of two to consider the legal regime under the Terrorism Suppression Act 2002 (TSA) through which a person or group may be designated a terrorist entity. Its focus was upon the implications of such designation upon freedom of association, and two of the three principal amendments to be made to the designations regime under the recently introduced Terrorism Suppression Amendment Bill 2007. Namely: the removal of UN-listed entities from the process under the Act, replacing this with an automatic mechanism guaranteeing synergy between the list held by the United Nations 1267 Sanctions Committee and domestic designations; and, in the case of persons listed as terrorist entities by the Prime Minister outside the scope of the UN list, the replacement of extensions of final designations by the High Court to a system where such extensions can be made by the Prime Minister. This chapter considers the natural justice implications of what will remain as the domestically- initiated designation process under the TSA.
The legislative framework for the designation of terrorist entities under the Terrorism Suppression Act 2002 has been explained in chapter 14. Before turning to an examination of the natural justice issues arising from this process, one further feature of the TSA must be explained: that concerning classified security information.
Classified Security Information
The information upon which a designation is based (or part of it) can be certified by the agency providing the information to the Prime Minister as “classified security information”. The ‘protection’ provided by, and to, these provisions is substantial.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
What is “Classified Security Information”?
The definition of classified security information is set out, in reasonably lengthy terms, in section 32 of the TSA. Information will be certified as classified security information where the head of the agency providing the information certifies in writing that s/he is of the opinion that:1
and
Information might satisfy this test (and therefore be capable of being certified as “classified security information”) where, for example, the information is provided to New Zealand by a security agency of another State on a confidential basis (section 32(2)(c)), the disclosure of which would thereby prejudice the confidential basis upon which the information was provided (section 32(3)(b)).
Although the provisions of section 32 will be considered by the head of an agency in determining whether or not to issue a classified security
1 Terrorism Suppression Act 2002, section 32(1)(c).
certificate, the impact of such a certificate is not felt at the level of the making of a designation.2 Within the current framework of the Act, the significance of such certification lies in the treatment of classified security information in judicial proceedings.
Treatment of Classified Security Information in Proceedings
As the Terrorism Suppression Act stands, two sets of rules apply to the way in which classified information may be treated, depending upon the nature of the proceedings. This is to be replaced by one single procedure, if amendments proposed by the Terrorism Suppression Amendment Bill 2007 proceed. Set out below are the two existing procedures, followed by identification of the Amendment Bill procedure.
In the case of Crown applications for the extension of a designation under section 35 of the TSA (which will no longer be required if the Act is amended as proposed), the proceedings and treatment of classified information are prescribed by the Act. First of all, section 38 of the Act requires such proceedings to be heard by the Chief High Court Judge or nominee(s).3 Secondly, section 38 allows classified security information to be withheld.
On application by the Attorney-General, and where the Crown satisfies the High Court that it is desirable for the protection of classified security information, the Court must receive or hear that information in the absence of the designated entity concerned, the entity’s counsel, and members of the public.4 The Court, in such circumstances, will be in a position to hear classified evidence in support of the Crown’s application to extend the
2 Sections 20 to 23 (concerning the making of interim and final designations) do not require such notice to be given or responses to be provided by an entity before the making of a designation. Indeed, section 29(a) specifically states that a designation will not be invalid for failure to give prior notice or provide an opportunity to be heard. Likewise, any notice given to an entity of their designation status does not require information to be given about the factual basis upon which the designation is made: see section 26 of the Act.
3 Terrorism Suppression Act 2002, section 38(3)(a). This provision had require that proceedings under sections 35 and 55 be heard by the Chief Justice or nominee(s). The
Terrorism Suppression Amendment Act (No 2) 2005 amended this so that proceedings are to be heard by the “Chief High Court Judge”, reflecting the fact that – since the creation of the Supreme Court in New Zealand – the Chief Justice is now effectively two levels of appeal above the High Court.
4 Terrorism Suppression Act 2002, section 38(3)(b).
designation, in a closed court situation, and without the presence of opposing counsel or the respondent. Two qualifications apply. Firstly, classified evidence can only be heard in this way where it is desirable to do so for the protection of either all or part of the information. Secondly, the Crown is required to provide a summary of the information concerned, except to the extent that this might prejudice the interests referred to in section 32(3). The summary must be approved by the Court, following which a copy of that summary will be given to the entity concerned.5 This procedure applies to any appeal to the Court of Appeal under section 41 of the Act.6
Although not directly relevant to the designation process, it should be noted that the latter mechanisms under section 38 of the TSA also apply to applications brought by the Crown for the forfeiture of terrorist property.7
Section 39 of the Terrorism Suppression Act directs itself to the treatment of classified security information in the situation where the Crown is the respondent to proceedings, rather than the applicant. In such cases, the matter must again be heard by the Chief High Court Judge or nominee(s)8 and the Court must also hear security information in the absence of the entity or counsel where the Court is satisfied that this is desirable for the protection of the information.9 In this case, however, the Crown is not obliged to provide a summary of the classified security information.10
Again, it seems that this mechanism applies to any appeal against a decision on whether or not to extend a terrorist designation,11 although there is no provision specifically stating that any appeal against a decision
5 Terrorism Suppression Act 2002, section 38(4)(b).
6 Terrorism Suppression Act 2002, sections 38(5) and 41(2).
7 Terrorism Suppression Act 2002, section 55. Such an application can only be brought by the Attorney-General once a designation has been extended beyond the normal three-year period (under section 35 of the Act) and if the Court is satisfied that forfeiture should be made, rather than simply continuing the prohibition against dealing with the property (under section 9). In other words, forfeiture cannot occur during the first three-year term of a designation.
8 Terrorism Suppression Act 2002, sections 38(3)(a) and 39(3).
9 Terrorism Suppression Act 2002, sections 38(3)(b), and 39(3) and (4).
10 Terrorism Suppression Act 2002, section 39(3). Compare with the requirement to do so in the case of extensions of a designation: section 38(4) of the Act.
11 That being a decision under section 35 of the Terrorism Suppression Act 2002. Section 41
of the Act does not specify the permissible grounds of appeal, simply stating that “a party to an application under section 35 may appeal to the Court of Appeal against the decision of the High Court”.
on an application under section 33 (judicial review) must be subject to section 39.
Clause 22 of the 2007 Bill proposes to repeal sections 38 and 39, substituting them with a single provision concerning classified security information under a new section 38, with the ‘protective’ provisions reading as follows:
38 Procedure in proceedings involving classified security information
(1) This section applies to any proceedings in a court arising out of, or relating to, the making of a designation under this Act.
(2) The Court must determine the proceedings on the basis of information available to it (whether or not that information has been disclosed to or responded to by all parties to the proceedings).
- (3) If information presented, or proposed to be presented, by the Crown includes classified security information,—
- (a) except where the proceedings are before the Court of Appeal, the proceedings must be heard and determined by the Chief High Court Judge, or by 1 or more Judges nominated by the Chief High Court Judge, or both; and
- (b) the Court must, on a request for the purpose by the Attorney-General and if satisfied that it is desirable to do so for the protection of (either all or part of) the classified security information, receive or hear (the relevant part of) the classified security information in the absence of—
- (i) the designated entity concerned; and
- (ii) all barristers or solicitors (if any) representing that entity; and
- (iii) members of the public.
(4) Without limiting subsection (3), if the designated entity concerned participates in proceedings—
- (a) the Court must approve a summary of the information of the kind referred to in section 32(2) that is presented by the Attorney-General except to the extent that a summary of any particular part of the information would itself involve disclosure that would be likely to prejudice the interests referred to in section 32(3); and
- (b) on being approved by the Court, a copy of the statement must be given to the entity concerned.
Subsections (1) to (4) of new section 38 effectively mirror the current form of section 38, with some minor inconsequential amendments.
The Trump Card
A final and important point to note about the current form of sections 38 and 39 (and their proposed replacement) is that the protective provisions under section 38, subsections (2) to (4), are themselves subject to protection. Section 38(7) of the current Act (mirrored by proposed section 38(6)) provides that these protective clauses are to “apply despite any enactment or rule of law to the contrary”. The implications of this statutory exclusion of invalidity are significant (relevant to the operative provisions of the Bill of Rights Act) and are considered further below.
The Designation Process and Natural Justice
The designation process and matters pertaining to it involves a reasonably complex interaction of mechanisms, together with review and appeal procedures.12 Summarising the important features of the process, there are two types of designation (terrorist entity or associated entity), distinguished by the level of current and prior involvement in terrorist conduct. Applicable to both types of designation, there are two levels of designation that can be made by the Prime Minister (interim and final). Interim designations can be made where there is good cause to suspect that an entity satisfies the Act’s test for what is a terrorist or associated entity, whereas final designations require a belief on reasonable grounds that the test has been satisfied.13 The different thresholds applicable have correspondingly different time limitations. Interim designations can only exist for a maximum of 30 days, and can only be made once in respect of any one entity. A final designation can currently continue for a period of three years,14 with the Attorney-General having the ability to extend the designation if s/he satisfies the High Court (on the balance of probabilities) that the test for designation continues to be met.
The consequences of both interim and final designations mainly affect third parties, who are prohibited from dealing with property owned or
12 The designation process and related matters comprise 22 sections of the Terrorism Suppression Act 2002, most of which are reasonably lengthy in themselves.
13 The “test” under the Act is set out in the above discussion concerning terrorist and
associated entities.
14 Assuming that there are no judicial proceedings that might prolong that period: see section 23(h) of the Terrorism Suppression Act, as discussed above at 7.1.1(b) Expiry of
designations. Note that this three year period does not take into account the temporary extension of final designations proposed under the Terrorism Suppression Amendment Bill (No 2) 2004.
controlled by terrorist or associated entities or from providing financial services to them. Naturally, this prohibition indirectly affects the entities themselves, since they will be unable to use their money or property in relations with other. Likewise, reporting obligations apply to property owned or controlled by terrorist or associated entities. In the case of final designations that are extended by the High Court beyond the normal three year period, the Attorney-General can apply to have the property forfeited.
There are no particular difficulties with the latter aspects of the terrorist designation process and its consequences. Of more concern, however, are those aspects of the process relating to the giving of notice, the rights of review and appeal, and the manner in which classified security information is dealt with under such review or appeal. In that regard, a number of features of the TSA are relevant. Firstly, the making of a designation does not contain any procedure by which the alleged terrorist or associated entity can make its case prior to being designated under section 20 or 22.15 Secondly, once a designation is made, any notice given to a designated entity in New Zealand (or its representative in New Zealand) does not need to give reasons for the designation, whether made on an interim or final basis. Next, where a designated entity requests the Prime Minister to revoke a designation, there is no corresponding right to be heard or right to receive information about the basis upon which the designation was made.
Fourthly, where the Attorney-General applies to extend a final designation, the High Court is required to receive any classified security information relating to the application without the presence of the designated entity (or its counsel) if that is desirable for the protection of the information. Having said that, the Attorney-General is obliged to provide a summary of the information to the designated entity, except to the extent that this would involve disclosure of information that would prejudice those interests listed in section 32(3) of the Act. Next, any appeal against a decision of the High Court to extend a designation restricts (in the way just mentioned) the appeal court’s dealings with classified security information.16 Finally, although the Act does not prevent a person from bringing judicial review proceedings arising out of the making of a designation, the High Court is again required to receive any classified security information relating to the application without the presence of the designated entity (or its counsel) if that is desirable for the protection of the
15 See section 29(a) of the Terrorism Suppression Act 2002, which prevents invalidation of a designation “just because... the entity concerned was not... given notice... or a chance to comment...”.
16 Terrorism Suppression Act 2002, section 41.
information - this time without the requirement for the Attorney-General to produce a summary of the information.17
The Issue of Natural Justice
The issue that arises from these features of the statutory designation framework is whether it is consistent with the principles of natural justice, in particular the right of a respondent to be informed of the case against it and the corresponding right to answer the case against it. In particular, are the five situations identified in the preceding paragraph consistent with natural justice? Namely, concerning: (1) the making of a designation without hearing from the alleged terrorist or associated entity; (2) the content of a notice of designation; (3) the manner in which requests to the Prime Minister to reconsider a designation are dealt with; (4) the status of classified security information in proceedings to extend a designation (or any appeal against such proceedings); and (5) the status of classified security information in judicial review proceedings (or any appeal against such proceedings).
A sixth situation is indirectly, but very significantly, affected by the treatment of classified security information in the designation process. As discussed, one of the consequences of designations under the act is to prohibit certain dealings with terrorist or associated entities. The Terrorism Suppression Act includes four such offences: dealing with property, knowing that the property is owned or controlled by a designated entity (or derived from such property); making property, or financial or related services, to an entity, knowing that the entity is designated under the Act; recruiting a person as a member of a group, knowing that the group is a designated entity; and participating in a group, knowing that the group is a designated entity, with the aim of enhancing its ability to carry out, or participate in, a terrorist act.18 In the context of the last-mentioned offence, the writer can see no problem, since the offence is not only linked with designation but also with an intention to facilitate terrorist acts. With the other three offences, however, the key to the offending is that the conduct is otherwise lawful (dealing with property, providing financial services, and recruiting group members) except that it is in respect of an entity that is
17 The rationale behind this difference is unclear, but may be borne out of the fact that section 33 proceedings are not at the instigation of the Crown, whereas section 35 proceedings are initiated by the Attorney-General (and therefore warrant further burdens upon the Crown). Either way, the author does not see that this should make any material difference to the enjoyment of the right to natural justice.
18 Terrorism Suppression Act 2002, sections 9(1), 10(1), 12(1) and 13.
known by the actor to be designated under the Act. What significance does this hold? The problem that arises is where a defendant might seek to challenge the validity of the designation. To give an example:
A (a New Zealand citizen) makes a donation to B (a Muslim organisation in Auckland). B has been made the subject of a final designation as an associated terrorist entity (the Prime Minister concluding under section 22(3)(b)(i) of the TSA, on receiving classified security information, that B [the associated entity] is acting on behalf of C to denounce the action of the United States military in Afghanistan). C is an organisation in Afghanistan, designated under Security Council Resolution 1267 and the Terrorism Suppression Act as a terrorist entity. A [the donor] knows that B [the associated entity] has been designated as an associated terrorist entity, but claims that he and B had no knowledge that C [the terrorist entity] had carried out, or was participating in, any terrorist act. A [the donor] is charged, under section 10(1) of the Terrorism Suppression Act, with making money available to B [the associated entity], knowing that B was designated under the Act.
In that situation, A [the donor] would no doubt want to complain that B [the associated entity] had been improperly designated under the Act - i.e. that the Prime Minister was wrong in concluding that B was an associated entity, since B knew nothing of C’s involvement in any terrorist conduct, and since peaceful protest about the military conduct of the United States in Afghanistan is not unlawful. It is not difficult to imagine such a situation arising. Indeed, fear of such an outcome was the basis of a number of submissions made by the public to the select committee’s hearings on the Terrorism (Bombings and Financing) Bill.19 What, then, might A seek to do?
The first point to make is that A would be unable to make direct use of such an argument as a defence to criminal proceedings. A prosecutor is only required to satisfy a criminal court of the elements of an offence and would, as such, argue that the only relevant issue before the court is whether A [the donor] knew that B [the associated entity] was designated under the Act. A prosecutor would furthermore properly argue that any challenge to the validity of the designation was not an issue for the court
19 See, for example, submissions by the New Zealand Council for Civil Liberties (submission number 22), the Democratic Peoples Republic of Korea Society (submission number 28), the Indonesia Human Rights Committee (submission number 36), the Canterbury Council for Civil Liberties (submission number 45), the Latina America Committee of New Zealand (submission number 88), and the Auckland Council for Civil Liberties (submission number 95). See also Smith JE, New Zealand’s Anti-Terrorism Campaign: Balancing Civil Liberties, National Security, and International Responsibilities, Ian Axford New Zealand Fellowship in Public Policy, December 2003, 61.
exercising its criminal jurisdiction in that matter, but was instead a civil matter. And, indeed, the designation process is a civil one, although the status of the designation would, at the very least, be a relevant factor in sentencing.
However, notwithstanding the fact that a challenge to the validity of a designation could not act as a defence to a criminal charge, such a challenge could act to suspend the criminal proceedings. Taking the same example: A [the donor], as a person with an interest in ascertaining the validity of the designation of B [the associated entity], could initiate proceedings under section 33 of the Terrorism Suppression Act:
33 Judicial review of designations
Nothing in this Act prevents any person from bringing any judicial review (whether under Part I of the Judicature Amendment Act 1972 or otherwise) or other proceedings before a court arising out of, or relating to, the making of a designation under this Act.
In doing so, A [the donor] would seek to have the Prime Minister’s decision concerning B [the associated entity] reviewed. Specifically, section 22(3)(b)(i) (which is the basis of B’s designation in this scenario) provides that the Prime Minister can designate as an associated entity a group that s/he believes on reasonable grounds:
(b) is acting on behalf of, or at the direction of, -
- (i) the terrorist entity, knowing that the terrorist entity has done what is referred to in sub-section (1) [emphasis added]
In that regard, sub-section (1) of section 23 refers to the designation of an entity as a terrorist one if it has knowingly carried out or participated in a terrorist act. In the example given, A [the donor] would seek to argue (on judicial review of the Prime Minister’s decision) that although B [the associated entity] was denouncing the US military role in Afghanistan at the direction of C [the terrorist entity], B did not know that C had carried out or participated in a terrorist act, and that the test under section 22(3)(b)(i) was therefore not satisfied. In more simple words, A would argue that the Prime Minister had improperly concluded that B was an entity within the definition of section 22.
A point made earlier was that A would be unable to make direct use of such an argument as a defence to criminal proceedings. By challenging the validity of the designation under section 33, however, A would no doubt be able to obtain an adjournment of the criminal proceedings to await the
outcome of the civil (judicial review) proceedings.20 The issue of natural justice comes into play with regard to those civil proceedings, since section 39 of the Terrorism Suppression Act could require the High Court to hear the classified security information in the absence of A [the donor] or B [the associated entity]. If the classified security information was the only basis on which the designation of B was made, how is A or B to respond to the Crown’s argument before the High Court that the Prime Minister’s decision was proper? Thus, the issue of natural justice can also arise for a person accused of offences under sections 9, 10 or 12 of the Terrorism Suppression Act 2002.
Sources and Content of the Right to Natural Justice
If natural justice is an issue in the situations identified, then a number of enquiries must be made. The first, to be dealt with under this part of the chapter, is to determine what the various sources of the right to natural justice are. In doing so, it will be necessary to consider and examine the content of the right. Those two enquiries will be shown to lead to a preliminary conclusion that the situations identified conflict with the right to natural justice. Having arrived at that position, this chapter will then consider whether the Act’s designation process can be a valid limitation upon the right to natural justice.
Addressing the first enquiry, there are three relevant “sources” of the right to natural justice (or its equivalent) for the purpose of this chapter: (1) the International Covenant on Civil and Political Rights (ICCPR); (2) the New Zealand Bill of Rights Act 1990 (NZBORA); and (3) the Terrorism Suppression Act itself.21 Each is considered in further detail.
Using the language of the ICCPR, the International Covenant guarantees to all persons the right to a fair hearing:22
Article 14
20 Where a defendant is proceeded against summarily, for example, the Court has an unfettered power to adjourn the hearing of any charge: Summary Proceedings Act 1957, section 45(1).
21 The right, it should be acknowledged, is also a common law one (see Drew v Attorney- General [2001] NZCA 207; [2002] 1 NZLR 58).
22 Note that the balance of Article 14 is limited in its application to criminal proceedings.
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
As can be seen, the provision contains exceptions to the right, which will be considered later in this chapter. At this stage, this examination is concerned with determining the broad content of the right to a fair hearing, which has been recognised by the Human Rights Committee as including the various rules of natural justice. The jurisprudence of the Committee has accepted that Article 14(1) encompasses the principles of equality before courts and tribunals, the need for tribunals to be competent, independent and impartial and to promptly dispose of proceedings.23 Specifically pertaining to the right to a fair and public hearing, the Committee has considered this to include the notion of equality of arms, the right to attend a hearing, the right to respond to a case, and the idea of open justice.24 The Committee has also taken the view that the right to natural justice is not dependent on the status of one of the parties (whether governmental, parastatal or an autonomous statutory entity).25 Presumably, then, this includes decisions of a Prime Minister.
To the extent possible, an ‘equality of arms’26 will be an important factor in the guarantee of a fair hearing. Having said this, the Committee has been reluctant to find breach of this aspect of a fair hearing, so long as the person has been afforded an opportunity to be present, examine witnesses and be represented if that is the person’s wish. In Agudo v Spain,
23 For a more detailed discussion of the jurisprudence of the Human Rights Committee on these points, see Alex Conte, Scott Davidson and Richard Burchill, Defining Civil and Political Rights. The Jurisprudence of the United Nations Human Rights Committee (London: Ashgate Publishing Ltd, 2004) 117-125.
24 Ibid, 122-124.
25 YL v Canada, Human Rights Committee Communication 547/1993, para 9.11. See also Conte, Davidson and Burchill (ibid) 118-119.
26 This is a term used by both the United Nations Human Rights Committee and the European Court of Human Rights to represent the idea of the procedural equality of parties.
See, for example, Wasek-Wiaderek M, Principle of "Equality of Arms" in Criminal Procedure Under Article 6 of the European Convention on Human Rights & its Function in Criminal Justice of Selected European Countries (Leuven University Press, 2000).
for example, the author claimed that there was no verbatim record of the statements of witnesses, experts, parties and counsel but only a summary drawn up by the clerk of the court, so that the proceedings lacked essential guarantees. The Committee failed to see how those facts alone constituted a breach of Article 14(1).27 In Jansen-Gielen v The Netherlands, however, the Committee found that there had been an inequality of arms. The Netherlands Central Appeals Tribunal had failed to append a psychological report (submitted by the author’s counsel) to the case file two days before the hearing, in violation of her right to a fair hearing. The Netherlands argued that the Court had considered that the admission of the report two days before the hearing would have unreasonably obstructed the other party in the conduct of the case. The applicable procedural law did not, however, provide for a time limit for the submission of documents. The Committee found that it was the duty of the Court of Appeal, which was not constrained by any prescribed time limit, to ensure that each party could challenge the documentary evidence which the other filed or wished to file and, if need be, to adjourn proceedings.28
The right to a fair trial in a suit at law, by being present at the hearing, is less clear than in the conduct of criminal proceedings.29 The Committee has commented that Article 14(1) ‘may’ require that an individual be able to participate in person in civil proceedings. In such circumstances the State party is under an obligation to allow that individual to be present at the hearing, even if the person is a non-resident alien. In assessing whether the requirements of Article 14(1) were met in Said v Norway, the Committee noted that the author’s lawyer did not request a postponement of the hearing for the purpose of enabling the author to participate in person; nor did instructions to that effect appear in the signed authorisation given to the lawyer by the author and subsequently presented by the lawyer to the judge at the hearing of a child custody case. In those circumstances, the Committee adopted the view that there was no violation by the state through any failure by the Oslo City Court to postpone the hearing, on its own initiative, until the author could be present in person.30 The Committee went no further to clarify when civil proceedings ‘may’ require that an individual be able to participate in person in civil proceedings. Interesting,
27 Agudo v Spain Human Rights Committee Communication 864/1999, para 9.4.
28 Jansen-Gielen v The Netherlands Human Rights Committee Communication 846/1999, para 8.2.
29 In the case of criminal proceedings, the Committee has been clear about the need to
ensure that an accused is tried in person and the limited restrictions to this rights that are permissible: see Conte, Davidson and Burchill (n 23) 122-123.
30 Said v Norway Human Rights Committee Communication 767/1997, para 11.3.
also, is the fact that the party in Said v Norway was at least represented by counsel and, thereby, allowed to respond in some for to the case against him.
The case of Hermoza v Peru is also highly relevant to the question of the content of the right to a fair hearing.31 Hermoza was an ex-sergeant of the Peruvian police, Guarda Civil, and claimed to have been temporarily suspended from the force on false accusations of insulting a superior officer. When brought before a judge on the charge, he was released for lack of evidence. Notwithstanding that fact, Hermoza was discharged from service by an administrative decision in respect of which he was not permitted to make representations. The Human Rights Committee concluded that those circumstances entailed a breach of Article 14(1) of the Covenant.32 In the individual opinion of Committee members Cooray, Dimitrjevic and Lallah, the Committee members specifically expressed that the principle of audi alteram partem (literally meaning “hear the other side”)33 was part of the right to a fair hearing under the Covenant.34
In summary, Article 14(1) guarantees the right to a fair hearing in civil proceedings, which has been equated with various principles of the right to natural justice. Relevant to the enquiry in this chapter, it has been expressed to include the principle of equality of arms, the right to be present, or at least represented, at a hearing, and the ability to state one’s case in response to the case of an opposing party.
Section 27 of the New Zealand Bill of Rights Act protects three rights: the right to natural justice, the right to seek judicial review, and the right to bring and defend civil proceedings against the Crown on an equal basis.35 As already seen through the expository review of the designation process under the Terrorism Suppression Act, the right to judicial review is specifically guaranteed.36 Thus there are only two provisions of the Bill of Rights to be considered:
27. Right to Justice-
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to
31 Hermoza v Peru, Human Rights Committee Communication 203/1986.
32 Ibid, para 12.
33 Philip Joseph, Constitutional and Administrative Law in New Zealand, (2nd ed, Brookers, 2001) 860.
34 Hermoza v Peru (n 31) para 4.
make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
Before considering the content of these provisions, it is important to note that, in the Solicitor-General’s review of the first draft of the Terrorism (Bombings and Financing) Bill, he advised the Attorney-General that:37
In my view, the process of designation is consistent with BORA and, in particular, s 27(1) thereof.
Regrettably, the Solicitor-General gave no reasons for arriving at that conclusion within his letter of advice. While that advice seems out of step with the discussion that follows, it should be noted that the Solicitor- General was advising on the first redraft of the Bill, which included the Inspector-General of Security and Intelligence being involved in the designation and review process.38
The right to natural justice (subsection (1)) contains two main components: audi alteram partem, the duty to hear both sides of a matter before making a decision; and nemo judex in sua causa, the notion that no one should be a judge in his or her own cause.39 It is the first component that is of relevance to this chapter. Of particular relevance, the duty to hear both sides can include the giving of prior notice, the disclosure of relevant material, the receipt of (written or oral) submissions, representation by counsel, and the giving of reasons for the decision-maker’s finding.40
The first point to note is that the right to natural justice differs in its content as between administrative versus judicial decision-makers. Professor Joseph summarises the point that natural justice does not include a right to a hearing before an administrative decision-maker, but merely a
35 As summarised in Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney,
The New Zealand Bill of Rights (Oxford University Press, 2003) 753.
36 Terrorism Suppression Act 2002, section 33.
37 Letter from the Solicitor-General to the Attorney-General, “re Terrorism Suppression Bill: Slip Amendments – PCO 3814B/11 Our Ref: ATT114/1048 (15)”, 9 November 2001, para 20.
38 As will be discussed later, that role is seen by the author as central to achieving a justifiable balance between the needs of the designation process and the right to natural
justice.
39 Rishworth, Huscroft, Optican and Mahoney (n 35) 754.
40 Joseph (n 33) 860-874.
right to tender written submissions, whereas parties have an unqualified right to be heard orally before the courts.41 Where a hearing is granted, prior notice of the hearing is seen as inherent to the right to be heard.42 In being heard, however, natural justice does not recognise any general right to be represented by legal counsel.43 What it does recognise, however, is that an administrative tribunal has the discretion to permit representation, which must be exercised fairly, and be based on a number of factors identified in R v Secretary of State for the Home Department; ex parte Tarrant: the serious of the allegation and of any potential penalty, whether points of law are to arise, the ability of the person to present the case, the potential for procedural difficulties, the desirability for the prompt disposal of proceedings and the need for an equality of arms.44
Two features of the right to natural justice are particularly important to this chapter: the disclosure of relevant material; and the giving of reasons for a decision-maker’s finding. Central to the audi alteram partem rule is the right to hear the nature and basis of the case, thereby allowing interested parties to respond to the case and, if appropriate, contest or seek to correct the information in issue. In Daganayasi v Minister of Immigration, the New Zealand Court of Appeal quashed the Minister’s refusal to revoke a deportation order, since the Minister’s decision had been based upon a medical report that had not been disclosed to the applicant.45 Where disclosure is made, it must be in a way that affords a person a proper opportunity to consider the material and be thus put in a position to respond. The production of a detailed report at the time of hearing has been held, for example, to be a breach of natural justice by failing to give a person an opportunity to assess the report and make submissions on it.46 Where disclosure is made by way of a summary of information, the summary must disclose what Professor Joseph refers to as a “sufficient account” of the information to make the right to respond a meaningful one.47
The second important aspect of the right to natural justice is the desirability that a decision-maker will give reasons for its decision. Ultimately, however, there is no obligation at law to give reasons, which “places the law out of step with public expectations of transparency and
41 Ibid, 864.
42 Ibid, 860-861.
43 Ibid, 864-866.
44 R v Secretary of State for the Home Department; ex parte Tarrant [1985] 1 QB 251.
45 Daganayasi v Minister of Immigration [1980] 2 NZLR 130.
46 Mockford v New Zealand Milk Board unreported, 14/10/81, Roper J, HC Dunedin.
47 Joseph (n 33) 862.
accountability in decision-making”.48 Notwithstanding this, Chief Justice Davison, in Potter v New Zealand Milk Board, described it as a public responsibility of both courts and administrative authorities to provide reasons:49
The giving of reasons helps to concentrate the mind of the tribunal upon the issues for determination: it enables litigants to see that their cases have been carefully considered and the arguments understood and appreciated; it enables a litigant dissatisfied with a decision to more readily consider whether there are grounds of appeal; and it enables an appellate Court or tribunal to ascertain the determinations of the tribunal on questions of fact, to which the appellate Courts pay deference on the hearing of an appeal and [it] also enables the appellate Court... to know what principles of law have been applied and to consider whether such were correct.
The right to bring and defend proceedings against the Crown (section 27(3) of the NZBORA) is described as being grounded in Dicey’s idea of equality and as comprising two components: the right to bring and defend proceedings; and the right that those proceedings be dealt with on the same basis as if the Crown was not a party.50 In principle, the first component is not affected by the designation process since the Terrorism Suppression Act envisages in its terms that proceedings concerning designations can be both defended and brought against the Crown.51 The latter component is of particular relevance, and mirrors the concept of equality of arms discussed above. As noted in the White Paper on the New Zealand Bill of Rights:52
The individual should be able to bring legal proceedings against the Government, and more generally to engage in civil litigation with it, without the Government enjoying any procedural or jurisdictional privileges.
Preliminary Conclusion
The above analysis can easily lead to the preliminary conclusion that there is an apparent, or prima facie, conflict between the various components of the right to natural justice and the Terrorism Suppression Act, sections 20 and 22 (the making of designations), 26 (notice), 34 (reconsideration by the Prime Minister on application of the entity), 38 and 41 (treatment of
48 Ibid, 871.
49 Potter v New Zealand Milk Board [1983] NZLR 620, 624.
50 Rishworth, Huscroft, Optican and Mahoney (n 35) 767.
51 Terrorism Suppression Act 2002, section 33, 35, 39 and 41.
52 New Zealand Department of Justice, A Bill of Rights for New Zealand (1985) AJHR A6, para 10.177.
classified information in proceedings concerning designation extensions), and 39 (treatment of classified information in proceedings arising out of the making of a designation). In each of the five situations identified above, these provisions have the potential effect of excluding all or most of the reasons for the making of a designation. This will be the case where the Prime Minister’s decision to designate is based entirely, or largely, upon classified security information, or where the notice of designation fails to give reasons for the designation.
In such circumstances (which clearly impact upon the rights, obligations or interests of a designated or accused person), a person is being denied access to the reasons for the designation and is thereby denied the opportunity to “answer the case”. In the situation of reconsiderations by the Prime Minister under section 34, the person has no right to be heard at all.
The question now becomes whether there is an actual conflict or inconsistency. To determine this, one needs to give careful consideration to a number of further issues. Are the rights concerned able to be limited within the framework of the ICCPR, and do the limitations imposed by the Terrorism Suppression Act fit within any such permissible limitations? Similarly, are the limitations justifiable within the framework of section 5 of the Bill of Rights, and how do sections 4 and 6 affect the relationship between the limitations and the expression of the right to natural justice within the NZBORA? Next, what implications are there if the limitations are justifiable under one instrument (e.g. the Bill of Rights) but not under the other (e.g. the International Covenant)?
The Designation Process as a Limitation upon Natural Justice
Limiting Natural Justice under the ICCPR
The first of the questions just posed was this: are the rights concerned able to be limited within the framework of the ICCPR, and do the limitations imposed by the Terrorism Suppression Act fit within any such permissible limitations? As seen in the discussion above, Article 14 of the ICCPR only permits a limitation upon the right to a fair and open trial by permitting the press and public to be excluded “from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made
public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”. The jurisprudence of the Human Rights Committee has not extended this exception to the right. Neither the words of Article 14, nor the jurisprudence of the Committee, suggest that the right to a fair hearing can be limited in the way it is under the designation process within the Terrorism Suppression Act.
As such, the earlier preliminary conclusion that the designation process is in breach of the principle of natural justice, enshrined in the ICCPR through the right to a fair hearing in Article 14, must stand as a final conclusion. Although Article 14(1) is not listed within Article 4(2) of the Covenant – setting out rights that may not be derogated from in times of emergency – the position remains that New Zealand has not lodged a declaration of emergency under Article 4. As such, it cannot claim to be derogating from the right to a fair hearing as a result of any state of terrorist emergency.
Limiting Natural Justice under the NZBORA
In considering the question of whether natural justice can be properly limited under the Terrorism Suppression Act within the framework of the New Zealand Bill of Rights Act, the answer does not lie in simply applying the section 5 justified limitation provision of the latter Act. Application of the Bill of Rights brings into play what has been described as the “unholy trinity” of sections 4, 5 and 6.53 Much of that is an exercise in statutory interpretation and, as such, it is important to identify the precise language of each provision that is to be examined.54
The making of designations is done by the Prime Minister under section 20 (interim designations) or 22 (final designations). The authority of the Prime Minister is contained within subsections (1) to (3) of those sections (what has earlier in this chapter been described as the “tests” for designation):
(1) The Prime Minister may designate an entity as a terrorist entity under this section if the Prime Minister [has good cause to
53 That phrase having been coined by Dr James Allen in his article “The Operative Provisions - An Unholy Trinity” [1995] Bill of Rights Bulletin 79.
54 These have been earlier identified as raising six situations that are inconsistent with the principles of natural justice.
suspect - section 20(1)] [believes on reasonable grounds - section 22(1)] that the entity has knowingly carried out, or has knowingly participated in the carrying out of, 1 or more terrorist acts.
(2) On or after designating an entity as a terrorist entity under this Act, the Prime Minister may designate 1 or more other entities as an associated entity under this section.
(3) The Prime Minister may exercise the power given by subsection
(2) only if the Prime Minister [has good cause to suspect - section 20(3)] [believes on reasonable grounds - section 22(3)] that the other entity-
(a) is knowingly facilitating the carrying out of 1 or more terrorist acts by, or with the participation of, the terrorist entity (for example, by financing those acts, in full or in part); or
(b) is acting on behalf of, or at the direction of,-
- (i) the terrorist entity, knowing that the terrorist entity has done what is referred to in subsection (1); or
- (ii) an entity designated as an associated entity under subsection (2) and paragraph (a), knowing that the associated entity is doing what is referred to in paragraph (a); or
(c) is an entity (other than an individual) that is wholly owned or effectively controlled, directly or indirectly, by the terrorist entity, or by an entity designated under subsection
(2) and paragraph (a) or paragraph (b).
The provision does not exclude the ability to hear from an alleged terrorist or associated entity, although the drafters of the Act clearly anticipated that there would be no such hearing, section 29 providing that:
No designation under section 20 or section 22 is invalid just because-
(a) the entity concerned was not, before the designation was made, given notice that it may be made, or a chance to comment on whether it should be made, or both:
Adopting the approach advocated by the New Zealand Court of Appeal in Moonen, and explained in Chapter 8, the first step to be taken is to identify the different interpretations of the words contained in the provision being examined, with a view to determining the application of section 4 and 6 of
the NZBORA.55 One might thereby argue that, since sections 20 and 22 do not exclude the right to be heard by the Prime Minister or the right to be informed of the basis upon which the designation is being considered, then one interpretation that is open (and one most consistent with the NZBORA right to natural justice) is that the Prime Minister is obliged to hear the alleged entity and provide it with a copy of the information being considered.
However, such an interpretation would produce an absurd result. Firstly, not all entities being designated will necessarily be resident in New Zealand, or even have representatives in New Zealand. Secondly, such an interpretation would not cater for the special status of classified security information, which must surely be protected (and is able to be protected, by proportionate means, in the view of the author). The additional problem concerns the role of the Prime Minister and is one of common sense and reality. As head of State, and ultimately the effective head of security intelligence services and of the military, it is suggested that the Prime Minister cannot be expected to him/herself hear alleged terrorist or associated entities. In any event, that would not establish an independent and impartial process. In saying this, it is not suggested that the Prime Minister would fail to act in an impartial manner, but the reality is that the office of the Prime Minister is an executive rather than a judicial one. In contrast, the office of the Inspector-General of Security and Intelligence is one (in the view of the author) that does guarantee impartiality and independence.56 It is suggested that, in order to achieve a proper balance between the exercise of the right to be heard and the protection of the integrity of the designation review process, reform is again necessary. The reforms advocated below seek to introduce a process by which designations are automatically reviewed by the Inspector-General of Security and Intelligence, with certain rights to be heard and be advised of the reasons for the designation. In effect, the proposal is to re-establish the Inspector- General’s review as had been proposed within the first redraft of the Terrorism (Bombings and Financing) Bill. In the discussion of those reforms, it will be shown that such a process, while still limiting the right to natural justice, would nevertheless be proportionate and thereby justifiable in a free and democratic society.
55 Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, 17.
56 While it has to be acknowledged that there have been criticisms of the Inspector-General in this regard (see David Small, “A Critique of the Terrorism Suppression Bill”, available
online at the ARENA website, online: <http://www.arena.org.nz> (last accessed on 2 November 2002), the author posits that the structure of the Inspector-General of Intelligence
As to notice, section 26 of the Terrorism Suppression Act provides:
A notice under section 21(d)(i) or section 23(f)(i) (to notify the designated entity of the making of the designation under section 20 or section 22) –
(a) must state the section under which the designation is made, and whether the entity concerned is designated as a terrorist entity or as an associated entity:
(b) may describe the entity concerned by reference to any name or names or associates or other details by which the entity may be identified:
(c) must state the maximum period for which the designation may have effect or, if it is made under section 22, the maximum period for which it may have effect without being extended:
(d) must include general information about how it may be reviewed and revoked:
(e) must include any other information specified for the purposes of this paragraph by regulations made under this Act
The provision does not exclude the ability to inform the entity of the information upon which a designation was based, nor does it require it. In attempting to identify the different interpretations of the words contained in the provision, one might argue that, since section 26 does not exclude the provision in such a notice of information upon which a designation is based, then an open interpretation of section 26 (and one most consistent with the NZBORA right to natural justice) is that notice under section must inform the entity of the information upon which the designation was based.
That is certainly an attractive argument and one that, in the author’s view, is correct. There are, however, two practical problems that remain. The first is the simple fact that section 26 does not state that such information is required and that, as such, an innocent application of the section could cause notice to be given without the provision of such information. The more important problem is that, although section 26 should be interpreted as requiring information to be given, such an interpretation provides no guidance on how classified security information should be dealt with. As will be seen in the discussion that follows, the protection of classified security information is seen by the author as an important objective and an interpretation of section 26 should not, it is proposed, be such that it would require disclosure of all classified information. The protection of classified information in the provision of
information could, as argued later, be justifiable in a free and democratic society (section 5). As such, this is something that calls for reform.57
Requests by an entity to have a designation reconsidered by the Prime Minister are provided for under section 34(1) of the Terrorism Suppression Act:
The Prime Minister may at any time revoke a designation made under section
20 or section 22, either on the Prime Minister’s own initiative or on an application in writing for the purpose-
(a) by the entity who is the subject of the designation; or
(b) by a third party with an interest in the designation that, in the Prime Minister’s opinion, is an interest apart from any interest in common with the public.
Again, the provision does not exclude rights (in this case, any accompanying right to be heard by the Prime Minister or to receive information about the basis upon which the designation was made), nor does it require or allow it. Again, one might therefore conclude that application of section 6 of the New Zealand Bill of Rights Act requires this provision to be interpreted in a manner that is most consistent with the right to natural justice, thereby requiring the Prime Minister to hear an applicant and first provide the applicant with information about the basis upon which the designation was made.
Here, there are three perceived problems with this position. As before, the first practical problem is that any right to be heard or provided with information is not expressed and might therefore lead to an inconsistent application. The second again relates to the problem of protecting classified security information, as earlier discussed.
The additional problem in the context of reviews by the Prime Minister is one of common sense and reality. As head of State, and ultimately the effective head of security intelligence services and of the military, it is suggested that the Prime Minister cannot be expected to him/herself hear a designated entity. A practical answer may lie in the delegation of this authority by the Prime Minister. In any event, and under either option, this would not establish an independent and impartial process. In saying this, it is not suggested that the Prime Minister would fail to act in an impartial
and Security Act 1996 does guarantee (to the extent possible) the impartiality and independence of the office.
57 Proposals for reform of the designation process are set out later within this chapter.
manner, but the reality is that the office of the Prime Minister is an executive rather than a judicial one. In contrast, the office of the Inspector- General of Security and Intelligence is one (in the view of the author) that does guarantee impartiality and independence.58 It is suggested that, in order to achieve a proper balance between the exercise of the right to be heard and the protection of the integrity of the designation review process, reform is again necessary. The reforms advocated below seek to introduce a process by which entities can be heard when requesting a review by the Prime Minister, but that such hearing be conducted by the Inspector- General for Security and Intelligence.
As explained in the beginning of this chapter, the protection of classified security information is something that is addressed several times within the Terrorism Suppression Act 2002, under sections 38 and 39. The Terrorism Suppression Amendment Bill 2007 is to replace these provisions with a single mechanism under new section 38. As also identified earlier, the protected status accorded to classified security information is itself protected by what has been described as a ‘trump card’ (current section 38(7); new section 38(6)). The effect of this trump card is that, notwithstanding any finding that section 38 is inconsistent with the right to natural justice, section 38 is nevertheless to be applied.59 Section 4 of the NZBORA provides the trump card with that effect.
Two issues remain. The first is whether section 38 can be provided with more than one meaning, since section 6 will require the meaning most consistent with the NZBORA to be adopted. Next, although section 4 requires the trump card to prevail, the question in principle is whether the limitations upon natural justice imposed by these provisions are justifiable in a free and democratic society.
On the question of potential interpretations of the provisions, the author takes the view that the provisions have been drafted with sufficient precision that only one meaning is open in each case. If the Attorney-
58 While it has to be acknowledged that there have been criticisms of the Inspector-General in this regard (see Small n 56), the author take the view that the structure of the Inspector- General of Intelligence and Security Act 1996 does guarantee (to the extent possible) the impartiality and independence of the office.
59 The use and effect of classified security information in the designation process has been expressed by the responsible select committee chair, Graham Kelly MP, as “a necessary
evil”: see John E Smith, New Zealand’s Anti-Terrorism Campaign: Balancing Civil Liberties, National Security, and International Responsibilities, Ian Axford New Zealand Fellowship in Public Policy, December 2003, 62.
General requests, and the Court is satisfied that “it is desirable to do so for the protection of (either all of part of) the classified security information”, then the Court must hear that information in the absence of the designated entity, its counsel and the public (section 38(3)(b)). The question of “desirability” is linked only to the protection of classified information. Having said this, the question of the ‘desirability’ of excluding information from one party to proceedings for the purpose of protecting classified security information may (depending on the approach taken by the Chief High Court Judge or his or her delegates) be applied in a robust manner to give effect to natural justice. At least in theory, the Judge could determine that is it never desirable to exclude the enjoyment of the right to natural justice for the protection of classified security information. It has to be acknowledged, however, that this is an assessment of what the Court might do and cannot therefore be relied upon with any certainty. Secondly, where the Attorney-General is required to provide a summary of information “except to the extent that a summary of any particular part of the information would itself involve disclosure that would likely prejudice the interests referred to in section 32(3)”, this is again a proviso precise in its language.
In the application of section 5 of the Bill of Rights Act, it is firstly notable that the provisions at hand do not exclude the rights to be informed of the case and to present the other side, but they limit the rights. This, as discussed in chapter 9, is something that the Supreme Court of Canada has seen as important to determining whether provisions of an enactment are capable of justification. This feature is preserved by virtue of the fact that the provisions call for their application on the particular facts of each case. The hearing of evidence in the absence of the entity or counsel will only occur “if it is desirable to do so” for the protection of classified security information. Likewise, the exclusion of classified security information from a summary will only occur “to the extent that a summary of any particular part of the information would itself involve disclosure that would be likely to prejudice the interests referred to in section 32(3)”.
Those factors would also go towards an argument that the limitations at hand are reasonable and proportionate. In some cases, that may be true. However, it is suspected that domestic designations are likely to be based upon high-level classified information, and solely upon such information. In those circumstances (even if they are rare), a designated entity (and its counsel) will be excluded from hearing information presented to the court and may thereby learn nothing of the reasons for the designation and be in a position where it cannot answer the case against it. Such situations would entirely oust the observance of natural justice, as enshrined in the audi
alteram partem principle. Such situations would not, it is concluded by the author, be proportionate and justified in a free and democratic society.
Before closing on this discussion, there are two matters to be addressed. The first is that there are some parallels in New Zealand legislation to the TSA’s treatment of classified security information. The Crown Proceedings Act 1950 provides the Crown with exemption from disclosing in civil proceedings documentation that would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand.60 This exemption, however, pertains only to such prejudicial documentation and relates to ‘normal’ civil proceedings in which the Crown is involved and in respect of which classified information is unlikely to form the substance of the case. The Immigration Act 1987 also provides for the special treatment of classified security information (which is given an identical definition to that under the TSA).61 As a safeguard, the process is combined with rights of review and the inclusion in the process of legal counsel and the Inspector-General of Security and Intelligence.62 The provision of full disclosure is also a matter restricted in the case of information relating to the application for and making of warrants to intercept communications under the Misuse of Drugs Act 1976 and the Crimes Act 1961.63 That process, however, does not deny an accused access to evidence that will be tendered against him or her and therefore does not impact upon the ability for an accused to answer the prosecution case.64 Finally, a process very similar to that under the Terrorism Suppression Act is being proposed under the Identity (Citizenship and Travel Documents) Bill 2004.65
The second matter to be addressed is that the Solicitor-General’s office has, in advice to the Attorney-General in 2001 and 2006, given some attention to the treatment of classified security information.66 In his advice
60 Crown Proceedings Act 1950, section 27
61 Immigration Act 1987, section 114B
62 Immigration Act 1987, sections 114A – 114R.
63 Misuse of Drugs Act 1976, sections 14-29, and Crimes Act 1961, sections 312A-312Q.
64 This was held to be the case by the Court of Appeal in R v Saifiti [1994] NZCA 387; [1994] 2 NZLR 403, 408.
65 For a brief overview of the Bill, see New Zealand Law Society, ‘Delay changes to citizenship criteria, NZLS says’, LawTalk, 14 February 2005, 5.
66 In the context of advice on the Terrorism (Bombings and Financing) Bill, see the letter from the Solicitor-General to the Attorney-General of 9 November 2001 (n 37) paras 21-22. For advice on the Terrorism Suppression Amendment Bill 2007, see the letter from Crown Counsel Val Sim and Allison Bennett to the Attorney-General, Legal Advice. Consistency with the New Zealand Bill of Rights Act 1990: Terrorism Suppression Amendment Bill. Our Ref: ATT395/24, 4 December 2006, paras 6 and 7.
of 2001, the only point made by the Solicitor-General concerning the justifiability of the consequent limitations upon natural justice was contained in a footnote, in which he said:67
In addition, I draw comfort from the decision of the Canadian Supreme Court in Chiarelli v Canada (Minister of Employment and Immigration) (1992) 90 DLR (4th) 289 in which that Court upheld against Charter attack a scheme under which, where security and intelligence issues were at stake classified security information need not be revealed to a deportee at a hearing before the Security Intelligence Review Committee.
Reference to this, and similar decisions, was made in the 2006 advice of the Crown Law Office to the Attorney-General.68 The summary of the Supreme Court of Canada’s decision is, however, misleading. The Supreme Court concluded, on the particular facts, that fundamental justice had been observed by the Security Intelligence Review Committee through the provision by the Committee to the respondent of documents summarising information and giving (in the view of the Court) sufficient information to know the substance of the allegations against him and to be able to respond.69 The provisions of the Terrorism Suppression Act, in contrast, has the potential to result in no substantive information being provided to an interested party. This key aspect of the decisions referred to has not been highlighted in either letter of advice to the Attorney-General.
A matter of clarification needs to be addressed before proceeding any further. Many have wrongly assumed that the case involving Mr Ahmed Zaoui, an Algerian national who entered New Zealand in December 2002 and was detained by authorities until December 2004, was a matter involving his designation and/or detention under the Terrorism Suppression Act.70 Mr Zaoui’s matter in fact involved his claim for refugee status, the application of the Immigration Act 1987 and processes outside the Terrorism Suppression Act instigated by the Director of Security. Mr Zaoui had been granted refugee status by the Refugee Status Appeals Authority, but the New Zealand Government sought his removal based upon section
67 Ibid, footnote 2.
68 Ibid, para 6.
69 Chiarelli v Canada (Minister of Employment and Immigration) (1992) 90 DLR (4th) 289, 291.
70 This is a question that has commonly been presented to the author during the conduct of various seminars and discussions on the subject of the Terrorism Suppression Act 2002.
129X of the Immigration Act 1987 and Article 33(2) of the Refugee Convention, the latter providing that the principle of nonrefoulment (literally non-return) does not apply to a person in respect of whom there are reasonable grounds for regarding as a danger to the security of the country.
Having said this, there are some useful statements made by the New Zealand Court of Appeal and High Court concerning the use of classified security information in the issuing by the Director of Intelligence of a security risk certificate against Mr Zaoui. In an appeal against judicial review proceeding in the High Court, President Anderson of the Court of Appeal identified the relevant issue as follows:71
As a general proposition, for a system to be fair, it would have to recognise and apply the ordinary principles of natural justice which in New Zealand are affirmed by s 27 of the New Zealand Bill of Rights Act 1990 (‘BORA’). A fundamental aspect of natural justice is the right to know, and to be accorded the opportunity of being heard in respect of matters which might be considered in the course of a decision affecting a person’s rights or interests. But it may sometimes be the case that the Contracting State’s grounds for regarding a refugee as a danger to the security of that country are based on classified information, the disclosure of which, to others including the refugee facing refoulement, may compromise the source of the information or State security operations. This can produce a conflict between the refugee’s rights to natural justice and the State’s interest in its own security.
Notwithstanding that conflict, the High Court had held that the Director of Intelligence was required to provide Mr Zaoui with a summary of the allegations against him, provided that the information did not disclose classified security information which could not be divulged under the relevant provisions of the Immigrations Act.72 The High Court’s finding on that account was not the subject of appeal. Useful reference to Justice Williams’ judgment in the High Court can therefore be made:73
[I]n struggling to reconcile their obligations under the international human rights covenants with national security concerns in a world plagued by more prevalent terrorism, other countries - including countries which have actually been subjected to terrorist attacks - have nonetheless found ways and adopted procedures which do not exclude those thought to be threats to security from procedural safeguards designed to ensure that, in a limited way, they can meet and challenge what is alleged against them through procedures which comply
71 Attorney-General v Zaoui (No 2) [2004] NZCA 244; [2005] 1 NZLR 690, para 4.
72 Zaoui v Attorney-General [2004] 2 NZLR 339, 383.
73 Ibid, paras 162-163.
in as full a measure as possible with natural justice. For the most part, overseas experience such as that reviewed in the authorities and the affidavits filed on Mr Zaoui’s behalf provides for:
(a) Review by an independent functionary of unquestioned integrity;
(b) The provision of summaries of classified information to the person concerned shorn of matter likely to identify source or proscribed from disclosure; and
(c) Procedural fairness in the sense of the right to call evidence and present a case in opposition.
These seem consistent themes in countries comparable with New Zealand. Two of the three already apply in this country. There seems no reason why the third should not apply. Certainly, Part IVA and s 114I [of the Immigration Act] do not forbid it.
That position, it is posited by the author, is entirely consistent with the conclusion made earlier that the mechanisms under the Terrorism Suppression Act are currently inconsistent, in principle, with the requirements of natural justice.
Against the background of this analysis, a mixed and somewhat peculiar situation is exposed. Firstly, it appears that sections 20, 22, 26 and 34(1) - relating to the making of a designation, the provision of notice of a designation and the review of designations by the Prime Minister - can be given interpretations that are consistent with the right to natural justice. The outcome of doing so, however, is problematic for a number of reasons, most importantly that a “NZBORA-consistent” interpretation neither caters for the special requirements of classified security information, nor the special nature of the Prime Minister’s office. The conclusion drawn has been that reform is necessary.
More significantly, it has been concluded that although the provisions of the Terrorism Suppression Act concerning classified security information cannot be invalidated or held to be ineffective through application of the Bill of Rights, these provisions are nevertheless in breach of Article 14(1) of the ICCPR. New Zealand is thus in a position where the application and effect of its domestic law (the Terrorism Suppression Act and the Bill of Rights Act) renders it in breach of its international obligations (under the International Covenant on Civil and Political Rights). What are, or might be, the consequences of this?
As already established earlier in this thesis, the internal law of a nation cannot be relied upon as a justifiable reason for beach of that nation’s
international obligations. As also seen, the Human Rights Committee has expressly directed that New Zealand must, when implementing its counter- terrorist obligations under Security Council resolution 1373 (2001), ensure that this is done in full conformity with the ICCPR.74 The failure of New Zealand to do so will likely result in adverse comments being made by the Human Rights Committee in the next periodic report under Article 40 of the Covenant. If the matter is made the subject of a communication under the ICCPR Optional Protocol, its could again see the Committee render adverse comments and direct New Zealand to amend its laws.75 Thus, this chapter comes to the final issue to be considered: that of reform.
Reform
Given the different outcomes in the application of New Zealand’s domestic versus international human rights instruments, and the resulting tension between the two, it now falls to be considered whether the relevant restrictions under the Terrorism Suppression Act should be abandoned or modified. They should not, it is posited, be abandoned. The protection of classified security information, and the terrorist designation process, are clearly both important matters. Abandoning the mechanisms by which classified security information can be protected would not only prejudice New Zealand’s ability to use, gain and exchange such information, but it would also prejudice its work in countering terrorism.
However, if New Zealand wants to comply with its international obligations, reform is clearly necessary. To that end, three levels of reform are advocated. All three reforms are suggested to be necessary for New Zealand to implement its counter-terrorist designation process in a manner that is at least proportionate with the objectives sought to be achieved. It should be noted that, strictly, speaking, the reforms would still not fall within any expressed permissible limitation upon the right to a fair hearing under the ICCPR. As discussed, Article 14(1) only permits restriction upon the “open justice” nature of the right. Notwithstanding that fact, it is suggested that the following reforms would balance the restriction upon rights so in a manner that is proportionate (and, as such, compliant with
74 Human Rights Committee, Concluding observations of the Human Rights Committee: New Zealand, 17 July 2002, CCPR/CO/75/NZL, para 11.
75 A communication can only be lodged by a person that is a victim of a breach of a right
under the ICCPR: see Article 5 of the First Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
section 5 of the New Zealand Bill of Rights Act). As a consequence, it is proposed that the Human Rights Committee would be loathe to make overly adverse comments or directions against New Zealand in situations where it could be shown that New Zealand had taken all reasonable steps to ensure that the right has only been limited to the extent strictly necessary and in a manner that seeks to limit the right to the least possible extent and with safeguards preventing an abuse of the process.
Notice of Designations
As already seen, section 26 of the Terrorism Suppression Act requires notice of a designation to be made to an entity within New Zealand (or its representative in New Zealand) that has been designated as a terrorist or associated entity, on either an interim or final basis. Despite the various requirements for a notice, nothing requires such notice to include information about the information upon which the designation has been made. The first recommendation for reform is to amend section 26 of the Act, requiring information to be given of the reason(s) for the designation, subject to the need to protect classified security information. The following amendment to section 26 is recommended (new subsection (e)):
A notice under section 21(d)(i) or section 23(f)(i) (to notify the designated entity of the making of the designation under section 20 or section 22) –
(a) must state the section under which the designation is made, and whether the entity concerned is designated as a terrorist entity or as an associated entity:
(b) may describe the entity concerned by reference to any name or names or associates or other details by which the entity may be identified:
(c) must state the maximum period for which the designation may have effect or, if it is made under section 22, the maximum period for which it may have effect without being extended:
(d) must include general information about how it may be reviewed and revoked:
(e) [must include a summary of the information upon which the designation was based, to the extent that this does not prejudice the interests referred to in section 32(3):]
[(f)] must include any other information specified for the purposes of this paragraph by regulations made under this Act.
The aim of the new subsection (e) is to guarantee the right to be informed of the basis upon which a designated entity’s interests have been affected, while at the same time protecting (to the extent necessary) the special status
of classified security information. The limitation, in that regard, has been drawn from the wording of section 38(3)(b) of the Act.
Reinstatement of the Inspector-General’s Review
The second reform recommended is the reinstatement of a modified form of the review of designations by the Inspector-General of Security and Intelligence.76 There are a number of anticipated objectives and benefits in such a review process.
The first proposed role of the Inspector-General would be to exercise the function envisaged within the first redraft of the Terrorism Suppression Bill: to undertake a mandatory review of all designations and consider, in that review, whether the tests for designation were properly applied and satisfied, when weighed against the information received by the Prime Minister. In doing so, the Inspector-General would act as an internal check upon the exercise of the significant decision-making power of designation. Not only is this important to the integrity of the designation process itself, but also to the criminal responsibility implications of such designations.77 By introducing an immediate and mandatory checking mechanism, this also addresses the lack of notice and hearing prior to the making of a designation. It is posited that the addition of this checking mechanism transforms the latter limitation upon natural justice into a proportionate and justifiable one.
Naturally, the power of review should come with the ability on the part of the Inspector-General to act upon his or her findings. Under the proposed regime in the Terrorism (Bombings and Financing) Bill, the Inspector- General was to have the power to revoke designations upon review78 and it is proposed that any reinstatement of the Inspector-General’s role under the TSA include the same authority to revoke. In essence, as summarised by the Solicitor-General in his review of the Bill when giving advice to the
76 As had been contained within the Terrorism (Bombings and Financing) Bill (see the select committee’s interim report, Foreign Affairs, Defence and Trade report, Interim Report on the Terrorism (Bombings and Financing) Bill, 8 November 2001), but then removed in the later Terrorism Suppression <Bombings and Financing> Bill (see the committee’s final report, Foreign Affairs, Defence and Trade Committee, Final Report on the Terrorism
<(Bombings and Financing)> Suppression Bill, 22 March 2002, 11).
77 Since the Terrorism Suppression Act 2002 prohibits certain dealings with designated entities.
78 Terrorism (Bombings and Financing) Bill [first redraft], clause 17T(1).
Attorney-General, the Inspector-General’s review would amount to a de novo determination.79 The decision of the Inspector-General should, it is proposed, be accompanied with notice of the decision being given to the designated entity. By doing so, the entity will be in a better position to assess whether to seek judicial review of the decision.
As was provided for in the Bill, it is proposed that the Inspector- General’s review function be able to be triggered by the designated entity. The Bill had provided, in that regard, that if a designated entity had unsuccessfully applied to the Prime Minister to have a designation revoked (current section 34(1) of the TSA), then it could apply for review by the Inspector-General.80
The second role for the Inspector-General would be additional to that originally proposed by the Foreign Affairs, Defence and Trade Committee in its interim report on the Bill. It is again proposed that this be mandatory and undertaken at the same time as the latter review of any designation. The question for the Inspector-General to consider here, though, would be whether the notice under section 26 has been properly made, having specific regard to the proposed new subsection (e):
(e) [must include a summary of the information upon which the designation was based, except in the case of classified security information to the extent that this might prejudice the interests referred to in section 32(3):]
This second role would require the Inspector-General to determine two things. First, whether the summary of information provided under the notice was a proper and fair reflection of the information upon which the designation was based. Next, it would require him or her to determine whether any exclusion of classified security information was necessary to the extent required to protect the interests referred to in section 32(3).
This power of review should again be accompanied with the ability on the part of the Inspector-General to take any necessary action. In this case, s/he should be able to direct that the notice be amended to include any additional information s/he deems necessary – that is, information upon which the designation was based, except classified security information (to the extent that this might prejudice the interests referred to in section 32(3)).
79 Terrorism (Bombings and Financing) Bill [first redraft], clause 17P(1): see letter from the Solicitor-General to the Attorney-General 9 November 2001 (n 37) para 16.
The next proposed role for the Inspector-General addresses the specific concern of the manner in which requests to the Prime Minister to reconsider a designation are dealt with under section 34. The point has been made that there is currently no right, in such circumstances, to be heard or to receive information about the basis upon which the designation was made. The latter aspect has been addressed, it is suggested, by recommending the new section 26(e) concerning the provision of information in the notice of designation and the associated power of review of the notice by the Inspector-General.
What is recommended here is that the Inspector-General be empowered to receive submissions from an entity that requests review of their designation by the Prime Minister. However, it is posited that a careful balancing act must be achieved. The author has earlier criticised the fact that any reconsideration by the Prime Minister of a designation does not provide for the designated person to be heard. As already indicated, that is not to suggest that the Prime Minister should him/herself be required to hear a designated entity. Likewise, the Inspector-General should also not be expected to hear any frivolous evidence or submissions. It is posited that in seeking to maintain the integrity of any process, the checks upon that process should themselves be reasonable and prudent. Thus the following process is recommended:
80 Terrorism (Bombings and Financing) Bill [first redraft], clause 17N(2).
81 As currently permitted under section 34(1) of the Terrorism Suppression Act 2002.
82 In other words, s/he should confirm that the designation is valid.
applicant that the applicant’s written notice does not disclose any information which challenges the basis upon which the designation was made and that, in the absence of such further information, s/he has reached the conclusion that the designation should stand (or be revoked) and has made a recommendation to the Prime Minister accordingly. By doing so, the applicant is thereby advised of the Inspector-General’s recommendation and the reasons for it.
Such a process, in the view of the author, would both guarantee the right to be heard (where there is something to be heard about) and at the same time limit the Prime Minister’s involvement in that process and restrict frivolous applications from taking the time of both the Prime Minister and Inspector- General. What must be remembered, as discussed earlier, is that there is no right to be heard in person by an administrative tribunal. There is only a right to make representations. By instituting a system where representations can be made to the Inspector-General (with the ability for him or her to hear submissions in person), that right is preserved. Furthermore, by notifying an applicant of the Inspector-General’s recommendations, the applicant is in a better position (it is suggested) to assess whether to seek judicial review of the recommendation, or of the Prime Minister’s later decision to designate or refuse to revoke a designation.
The recommendations thus far have addressed the early stages of the designation process, not all dependent on action by a designated entity or interested third party. The final recommendation considered now concerns the representation of an entity or interested third party in judicial proceedings under the Terrorism Suppression Act. Specifically, those proceedings relating to the extension of a designation (sections 35 and 41), or arising out of the making of a designation (section 33). In the case of such proceedings, the current position is as follows:
These restrictions are clearly imposed for the purpose of protecting classified security information and are, to that extent, important ones. It has been concluded, however, that they are not proportional. The recommendation made here is to address these restrictions by permitting an entity (that is the subject of extension proceedings) and/or interested person (the subject of review proceedings) to be represented by counsel and thereby ensure that those persons’ interests are represented and put forward to the Court.
83 Terrorism Suppression Act 2002, section 41.
The principal objection to representation by counsel is likely to be that representation by counsel does not avoid the need to protect certain classified security information. What is proposed here, though, is the establishment of a special panel of legal counsel that have an appropriate level of security clearance so that they may be present during the otherwise “closed hearing” of classified information when section 38(3)(b) of the TSA is applicable. Such counsel, it is proposed, should also be entitled to make submissions to the Court on the content of any summary of information to be presented by the Attorney-General under section 38(4) of the Act. Doing so, it is posited, transforms what can otherwise be a blanket exclusion of disclosure into a justifiable and proportionate limitation upon the duty of disclosure. At least by having counsel present during the hearing and consideration of all information before the Court, respondents or applicants in proceedings under sections 33, 35, 39, and 55 of the Terrorism Suppression Act can be sure that they have a level of capacity to respond to the case against them. The proposed reform would at the same time preserve the important need to protect classified security information.
For the sake of completeness, two further matters should be addressed. Firstly, it must be recognised that there is no direct equivalent to this proposal in any established procedures in New Zealand law. There are, however, some analogies. Panels of specialised counsel are not a new phenomenon. New Zealand retains panels of military counsel for the purpose of proceedings under the Armed Forces Discipline Act 1971; panels and categories of criminal legal aid counsel for ordinary criminal proceedings in New Zealand courts (administered under the Legal Services Act 2000); and specialised counsel for the child under the Care of Children Act 2004. Although these panels do not have (as the central requirement for being on the panels) the need for special security clearance,84 they do have their own special requirements for relevant expertise.
The use of security-cleared counsel is, however, something that exists in other jurisdictions. Such panels exist in the United Kingdom, for example, under a Special Commissions system initially introduced for the purpose of dealing with classified information pertaining to immigrations appeals.85 The role of Special Commission, with its panel of cleared counsel, has been gradually extended to include the hearing of other types of appeals where confidential information is important, including matters pertaining to terrorist designations.
84 Members of military defence panel must have a certain level of security clearance, but by virtue of the fact that they are members of the armed forces rather than as a specialised feature of their status as counsel.
85 See the Special Immigration Appeals Commission Act 1997 (UK).
The further issue that should be touched upon is that of choice. Given that any panel of security-cleared counsel is likely to be limited, could a non-Crown party to proceedings under the Terrorism Suppression Act complain that they have little or no choice in who is to represent them? This, however, is not seen as problematic and there are, again, analogies to be seen. Those charged within criminal offences who are granted legal aid have for a significant time had no choice at all in what counsel is to be assigned to represent them. It has been only a recent initiative of the Legal Services Agency to introduce a system of “preferred counsel”, whereby an applicant for criminal legal aid can nominate counsel to be represented. Although, in practise, preferred counsel is usually appointed, there is no obligation upon the Legal Services Agency to do so. Likewise, in family proceedings, it is the Family Court that appoints counsel for the child under section 7 of the Care of Children Act 2004, or section 30 of the Guardianship Act 1968. Appointment of counsel is at the sole discretion of the Family Court and the New Zealand High Court has recently pronounced that the child to be represented has no right to determine what counsel is to act.86
Conclusion
The process by which designations are made, reviewed, extended, and capable of being challenged is a complex one. It is central to the operation of the Terrorism Suppression Act anti-financing regime, and to New Zealand’s compliance with the Security Council’s identification of terrorist organisations. The process is important to New Zealand’s contribution to the international regime towards the suppression of the financing of terrorism. Designations are also important to the way in which others are able to deal with designated entities, and to the interests of the entity concerned. Entities are, by reason of their designation, restricted in their property and financial dealings and may be subject (upon extension of a final designation) to forfeiture of their property to the Crown. Third parties are prohibited from financing, supporting, recruiting into, or providing financial or other property-related services to terrorist or associate entities. Financial institutions are bound to report financial transactions. In short, terrorist designations impact, in significant terms, upon both designated entities and those that might interact with them.
86 In the matter of R, unreported, 30/07/04, Kean J (HC), Auckland, para 61.
Identified within this chapter are a number of features of the designation process that give rise to serious concerns about the compliance of the process with various aspects of the right to natural justice, under both the current regime and the proposed amended regime under the Terrorism Suppression Amendment Bill 2007. Most significant is the principle of hearing the other side, audi alteram partem, featuring within that the notions of equality of arms, the disclosure of information, the ability to make submissions and the receipt of reasons for the making of decisions. It has been concluded that the current regime under the Terrorism Suppression Act does not comply with New Zealand’s obligations under the International Covenant on Civil and Political Rights (Article 14(1)). Likewise, it has been concluded that although aspects of the regime cannot be invalidated by domestic courts in the application of the New Zealand Bill of Rights Act, features of the regime are otherwise incompatible with the normal standards of justifiable limitations upon rights in a free and democratic society.
A number of reforms have therefore been recommended within this chapter. Their aim is to produce a designation process that is workable, achieves compliance with New Zealand’s international counter-terrorist obligations, and protects the special status of classified security information. At the same time, the reforms aim to achieve a proportional balance between those objectives and the enjoyment of rights to justice.
Chapter 16
Terrorist Offences and the Definition of “Terrorist Acts” under NZ Law
New Zealand’s criminal and investigative laws have undergone some significant changes in the name of counter-terrorism since the events of September 11. Some are well-known and others have emerged with little notice. This is the first of four chapters considering the criminal process aspects of the suppression of terrorism and the investigation and prosecution of terrorist offences.
Drawing from the more detailed examination of New Zealand’s counter-terrorism law, the chapter begins by summarizing the various new offences in New Zealand law on the subject of terrorism, most of which were introduced under the Terrorism Suppression Act 2002, as well as those to be introduced under the Terrorism Suppression Amendment Bill 2007. It will be explained how the definition of “terrorist act” within the Terrorism Suppression Act is one of the central features of these proscriptions. Given the pivotal role of that definition, and the controversial nature of the definition of terrorism in the international community,1 attention will then turn to whether the definition meets the requirements of the principle of legality and the recommendations of the UN Special Rapporteur on the promotion and protection of human rights when countering terrorism.
Terrorist and Terrorism-Related Offences
The Terrorism Suppression Act 2002, and legislative amendments consequent to what began as the Counter-Terrorism Bill 2003, have introduced a number of terrorism-specific offences.2 A good number of these are linked to two features of the Terrorism Suppression Act. The first is the establishment of a reasonably complex definition of a “terrorist act”.3
1 See, infra, chapter 2.
2 For a detailed account of the provisions and framework of these pieces of legislation see, infra, chapter 5.
3 Terrorism Suppression Act 2002, sections 4 and 5.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
The second, making up a large portion of the Terrorism Suppression Act, comprises a mechanism by which individuals and groups may be designated as terrorist or associated entities.4 The latter process and its consequences have already been the subject of focused attention.5 The definition of “terrorist act” under the Terrorism Suppression Act will be considered within this chapter.
Current Offences
The various offences established in 2002 and 2004 are uncontroversial in nature. A total of ten offences appear under the Terrorism Suppression Act, four of which were added subsequent to the Counter-Terrorism Bill. On the subject of the suppression of the financing of terrorism (relevant to the corresponding International Convention, and Resolution 1373), the Act prohibits the financing of terrorism,6 dealing with terrorist property (having the effect of freezing that property),7 and making property, or financial or related services, available to designated entities.8 Related to the other three international conventions, the Act makes it unlawful to undertake a terrorist bombing,9 to use or move unmarked plastic explosives,10 and creates two offences involving nuclear materials.11 The Act also prohibits recruiting members of terrorist groups,12 participating in terrorist groups,13 and
4 Terrorism Suppression Act 2002, sections 20 to 42.
5 See, infra, chapters 14 and 15
6 Terrorism Suppression Act 2002, section 8, prohibiting the wilful provision or collection of funds (directly or indirectly), intending (or knowing) that those funds are to be used to carry
out a “terrorist act” without lawful justification or reasonable excuse.
7 Terrorism Suppression Act 2002, section 9, making it an offence to deal with property known to be owned, controlled or derived by a designated entity, without lawful justification or reasonable excuse. The parameters of “dealing” with terrorist property are defined within subsection (5).
8 Terrorism Suppression Act 2002, section 10, prohibiting the provision (direct or indirect) of any property, or any financial or related services, to (or for the benefit of) a terrorist entity, without lawful justification or reasonable excuse.
9 Terrorism Suppression Act 2002, section 7, prohibiting the intentional and unlawful delivery, placement, discharge or detonation of an explosive or other lethal device with the intention to cause death (or serious injury) or extensive destruction.
10 Terrorism Suppression Act 2002, section 13B (added through what began as clause 12 of the Counter-Terrorism Bill), prohibiting the possession, use, manufacture, importation or
export of unmarked plastic explosives, except as allowed by the Hazardous Substances and New Organisms Act 1996 or by the Environmental Risk Management Authority.
11 Terrorism Suppression Act 2002, sections 13C and 13D (added through what began as
clause 12 of the Counter-Terrorism Bill), prohibiting a range of conduct relating to nuclear material, including its importation and its use to intimidate.
harbouring or concealing terrorists.14 There have, as yet, been no prosecutions under the Terrorism Suppression Act.
The Counter-Terrorism Bill led to the creation of three further offences under the Crimes Act 1961. New sections 298A, 298B and 307A of the Crimes Act make it an offence to cause disease or sickness in animals; contaminate food, crops, water or other products; or make threats of harm to people or property to achieve terrorist ends. Had the Waiheke Island incident15 in May 2005 led to the actual release of the foot and mouth on the Island, this would have constituted a terrorism-related offence of causing disease or sickness in animals (section 298A of the Crimes Act) and, depending on the person’s intention,16 an offence of contaminating food (section 298B). Even without such a release, although again depending upon the intention of the person and also upon the affect of the action, the incident may have constituted an offence against section 307A of the Crimes Act.17
An important feature of the Counter-Terrorism Bill concerns its consequent amendment of the Sentencing Act 2002. Where offending before a sentencing court forms part of, or involves, a “terrorist act” (as defined by the Terrorism Suppression Act), this is to be treated as an
12 Terrorism Suppression Act 2002, section 12, making it an offence to recruit another person into an organisation or group, knowing that the organisation or group is either a designated entity or participates in “terrorist acts”.
13 Terrorism Suppression Act 2002, section 13, prohibiting participation in an organisation or group, knowing that the organisation or group is either a designated entity or participates in “terrorist acts”, and for the purpose of enhancing the ability of the group to carry out terrorist acts.
14 Terrorism Suppression Act 2002, section 13A (added through what began as clause 12 of the Counter-Terrorism Bill), making the intended assistance of a person to avoid arrest, escape custody, or avoid conviction an offence where it is known (or ought to be known) that the person has carried out, or intends to commit, a “terrorist act”.
15 For further information on the incident, see the website of the New Zealand Ministry of Agriculture and Forestry, ‘Operation Waiheke Island’, online: <http://www.maf.govt.nz/ mafnet/press/operation-waiheke> (last accessed 30 August 2005).
16 Section 298B of the Crimes Act 1961 requires the actus reus to be accompanied by: (a) an
intention to harm a person, or recklessness as to whether any person is harmed; or (b) an intention to cause major economic loss to a person, or recklessness in that regard; or (c) and intention to cause major economic damage to the national economy of New Zealand, or recklessness in that regard.
17 Section 307A of the Crimes Act 1961 requires the actus reus to be accompanied by an
intention to achieve a number of effects set out within subsection (2). Subsection (3) demands that the threat(s) have a certain level of impact for the conduct to constitute an offence against section 307A.
aggravating feature.18 Where murder is committed as part of a terrorist act, a minimum period of 17 years’ imprisonment must be imposed.19
Changes under the Terrorism Suppression Amendment Bill 2007
The Terrorism Suppression Amendment Bill 2007, introduced in March 2007, seeks to make two changes to the nature and scope of terrorist and terrorism-related offences in New Zealand.
The first change proposed under the 2007 Amendment Bill is the removal of ‘avoidance of doubt’ provisions concerning terrorist financing offences. Sections 8(2) and 10(2) currently provide that, for the avoidance of doubt, the provisions of sections 8 and 10 do not make it an offence to provide or collect funds intending that they be used, or knowing that they be used, for the purpose of advocating democratic government or the protection of human rights and that is not involved in any way in the carrying our of terrorist acts. The Explanatory Note to the Bill describes that these provisions have created uncertainty and that removal of the provisions will remove ambiguity.20 The author is a little sceptical about this proposal however, particularly since neither the Explanatory Note nor the Bills Digest provide reasons as to how or why the avoidance of doubt provisions have created uncertainty. To the contrary, the avoidance of doubt provisions appear to be beneficial, since they make it clear that these provisions are not meant to interfere with the lawful support by New Zealanders of organisations promoting human rights or democracy.
One of the functions of the Terrorism Suppression Amendment Bill 2007 is to facilitate New Zealand’s ratification of the new International Convention for the Suppression of Acts of Nuclear Terrorism (the Nuclear Terrorism
18 Sentencing Act 2002, section 9(ha).
19 Sentencing Act 2002, section 104(ea).
89 Press Release, ‘Amendments to Tighten Terrorism Suppression Act’, online:
<http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=21825> (last accessed on 8 January 2005). See also:New Zealand Ministry of Justice, Terrorism Suppression Amendment Bill (No 2) 2004, Government Bill, 242-1, Explanatory Note, presented to the House 14 December 2004, 2.
20 Terrorism Suppression Bill. Government Bill 105-1. Explanatory Note, presented to the House on 21 March 2007, 2.
Convention);21 and treaty action in respect of amendments adopted in respect of the Convention on the Physical Protection of Nuclear Material (the Nuclear Material Convention).22 Sections 13C and 13D of the Terrorism Suppression Act 2002 currently prohibit a range of conduct relating to nuclear material, including its importation and its use to intimidate. As a result of changes adopted by the IAEA to the Nuclear Materials Convention, the 2007 Amendment Bill will make corresponding changes to applicable offences under the Act. A further set of offences, involving radioactive material and radioactive devices and incorporating obligations under the Nuclear Terrorism Convention, is to be introduced under clauses 14 to 16 of the Terrorism Suppression Amendment Bill 2007.
The 2007 Amendment Bill will also create a new offence of engaging in a terrorist act (as defined in section 5(1)), publishable by a maximum of life imprisonment.23 The 2007 Bill does not, however, make any changes to the current definition of terrorist acts.
The Definition of Terrorist Acts
As discussed within chapter 2, there has been no overwhelming consensus within the international community on a definition of terrorism, resulting in the lack of a definition within relevant Security Council and General Assembly resolutions. The result has been that individual States have been required to formulate their own definitions of the term. In the New Zealand context, this is addressed within sections 4 and 5 of the Terrorism Suppression Act. The question to be addressed in this part of the chapter is whether this definition is consistent with the approach advocated by the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism in his 2005 report to the Human Rights Commission.24
21 International Convention for the Suppression of Acts of Nuclear Terrorism (the Nuclear Terrorism Convention), adopted and opened for signature on 15 April 2005 under General Assembly resolution 58/290 (2005), UN GAOR, 58th Sess, 91st Plen Mtg, UN Doc A/Res/58/290 (2005).
22 Convention on the Physical Protection of Nuclear Material (the Nuclear Material Convention), opened for signature 3 March 1980, 1456 UNTS 124 (entered into force 8 February 1987). See further, infra, chapter 5.
23 Clause 6 of the Terrorism Suppression Amendment Bill 2007.
24 See the Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Promotion and Protection of Human Rights, ESCOR (62nd Sess) UN Doc E/CN.4/2006/98 (2005), chapter III.
Definitions under the Terrorism Suppression Act 2002
Section 5 of the Terrorism Suppression Act, combined with definitions contained within section 4(1) and conventions listed in Schedule 3, provides for three distinct types of “terrorist acts”. The term is significant for two reasons. It is linked to offences such as the financing of terrorist acts.25 Its also plays a role in the designation of terrorist or associated entities, which include those entities that have perpetrated terrorist acts. As already highlighted, there is no proposal for amendment of this definition under the 2007 Amendment Bill.
The first type of terrorist act defined reflects the international obligations assumed by New Zealand under the various international anti-terrorist conventions. Sections 4(1)26 and 5(1)(b) prohibit acts that constitute an offence under one of the nine terrorism conventions listed in Schedule 3 to the Act. Interestingly, Schedule 3 does not list the Convention for the Suppression of the Financing of Terrorism, the Convention on the Marking of Plastic Explosives for the Purpose of Detection, nor the Convention on Offences and Certain Other Acts Committed On Board Aircraft. In submissions to the Foreign Affairs, Defence and Trade Committee on the Counter-Terrorism Bill, the writer notified the Committee of this omission.27 Clause 22 of the Counter-Terrorism Bill proposed to amend Schedule 3 to the Terrorism Suppression Act by including in the list of treaties the Convention on the Physical Protection of Nuclear Material. The author submitted to the Committee that this was not sufficient since, upon the enactment of the Counter-Terrorism Act, New Zealand was to become party to all twelve of the international conventions on counter-terrorism. The Terrorism Suppression Act should therefore include in its definition of a “terrorist act”, it was submitted, any act against any of those twelve conventions.28 The Committee did not, however, recommend amendment of clause 22, nor did it report on the reasons for this.
25 Terrorism Suppression Act 2002, section 8.
26 Through its definition of “act against a specified terrorism convention” and “specified
terrorism convention”, and through the associated list of conventions contained in Schedule 3 to the Act.
27 Alex Conte, Submissions to the Foreign Affairs, Defence and Trade Committee on the Counter-Terrorism Bill (27-1, 2003), 12 May 2003, part IIIA.
28 Ibid, paras 23 and 24.
The second type of terrorist act defined is that of terrorist acts in armed conflict. Sections 5(1)(c) and 4(1) make terrorist acts in armed conflict those:29
(a) that occurs in a situation of armed conflict; and
(b) the purpose of which, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or abstain from doing any act; and
(c) that is intended to cause death or serious bodily injury to a civilian or other person not taking an active part in the hostilities in that situation; and
(d) that is not excluded from the application of the Financing Convention by article 3 of that Convention.
Finally, a more general (albeit complex) definition is provided within the balance of section 5. A terrorist act is:
29 As defined by section 4(1).
30 Section 5(2).
31 Sections 5(2)(a) and (b).
32 Section 5(3).
(e) introduction or release of a disease-bearing organism, if likely to devastate the national economy of a country.
The UN Special Rapporteur’s Approach
In the first substantive report of the Special Rapporteur on counter- terrorism under his mandate, reflections and recommendations were made concerning the proper characterisation of ‘terrorism’ and the consequent definitional requirements of proscribing terrorist conduct.
None of the thirteen conventions on anti-terrorism contain a comprehensive definition of the term ‘terrorism’. Rather, the conventions are operational in nature and confined to specific subjects, whether air safety, maritime navigation and platforms, the protection of persons, or the suppression of the means by which terrorist acts may be perpetrated or supported. Neither do resolutions of the various United Nations bodies adopt a definition, save that the Security Council has expressed in its resolutions 1269 and 1566 that all acts of terrorism are unjustifiable regardless of their motivation.33 The first observation to be made in this regard is that four recent documents utilise a very useful trigger in determining what conduct, in the absence of a comprehensive definition, should be characterised as ‘terrorist’ by linking the term to existing conventions on terrorism. The first is the Council of Europe Convention on the Prevention of Terrorism, adopted in May 2005, which defines a “terrorist offence” as any of the offences within 10 of the 12 anti-terrorism conventions in force (excluding the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft and the Convention on the Marking of Plastic Explosives for the Purpose of Detection).34 All of the offences within the COE Convention are thus linked to the offences created by and definitions within the universal conventions on countering terrorism that are currently in force. Next, in proscribing the financing of certain conduct, Article 2(1)(a) of the International Convention for the Suppression of the Financing of Terrorism takes a similar approach, linking itself to 9 of the 11 other terrorism
33 SC Res 1269, UN SCOR, 4053rd Mtg, UN Doc S/Res/1269 (1999) para 1, and SC Res 1566, UN SCOR, 5053rd Mtg, UN Doc S/Res/1566 (2004) para 3.
34 Council of Europe Convention on the Prevention of Terrorism (adopted 16 May 2005, not
yet entered into force as at July 2006) 16 Council of Europe Treaty Series 196. The list of conventions mirrors the list contained within the International Convention for the Suppression of the Financing of Terrorism, but also includes the latter Convention.
conventions in force at that time. Finally, Security Council resolution 1566 (2004), as well as the Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, also make reference to conduct prohibited under the existing conventions on aspects of terrorism.35
The use of the counter-terrorism conventions as a trigger for determining what conduct is to be proscribed in the fight against terrorism is, in the absence of a universal and comprehensive definition of ‘terrorism’, the proper starting point.36 Although subject-specific, the conventions are universal in nature, so that the use of offences described in them can be treated as broadly representative of international consensus. This approach must be qualified in one respect, to note that this linkage is not applicable in the case of the Convention on the Marking of Plastic Explosives for the Purpose of Detection. Because the Convention does not actually proscribe any conduct, but instead places obligations upon States relating to the marking of explosives, it cannot be used as a ‘trigger offence’ treaty.37
By itself, however, this approach is not sufficient to determine what conduct is truly ‘terrorist’ in nature. To that extent, the expression of the link to existing conventions within the High-Level Panel report is not fully satisfactory:38
...any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature and context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act [emphasis added].
The point to be made can be illustrated with reference to the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft. The Convention calls on States to establish jurisdiction over acts that may or do jeopardize the safety of a civil aircraft, or of persons or
35 SC Res 1566 (n 33) para 3; and Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility UN Doc A/59/565 (2004) para 164(d).
36 As advocated by the Special Rapporteur in his report (n 24) para 33.
37 The Convention on the Marking of Plastic Explosives for the Purpose of Detection (opened for signature 1 March 1991, entered into force 21 June 1998) ICAO Doc 9571, Articles 2 and 3(1).
38 Secretary-General’s High-level Panel report (n 35) para 164(d).
property therein, or which jeopardize good order and discipline on board.39 While this certainly would capture conduct of a terrorist nature, the description of acts over which States must establish jurisdiction is very broad and likely also to include conduct with no bearing at all to terrorism. Thus, the High-Level Panel formulation of “any action, in addition to actions already specified by the existing conventions on aspects of terrorism” is problematic, since not all acts caught under these conventions (the Tokyo Convention being a prime example) will be of a terrorist nature. It is notable in that regard that neither the European Convention on the Prevention of Terrorism, nor the International Convention on the Suppression of the Financing of Terrorism, link themselves to the Tokyo Convention.
The solution to the problem just identified can be drawn from Security Council resolution 1566. Although the resolution did not purport to define the term ‘terrorism’, it called on all States to cooperate fully in the fight against terrorism and, in doing so, to prevent and punish acts that have the following three cumulative characteristics:40
(a) acts, including against civilians, committed with the intention of causing death or serious bodily injury, or the taking of hostages; and
(b) irrespective of whether motivated by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, also committed for the purpose of provoking a state of terror in the general public or in a group of persons or particular persons, intimidating a population, or compelling a government or an international organization to do or to abstain from doing any act; and
(c) such acts constituting offences within the scope of and as defined in the international conventions and protocols relating to terrorism.
The third criterion represents the ‘trigger-offence’ approach already identified. The important feature of the resolution is the cumulative nature of its characterization of terrorism, requiring the trigger-offence to be accompanied with: the intention of causing death or serious bodily injury
39 Convention on Offences and Certain Other Acts Committed on Board Aircraft (opened for signature 14 September 1963, entered into force 4 December 1969) 704 UNTS 219, Articles
1(1) and (4), and 3(2).
40 SC Res 1566 (n 33) para 3.
(or the taking of hostages); for the purpose of provoking terror, intimidating a population, or compelling a government or an international organization to do or to abstain from doing any act. This cumulative approach acts as a safety threshold to ensure that it is only conduct of a terrorist nature that is identified as terrorist conduct. Not all acts that are crimes under national or even international law, are acts of terrorism, nor should be defined as such.41
By way of further example, there are clear parallels between acts of terrorism and other international crimes, including crimes against humanity (whether in the terms set out in the Statute of the International Criminal Court, or the proscription of such crimes under general international law). As already identified, the Security Council, General Assembly, and Commission on Human Rights have also identified terrorism as something that: endangers or takes innocent lives; has links with transnational organized crime, drug trafficking, money-laundering, and trafficking in arms as well as illegal transfers of nuclear, chemical and biological materials; and is also linked to the consequent commission of serious crimes such as murder, extortion, kidnapping, assault, the taking of hostages and robbery.42 Notwithstanding such linkages, counter-terrorism must be limited to the countering of offences within the scope of, and as defined in, the international conventions and protocols relating to terrorism, or the countering of associated conduct called for within resolutions of the
41 As advocated by the Special Rapporteur (n 24) para 38.
42 See: SC Res 1269 (n 33) preambular para 1; SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001) para 4; SC Res 1377, UN SCOR, 4413rd Mtg, UN Doc S/Res/1377 (2001) para 6; SC Res 1456 (n 22) preambular paras 3 and 6; SC Res 1540, UN SCOR, 4956th Mtg, UN Doc S/Res/1540 (2004) preambular para 8; GA Res 3034 (XXVII), UN GAOR, 27th Sess, 2114th Plen Mtg, UN Doc A/Res/27/3034 (1972) para 1; GA Res 31/102,
UN GAOR, 31st Sess, 99th Plen Mtg, UN Doc A/Res/31/102 (1976) para 1; GA Res 32/147, UN GAOR, 32nd Sess, 105th Plen Mtg, UN Doc A/Res/32/147 (1977) para 1; GA Res 34/145, UN GAOR, 34th Sess, 105th Plen Mtg, UN Doc A/Res/34/145 (1979) para 1; GA Res 36/109, UN GAOR, 36th Sess, UN Doc A/Res/36/109 (1981) para 1; GA Res 48/122, UN GAOR, 48th Sess, 85th Plen Mtg, UN Doc A/Res/48/122 (1993) preambular para 7; GA Res 49/185, UN GAOR, 49th Sess, 94th Plen Mtg, UN Doc A/Res49/185 (1994) preambular para 9; GA Res 50/186, UN GAOR, 50th Sess, 99th Plen Mtg, UN Doc A/Res/50/186 (1995) preambular para 12; GA Res 52/133, UN GAOR, 52nd Sess, 70th Plen Mtg, UN Doc A/Res/52/133 (1997) preambular para 11; GA Res 54/164 54/164, UN GAOR, 54th Sess, 83rd Plen Mtg, UN Doc A/Res/54/164 (1999) preambular para 13; GA Res 56/160, UN GAOR, 56th Sess, 88th Plen Mtg, UN Doc A/Res/56/160 (2001) preambular para 18; GA Res 58/136, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/Res/58/136 (2004) preambular para 8; GA Res 58/174, UN GAOR, 58th Sess, 77th Plen Mtg, UN Doc A/Res/ 58/174 (2003) preambular para 12; CHR Res 2001/37, UN Doc E/CN.4/Res/2001/37, preambular para 16 and operative para 2; and UNCHR Res 2004/44, UN Doc E/CN.4/Res/2004/44, preambular para7.
Security Council, when combined with the intention and purpose elements identified in Security Council resolution 1566. That an act is criminal does not, by itself, make it a terrorist act.
A cumulative approach is, in fact, the one taken in defining prohibited conduct under the International Convention against the Taking of Hostages. Hostage-taking is defined as the seizure or detention of a person (a hostage) accompanied by a threat to kill, injure or continue to detain the hostage, in order to compel a third party to do or to abstain from doing any act. To that extent, hostage-taking (as described) encapsulates all three characteristics identified within Security Council resolution 1566, except that it does not expressly state that the motivations of such conduct cannot render it justifiable.
It must be recognised, however, that the recently adopted International Convention for the Suppression of Acts of Nuclear Terrorism is at odds with this cumulative approach. The Convention requires States parties to prohibit the possession or use of nuclear material or devices with the intent:
(1) to cause death or serious bodily injury; or (2) to cause serious property damage or damage to the environment; or (3) to compel a person, organization or State to do or abstain from doing any act.43 The wording of Article 2(1) does not fit with Security Council resolution 1566, treating the resolution’s first two characteristics (intent to cause death or injury or the taking of hostages; for the purpose of influencing conduct) as alternative, rather than cumulative requirements. The UN Special Rapporteur has expressed concern that, just as in the case of the Tokyo Convention already discussed, this may capture conduct that does not meet the general criteria for defining what acts are terrorist in nature.44
By way of summary, it is essential to ensure that the term ‘terrorism’ is confined in its use to conduct that is of a genuinely terrorist nature. The three-step characterisation of conduct to be prevented, and if not prevented punished, in the fight against terrorism in Security Council resolution 1566 takes advantage of the currently agreed upon offences concerning aspects of terrorism by using these as ‘trigger-offences’ and goes on to establish an appropriate threshold by requiring that such offences are also: committed with the intention of causing death or serious bodily injury, or the taking of hostages; and for the purpose of provoking a state of terror, intimidating a
43 International Convention for the Suppression of Acts of Nuclear Terrorism, adopted and opened for signature under GA Res 58/290, UN GAOR, 58th Sess, 85th Plen Mtg, UN Doc A/Res/58/290 (2005), art 2(1). See also paras (2) to (4) of art 2, which set out party and associated offences.
44 Special Rapporteur’s report (n 24) 41.
population, or compelling a government or international organization to do or abstain from doing any act.
The approach just described is not inconsistent with a number of directions by, and recommendations of, the Security Council concerning conduct in support of terrorist offences. By way of example, and although not phrased in mandatory language, Security Council resolution 1624 calls on States to prohibit and prevent the incitement to commit a terrorist act or acts.45 Again, the resolution does not define what terrorist acts are. The answer lies in making reference back to the three-step cumulative methodology of resolution 1566. Only the incitement of conduct (which itself meets the three characteristics) should be treated as the “incitement to terrorism”. While the incitement of other criminal conduct might be unlawful, and making it punishable may in some cases even be required under Article 20(2) of the International Covenant on Civil and Political Rights or Article
4 of the International Convention for the Elimination of Racial Discrimination, such incitement should not be characterized as “incitement to terrorism”.
This confinement of ‘conduct in support’ type offences and State obligations by reference back to the three-step cumulative methodology of resolution 1566 is equally applicable to the Security Council’s calls upon States to: themselves refrain from providing any form of support to those involved in terrorist acts;46 prevent the commission of terrorist acts;47 bring to justice any person who supports, facilitates, participates, or attempts to participate in the financing, planning, preparation or commission of terrorist acts or provides safe haven to terrorists;48 prevent the movement of terrorists;49 ensure, prior to the granting of refugee status, that the person claiming asylum has not planned, facilitated or participated in terrorist acts;50 and prevent and suppress all active and passive support to terrorism.51
45 SC Res 1624, UN SCOR, 5261st mtg, UN Doc S/Res/1624 (2005) para 1(a) and (b). See also SC Res 1373 (n 42) para 5(3), which: “Declares that acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations”.
46 SC Res 1373 (ibid) para 2(a).
47 Ibid para 2(b).
48 Ibid para 2(c) (d) and (e). See also SC Res 1566 (n 33) para 2, and SC Res 1456 (n 22) para 3.
49 SC Res 1373 (n 42) para 3(f) and (g).
In addition to the question of what type of conduct should be characterised as ‘terrorist’ in nature for the purpose of establishing criminal offences, human rights law and the rule of law impose certain requirements. These help in countering the negative consequences of the lack of an agreed definition of terrorism. Article 15(1) of the International Covenant on Civil and Political Rights, which is a non-derogable right under the Covenant, is particularly instructive, providing that:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
The first requirement of Article 15(1) is that the prohibition of terrorist conduct must be undertaken by national or international ‘prescriptions of law’. The general demands of this expression have already been identified. Terrorism offences should also plainly set out what elements of the crime make it a terrorist crime. Similarly, where any offences are linked to “terrorist acts”, there must be a clear definition of what constitutes such acts.52 Arising from the need for precision, and to avoid use of the fight against terrorism as an excuse to unnecessarily extend the reach of criminal law, it is essential that offences created under counter-terrorist legislation, along with any associated powers of investigation or prosecution, be limited to countering terrorism.
The final element of Article 15 of the International Covenant concerns non-retroactivity. Any provision defining a crime must not criminalize conduct that occurred prior to its entry into force as applicable law. Likewise, any penalties are to be limited to those applicable at the time that any offence was committed and, if the law has subsequently provided for the imposition of a lighter penalty, the offender must be given the benefit of the lighter penalty.53
50 SC Res 1373 (ibid) para 2(h).
51 SC Res 1456 (n 22) para 1.
52 Special Rapporteur’s report (n 24) para 46.
53 Special Rapporteur’s report (n 24) para 49.
Assessing New Zealand’s Definitions
Outlined earlier were the three definitions of “terrorist acts” under New Zealand’s Terrorism Suppression Act 2002.
The first of these, by operation of section 4(1) and 5(1)(b), reflects most of the terrorism-related conventions by prohibiting acts that constitute an offence under one of the nine conventions listed in Schedule 3 of the Act. The first point to note, as already mentioned, is that all conventions should be listed in Schedule 3. Measuring this definition against the Special Rapporteur’s approach, and Security Council resolution 1566, however, this methodology is too broad. It uses the terrorism-related conventions to create ‘trigger offences’ but does not then introduce elements of consequence (intention to cause death or serious bodily injury – para 3(a) of resolutions 1566) and intent (provoking a state of terror, intimidating a population, or compelling a government or international organisation to do or abstain from doing something). In short, this first definition fails to adopt the cumulative approach advocated by both the Security Council and the UN Special Rapporteur.
In contrast to the first definition under the Terrorism Suppression Act, the second definition (under sections 4(1) and 5(1)(c)) does make reference to consequences (section 4(1)(c)) and intent (section 4(1)(b)) but fails to link itself to one of the terrorism-related conventions. Section 4(1)(a) instead simply refers to conduct that occurs in a situation of armed conflict. As explained by the UN Special Rapporteur, such an approach is overly broad in the absence of a universal, comprehensive and properly confined definition of terrorism.
The catch all definition under the balance of section 5 does link itself to the consequences of causing death or serious bodily injury (section 5(3)(a)) and the intent of inducing terror or compelling a government or organisation to act in a certain manner (section 5(2)). Notwithstanding these links, the catch all definition suffers from various short-comings when measures against Security Council resolution 1566. First, it fails to use the existing
operation definitions under the terrorism-related conventions as a trigger- mechanism. Secondly, it includes consequences that either fall outside the scope of consequences identified in paragraph 3(a) of resolution 1566, or are insufficiently restricted in their terms. Section 5(3) is at issue in this regard, although subsection (3)(a) has been identified as being appropriate since it talks of the intention to cause death or serious bodily injury. As to the balance of section 5(3), the following comments are made:
Conclusion
A number of concerns have been identified in this chapter with the criminal offence provisions enacted under New Zealand’s counter-terrorism law, and with the definitions of “terrorist acts” under the Terrorism Suppression Act 2002. As the offence provisions currently stand, there is nothing to
warrant concern. Changes under the Terrorism Suppression Amendment Bill 2007, however, will see the removal of avoidance of doubt provisions in sections 8 and 10, which seems neither necessary nor desirable. The Bill is also to introduce a new offence, punishable by up to life imprisonment, of committing a “terrorist act”. This brings into play the definitions of that term under sections 4(1) and 5, all of which have been identified as going beyond the type of conduct to be proscribed in the fight against terrorism. While the creation of a general offence of committing a terrorist act is fine in principle, the problems identified with the definitions of terrorist acts makes such an offence overly broad. This is problematic not only to criminal law offences, but also to the domestically-based terrorist designation process, which is linked to the definition of terrorist acts.
Chapter 17
As explained in chapter 5, three main stages of legislative action on counter-terrorism were taken in New Zealand since 11 September 2001. The second of these phases came about through what began as the Counter- Terrorism Bill 2003, which was ultimately enacted as a series of separate Amendment Acts, rather than as one stand-alone Act of Parliament.1 The purpose of the Bill was to allow New Zealand to accede to the Convention on the Physical Protection of Nuclear Material, and the Convention on the Marking of Plastic Explosives for the Purpose of Detection.2 The Explanatory Notes to the Counter-Terrorism Bill identify two further objectives: implementing the remaining obligations under Security Council resolution 1373 (2001); and establishing investigative powers to assist in the detection of terrorists, terrorist acts and terrorist or associated entities.3 The significance of these stated reasons becomes particularly important when examining the investigative tools incorporated within the Summary Proceedings Act 1957, which are the subject of this and the following chapter. This chapter focuses upon surveillance mechanisms, while chapter 18 will examine new police powers impacting upon the privilege against self-incrimination.
Authorisations to intercept communications and attach tracking devices to people or property are to be found under both the Crimes Act 1961 and Summary Proceedings Act 1957 following the legislative amendments
1 The provisions of the Counter-Terrorism Bill became incorporated into three sets of extant legislation: the Crimes Act 1961, under Part 1 of the Counter-Terrorism Bill; the Terrorism Suppression Act 2002, including consequential amendments to the Mutual Assistance in Criminal Matters Act 1992, under Part 2 of the Counter-Terrorism Bill; and the Misuse of Drugs Amendment Act 1978, the New Zealand Security Intelligence Service Act 1969, the Sentencing Act 2002, and the Summary Proceedings Act 1957, under Part 3 of the Counter- Terrorism Bill.
2 Convention on the Physical Protection of Nuclear Material, opened for signature 3 March
1980, 1456 UNTS 124 (entered into force 8 February 1987); and the Convention on the Marking of Plastic Explosives for the Purpose of Detection, opened for signature 1 March 1991, ICAO Doc 9571 (entered into force 21 June 1998).
3 Foreign Affairs, Defence and Trade Committee, Counter-Terrorism Bill, A Government Bill, 27-1, Explanatory Note, presented to the House 2 April 2003, 1. In reality, the latter objective (investigative powers) supports the first objective (Security Council resolution 1373 (2001) obligations).
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
under the Counter-Terrorism Bill. The ability of police to obtain warrants for the purpose of intercepting private communications was extended to the investigation of terrorist offences (through amendment of section 312 of the Crimes Act). A new regime, introduced under new sections 200A to 200O of the Summary Proceedings Act, authorises police and customs officers to obtain a warrant to attach a tracking device to any property or person where it is suspected that an offence has been, is being, or will be committed. Other than a potential for the attachment of a tracking device to a person to constitute an assault, these provisions affect the right to privacy. The protection of that right is the focus of the discussion to follow.
Counter-Terrorism and Privacy
The right to privacy is a matter addressed within the International Covenant on Civil and Political Rights, but is outside the ambit of the New Zealand Bill of Rights. Instead, it finds protection under the Privacy Act 1993. Privacy, says Professor Gross of the University of Haifa in Israel, is a deeply rooted value in human culture comprising the right of the individual to be left alone, the right of the individual to have control over the dissemination of information about him or her and the access to his or her person and home, and the right to be protected against the unwanted access of the public to the individual.4 Notwithstanding the importance of the right to privacy Professor Gross argues that, from both a legal and moral perspective, interference with privacy in pursuit of national security (which must include counter-terrorism) is permissible:5
Contrary to privacy, absolute security is the utopian idea, and therefore “national security” as a whole is worthy of legal protection in the sense that the state has the duty and the right to protect itself and the persons who are located within its borders against security threats.
Under the ICCPR, privacy is a matter addressed in Article 17:
4 Emanuel Gross, ‘The Struggle of a Democracy Against Terrorism. Protection of Human Rights: The Right to Privacy Versus the National Interest – the Proper Balance’ (2004) 37(1) Cornell International Law Journal 27, 31.
5 Ibid, 35.
As far as the ICCPR is concerned, then, the State is obliged to both desist from interfering with privacy, as well as to legislate in a way that protects the right to privacy (from both State authorities and natural persons).6 The protection of privacy is, however, a necessarily relative matter as a result of the fact that all persons live in a society.7 The Human Rights Committee has pointed out that the term “unlawful” within paragraph 1 of Article 17 means that an authorisation to interfere with privacy must be established by law, so long as this does not establish an arbitrary authority.8 The international guidelines on counter-terrorism and human rights already mentioned also require that any limitation upon rights be reasonable and proportional.
In contrast to the International Covenant, the Privacy Act 1993 is weaker in its protection of the privacy of New Zealanders. As explained in chapter 8, the application of general principles of statutory interpretation renders the impact of the Act limited to governing the collection of “personal information”9 where this occurs outside a statutory authority to do so. Where a statute specifically authorises the collection (or interception) of personal information, then the rules of ‘reconciliation’, ‘implied repeal’, and generalia specialibus non derogant mean that (unless the statute can be interpreted in a manner that is consistent with the Privacy Act) the statutory provision remains unaffected by the Privacy Act.10
At domestic law, then, interference with privacy is only permissible to the extent that such interference either complies with the information privacy principles (section 6 of the Privacy Act), or is expressly authorised under an enactment which prevails by application of the principles of implied repeal and generalia specialibus non derogant. In contrast, to comply with the ICCPR and the international standards on counter- terrorism and human rights, however, legislative authorisations to interfere with privacy must: (1) not permit arbitrary interference; (2) protect the individual against arbitrary or unlawful interference; and (3) be reasonable and proportional.
6 United Nations Human Rights Committee, General Comment No 6, Article 17, UN Doc HRI/GEN/1/Rev.1 (1988), paras 1 and 9.
7 Ibid, para 7.
8 Ibid, para 3. See, for discussion, Alex Conte, Scott Davidson and Richard Burchill, Defining Civil and Political Rights. The Jurisprudence of the United Nations Human Rights Committee (London: Ashgate Publishing Ltd, 2004) 147.
9 Defined by the Privacy Act 1993, section 2, as information about an identifiable individual.
10 Reconciliation reflects the aim of the courts to find a construction of two conflicting statutory provisions that reconciles that inconsistency and allows the provisions to stand
together. Implied repeal results in a statute later in time impliedly repealing an earlier and totally inconsistent statute. Generalis specialibus non derogant means that an earlier, more
Interception Warrants under the Crimes Act 1961
As a result of the Counter-Terrorism Bill, section 312N of the Crimes Act 1961 was amended to make interception warrants available for the investigation of terrorism-related offences (defined as any offence against sections 7 to 13 of the Terrorism Suppression Act), or conspiracy to commit such offences. Interestingly, this does not include the bioterrorism offences incorporated under the new sections 298A, 298B and 307A of the Crimes Act.11 By implied repeal, the issuing of such warrants is unaffected by the Privacy Act. Furthermore, Article 17 of the ICCPR is satisfied by the fact that section 312N is a statutory authority which does not itself authorise arbitrary interception.
On the question of reasonableness and proportionality, this extension appears both reasonable and proportional. In its report to Parliament, the Foreign Affairs, Defence and Trade Committee pointed to the fact that there is no express international requirement to intercept communications pertaining to terrorist offences, but argued that such a power is necessary to provide for the effective investigation of such offences.12 The interception of private communications, it explained, might be necessary “to prove certain elements of terrorist offences, such as knowledge that an entity was designated”.13 This position makes perfect sense. Counter-terrorism (including New Zealand’s contribution to achieving an effective international framework on counter-terrorism) is a pressing and substantial objective justifying proportional limitations upon rights in furtherance of that objective.
Tracking Devices under the Summary Proceedings Act
The new sections 200A to 200O of the Summary Proceedings Act introduce a regime by which tracking devices14 may be used by the police and customs. Despite the number of provisions involved, their effect is
specific, statutory provision prevails over a later, general statutory provision. See John Burrows, Statute Law in New Zealand (3rd ed, LexisNexis, 2003), 308-317.
11 Which make it an offence to cause disease or sickness in animals; contaminate food, crops, water or other products; or threaten to cause harm.
12 Foreign Affairs, Defence and Trade Committee report (n 3) 8.
13 Ibid.
14 A tracking device is defined under section 200A of the Summary Proceedings Act 1957 as a device that, when installed in or on anything, can be used to ascertain the location of a thing or person, or whether something has been opened, tampered with or in some way dealt with.
relatively simple. Section 200B of the Summary Proceedings Act allows an authorised officer to apply to the District or High Court for a tracking device warrant. The Counter-Terrorism Bill was initially to allow any “authorised public officer” to do so, allowing any officer of a government agency to apply for a warrant.15 Agreeing with submissions that this would give an important power to too wide a range of government officers, the Select Committee successfully recommended that the authority be limited to “authorised officers”, defining that term to include only the police and customs.16
To issue a tracking device warrant, the judge hearing the application must be satisfied: (a) that there are reasonable grounds to suspect that an offence [any offence] has been, is being, or will be committed; (b) that information that is relevant to the commission of the offence (whether or not including the whereabouts of any person) can be obtained through the use of a tracking device; and (c) that it is in the public interest to issue a warrant, taking into account the seriousness of the offence, the degree to which privacy or property rights are likely to be intruded upon, the usefulness of the information likely to be obtained, and whether it is reasonably practicable for the information to be obtained in another way.17 Once a warrant is issued (upon terms directed by the Court),18 the authorised officer can install, remove, maintain and monitor the tracking device and is permitted to take certain steps, including entry into premises, to do so.19
The Use of Tracking Devices without a Warrant
More controversial is the ability for a police or customs officer to use a tracking device without a warrant. This authority exists where the officer believes on reasonable grounds that a court would issue a warrant (that is, that a judge would be satisfied of the grounds already identified) and that, in all the circumstances, it is not reasonably practicable to obtain a warrant.20 The officer concerned, within 72 hours of installing a tracking
15 Counter-Terrorism Bill 2003, clause 34.
16 Summary Proceedings Act 1957, section 200A. See the report of the Foreign Affairs, Defence and Trade Committee (n 3) 11.
17 The matters specified are those required to be within the belief of the officer making the application (section 200B(2)), with the presiding judge also needing to be satisfied that those matters have been met (section 200C((1)).
18 Summary Proceedings Act 1957, section 200C. This includes the need for the court to
direct the period for which a tracking device warrant is valid, which cannot be more than 60 days, without renewal. See section 200F on renewal of warrants.
19 Summary Proceedings Act 1957, section 200D.
device, must either remove it, cease monitoring it, or apply for a warrant to continue use of it.21
A number of public submissions proposed that this authority was excessive and unnecessary, although the Select Committee disagreed, pointing to the occasional and inevitable need to react to emergencies.22 In what may have been an attempt to placate criticisms of the power, the Committee succeeded in introducing a requirement that, whenever a tracking device is used without an accompanying warrant, the authorising officer must lodge a written report with the District or High Court on matters concerning the installation of the device and the circumstances in which it came to be installed.23
Checks and Balances
The issue of checks and balances in the use of tracking devices was a matter of particular concern to the New Zealand Privacy Commissioner in his evidence before the Select Committee.24 The response of the Foreign Affairs, Defence and Trade Committee was to point to the involvement of the courts (in determining whether or not a warrant should be, or should have been, issued) as an adequate safeguard against abuse of the process.25 In the case of tracking devices used without a warrant, the checking mechanisms exist through sections 200G and 200H. Firstly, section 200G(8) provides civil and criminal immunity to an officer acting under the authority of section 200G, unless the officer “acts in bad faith or without reasonable care”. Secondly, the requirement to report to the court was pointed to by the Committee as a further judicial safeguard.26 Reports under section 200H are to be considered by a judge of the District or High Court, with that judge having the ability to refer a copy of the report, with any comments or recommendations, to the chief executive of the New Zealand Police or Customs, or to the responsible Minister.27
Concerning the use of tracking devices, both with and without a warrant, the Privacy Commissioner submitted to the Select Committee that
20 Summary Proceedings Act 1957, section 200G.
21 Summary Proceedings Act 1957, section 200G(6).
22 See the report of the Foreign Affairs, Defence and Trade Committee (n 3) 11-12.
23 Summary Proceedings Act 1957, section 200H(2).
24 See the Report by the Privacy Commissioner to the Minister of Justice in relation to the
Counter-Terrorism Bill, 7 February 2003, online: <http://www.privacy.org.nz/people/ countter.html> (last accessed on 10 March 2005).
25 Foreign Affairs, Defence and Trade Committee report (n 3) 12.
26 Ibid.
27 Summary Proceedings Act 1957, section 200H(4) and (5).
an offence provision was an essential component of the scheme if it was to fully protect privacy:28
I support the scheme proposed in this bill for the authorisation of the use of tracking devices for law enforcement purposes. However, that scheme is incomplete without the accompaniment of an offence provision. Without an offence provision the law is silent in respect of the covert use of tracking devices by citizens against other citizens, notwithstanding the effect on privacy. The law does not explain what happens if an official fails to obtain a warrant or otherwise disregards or breaches the statutory scheme... An offence provision would also mean that public officials, whether authorised or not, could not use tracking devices for purposes not contemplated by this scheme (such as investigating behaviour which does not constitute an offence).
Despite the fact that section 216(3) of the Crimes Act 1961 contains an analogous offence provision for the misuse of interception warrants,29 the majority of the Committee disagreed that such a provision was necessary in the case of tracking devices. The Committee commented in a rather dismissive way that “at this time, there is no evidence that the illegitimate use of tracking devices is a problem in New Zealand”.30 That view seems short-sighted and does not respond to the concerns of the Privacy Commissioner, although the Select Committee did urge the Government to consider the recommendation of the Privacy Commissioner in the near future.31 Despite the fact that an offence provision in the nature of that recommended by the Commissioner was not enacted, it is notable that the Select Committee did recommend limiting an officer’s immunity from civil or criminal liability where acting in bad faith or without reasonable care.32
Still, the question remains as to whether the use of tracking devices is adequately balanced. Are the safeguards under the Summary Proceedings Act sufficient? This text concludes they are not.
The role of a judge in issuing a warrant certainly provides a check on whether a warrant should be issued in the first place, and it permits the issuing judge to make directions on the terms upon which a tracking device may be used. In doing so, a judge is required to determine whether the
28 Privacy Commissioner (n 24) part 3.8.
29 Interception warrants being warrants to intercept private communications.
30 Foreign Affairs, Defence and Trade Committee report (n 3) 12.
31 Ibid. There is currently no indication that the Commissioner’s recommendation is under consideration.
32 Ibid, 35.
statutory criteria are met to allow for the use of tracking devices. The judge is also in a position to make whatever directions he or she deems appropriate for the proper use of the device, including the administration of justice and the maintenance of the right to privacy. At face value, then, the regime appears to be satisfactory.
What is of concern is what may occur after the issuing of a warrant. The terms of sections 200A to 200P of the Act do not guarantee that the use of a tracking device under a warrant will be undertaken in compliance with any directions accompanying the warrant. There is no mechanism within the Act to either censure or otherwise deal with an officer using a tracking device outside the terms directed, or to provide any redress to a person subjected to the use of a tracking device in breach of directed terms.33 Ultimately, the courts may be able to provide a remedy by excluding evidence obtained in breach of directions under a warrant. The courts appear powerless, however, to grant any remedy for the interference with a person’s privacy outside directed terms where there are no subsequent proceedings relying upon evidence obtained as a result of the use of a tracking device. In an extreme case, for example, an officer could obtain a warrant for one purpose, use the tracking device for an entirely different purpose, with no consequences upon the officer or the State.
This is considerably problematic, since Article 17(2) of the International Covenant on Civil and Political Rights requires States parties to ensure that the law protects individuals against arbitrary or unlawful interference with their privacy. In the absence of mechanisms to enforce compliance and authorise remedial action, the regime for the use of tracking devices under a warrant is in breach of the International Covenant.
Arguing in favour of adequate checks in the use of tracking devices without a warrant (under section 200G), one would point to the fact that a police officer must - if the warrant is not extended beyond 72 hours by a judicial warrant - file a written report with the District or High Court giving reasons
33 Since criminal and civil liability under section 200G of the Summary Proceedings Act 1957 is restricted to liability following conduct in the use of tracking devices without a warrant. Although it has to be said that a police officer acting outside the directions of a court warrant may, instead, be subject to disciplinary proceedings under the Police Regulations 1992. One might also query whether a remedy for a victim of such interference might be able to claim remedies under the New Zealand Bill of Rights Act 1990 for an unreasonable search. The author views this as highly doubtful, since the use of a tracking device is neither a “search”, nor a “seizure”. Even if it was, any public law action would be unlikely to result in the award of a meaningful damages.
for using the device and outlining its installation and use.34 One could also contend that the ability to use devices without warrant is a necessary reflection of the exigencies of law enforcement operations where there is no adequate opportunity to obtain a warrant, and point to the fact that a judge reviewing an officer’s report can make recommendations (including any adverse comments if appropriate) to the chief executive of the police or customs, or to the responsible Minister.
These do act as checks upon the use of devices without warrant. The problem is that they have little weight behind them. Section 200G(8) permits civil and criminal liability to follow where the use of tracking devices by an officer has been undertaken in bad faith or without reasonable care. However, this is a limited level of liability. Of particular concern is the fact that the Crown is not required to act upon any recommendations made by a judge following a review of an officer’s report. Again, this does not appear to provide adequate protection of individuals’ freedom from arbitrary or unlawful interference with their privacy, contrary to the requirement of Article 17 of the International Covenant.
Crown Law Office Advice to the Attorney-General
In her role under section 7 of the New Zealand Bill of Rights Act 1990, the Attorney-General sought advice from the Crown Law Office concerning any potential inconsistency between the Counter-Terrorism Bill and the Bill of Rights Act. In the two letters of advice from the Solicitor-General’s office to the Attorney-General, the use of tracking devices was the only matter identified as having an impact upon the NZBORA.35 The advice of the office was that the tracking device scheme to be created under the Bill:36
...establishes a reasonable accommodation of law enforcement needs and reasonable expectations of privacy. The warrant regime is tightly circumscribed and while s 200G creates a warrantless tracking device power, that too is limited in scope and clearly available only in exigent-type situations.
That conclusion was arrived at by undertaking a similar analysis to that within this chapter. The critical difference, however, is that Crown Counsel
34 Summary Proceedings Act 1957, section 200H(2).
35 Letters from Crown Counsel to the Attorney-General, ‘Counter-Terrorism Bill PCO4663/14 Our Ref: nATT114/1124(15)’, 10 December 2002 and 11 February 2003.
36 Ibid, para 7.
did not give consideration to the question of checks and balances upon the potential abuse of the provisions by an officer. This, as suggested, is where the tracking device regime fails to satisfy the need to provide an adequate protection to privacy. Having said this, the protection in question falls under the Privacy Act and the ICCPR and is outside the ambit of the Bill of Rights. The Crown Law Office cannot therefore be criticised too much.
Operation of Investigative Tools outside Counter-Terrorism
A final matter requiring separate discussion is the use of counter-terrorism as a potential tool of manipulation by States as a means of legitimising unnecessarily broad State powers. This has been a common criticism of States throughout the world since 9/11. Regrettably, as evident through the examination of tracking devices and powers of questioning incorporated within the Summary Proceedings Act, New Zealand is no different.
In introducing the Counter-Terrorism Bill in 2003, it was said that the Bill “reflects the need for New Zealand to ensure we have a comprehensive legislative framework in place that reflects the new, more dangerous era of international terrorism that we live in”.37 As mentioned, the Explanatory Notes to the Counter-Terrorism Bill identified the objectives the Bill as including the establishment of investigative powers to assist in the detection of terrorists, terrorist acts and terrorist or associated entities.38 Apparent from the foregoing discussions, however, the tracking device regime under sections 200A to 200O of the Summary Proceedings Act is not restricted in its application to the investigation and combating of terrorism. Tracking devices may, in fact, be used in the investigation of any offence.
The establishment of broad legislative provisions like these within the umbrella of a ‘Counter-Terrorism’ Act was a matter of regular criticism in submissions to, and evidence before, the Foreign Affairs, Defence and Trade Committee.39 It was also a criticism from within the Select Committee, Keith Locke MP describing the Bill as “fraudulent”, on the basis that a number of its legislative amendments had nothing to do with
37 Phil Goff MP, ‘Counter-Terrorism Bill – Introduction’, Parliamentary Speech, 1 April 2003, summarised online: <http://www.beehive.govt.nz/ViewDocument.cfm? DocumentID=16392> (last accessed on 4 March 2005).
38 Explanatory Note (n 3) 1.
39 Including submissions and evidence by the author, the Privacy Commission and the New Zealand Law Society: see Submissions to the Foreign Affairs, Defence and Trade Committee on the Counter-Terrorism Bill 2003, Parliamentary Library, Wellington.
terrorism.40 Similar concerns were expressed during the Select Committee hearing process by Committee Member Wayne Mapp MP.41.
In attempting to justify the inclusion of non-terrorism specific provisions within the Counter-Terrorism Bill, the Select Committee reported to the House that, after consulting with the Minister of Justice, the majority of the Committee agreed that the non-terrorism specific provisions should remain within the Bill. The report stated that:42
The Minister told us that it is accepted that there are strong links between terrorist activity and other organised crime, such as arms smuggling and drug importation. However, these activities are not always associated with terrorism and terrorist acts are essentially the same as ordinary criminal offences committed with a different motive. The investigative powers contained in the bill are critical to allowing police to identify terrorist activity effectively. Therefore, we do not believe it is possible to make this distinction in legislating for investigation of these activities.
With all due respect to the majority of the Committee and the Minister, the analysis within this text does not support this position. The provisions in question apply to the investigation of any offences punishable by imprisonment, the greater majority of which will fall outside any link between terrorism and organised crime.
Significantly, the upshot of this concern is not limited to matters of domestic politics and internal wranglings to extend State powers. New Zealand’s enactment of generally applicable provisions under the vehicle of the Counter-Terrorism Bill is also contrary to the international guidelines on counter-terrorism mentioned. Although these guidelines can be characterised as ‘soft law’ recommendations, they are nevertheless highly influential given the consistency between the various sources of the guidelines. They represent the standards generally accepted by international society as being applicable to the countering of terrorism in democratic States.43
The guidelines advocated by the Committee of Ministers to the Council of Europe direct that where measures taken by States to combat terrorism restrict human rights, those restrictions must be defined as precisely as
40 Keith Locke MP, ‘Counter-Terrorism Bill – First Reading’, Parliamentary Speech, 2 April 2003, copy online: <http://www.greens.org.nz/searchdocs/speech6173.html> (last accessed 1 July 2003). See also the Foreign Affairs, Defence and Trade Committee report on the Counter-Terrorism Bill (n 3) 13.
41 Foreign Affairs, Defence and Trade Committee Hearing on the Counter-Terrorism Bill, Old Parliament House (Room G.003), Wellington, 15 May 2003.
42 Foreign Affairs, Defence and Trade Committee report (n 3) 3.
possible and be necessary to the objective of countering terrorism.44 The guidelines of the High Commissioner for Human Rights provide that (to be lawful) limitations imposed by counter-terrorist legislation must be necessary for public safety and public order, and for the protection of the rights and freedoms of others.45 Finally, the latest Draft Principles and Guidelines within the report of the Special Rapporteur to the Sub- Commission on the Promotion and Protection of Human Rights provided that:46
Counter-terrorism measures should directly relate to terrorism and terrorist acts, not actions undertaken in armed conflict situations or acts that are ordinary crimes [emphasis added].
The investigative tools under the Summary Proceedings Act examined within this chapter fail to comply with any of these guidelines.
Conclusion
Aspects of investigative law reform in New Zealand since 9/11 have gone beyond that required for the purpose of counter-terrorism and are, as such, in conflict with international guidelines on the interface between counter- terrorism and human rights. Furthermore, tracking devices under section 200 of the Summary Proceedings Act may be used for the investigation of any offence, with inadequate safeguards to protect against the arbitrary or unlawful interference with a person’s privacy. The tracking device regime is thus in breach of both the international guidelines and, more specifically, in contravention of article 17(2) of the International Covenant on Civil and Political Rights.
43 See further Alex Conte and Boaz Ganor, Legal and Policy Issues in Establishing an International Framework for Human Rights Compliance When Countering Terrorism (Herzelia: International Policy Institute on Counter-Terrorism, 2005) part II.
44 Council of Europe, Guidelines on Human Rights and the Fight Against Terrorism
(Council of Europe Publishing, 2002) Guideline III(2).
45 Report of the United Nations High Commissioner for Human Rights and Follow-up to the World Conference on Human Rights, Human Rights: A Uniting Framework, ESCOR (58th
Sess) UN Doc E/CN.4/2002/18 (2002), Annex entitled Proposals for “further guidance” for the submission of reports pursuant to paragraph 6 of Security Council resolution 1373 (2001). Compliance with international human rights standards, I General Guidance: Criteria for the Balancing of Human Rights Protection and the Combating of Terrorism, para 4(b).
46 Kalliopi Koufa (as Special Rapporteur to the United Nations Commission for Human
Rights Sub-Commission for the Promotion and Protection of Human Rights), A Preliminary Framework Draft of Principles and Guidelines Concerning Human Rights and Terrorism, 22 June 2005, UN Doc E/CN.4/Sub.2/2005/39, para 33.
Chapter 18
Self-Incrimination and Police Powers of Questioning
The preceding chapter considered one of two investigative tools, tracking devices, incorporated within the Summary Proceedings Act 1957 as a result of what began as the Counter-Terrorism Bill 2003. This chapter considers the second of the investigative tools introduced under the 2003 Bill: special powers of questioning under section 198B of the Summary Proceedings Act.
Police Powers of Questioning
Section 198B of the Summary Proceedings Act 1957 allows police to demand assistance to access computer data by providing police with any data protection codes or other information necessary to access that data. In evidence before the Foreign Affairs, Defence and Trade Committee, it had been submitted that this provision (under clause 33 of the Counter- Terrorism Bill) offended the privilege against self-incrimination. By compelling a person to provide assistance to police (who may be investigating an offence against that person or who might, as a result of gaining access to the computer data, be provided with information that would incriminate that person) the author had submitted that the provision would offend the privilege.1
In apparent response to these submissions, clause 33 was amended, with the Select Committee reporting to the House that this was to explicitly preserve the right against self-incrimination. The Committee stated that:2
Whether a broadly worded statutory provision requiring the supply of information, and making no reference to the privilege against self- incrimination, overrides this privilege is a question of its construction. A Court must be satisfied that a statutory power of questioning was meant to exclude
1 Alex Conte, Submissions to the Foreign Affairs, Defence and Trade Committee on the Counter-Terrorism Bill (27-1, 2003), Parliamentary Library 12 May 2003, paras 29-58.
2 Foreign Affairs, Defence and Trade Committee, Report on the Counter-Terrorism Bill, A
Government Bill, 27-2, Commentary, presented to the House 8 August 2003, 10.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
the privilege. We are advised that this conclusion is unlikely to be reached unless it is either explicitly provided for, or is a necessary implication of the provision. Our recommended amendments make it clear that a person is required to provide information that is reasonable and necessary to allow the police to access data held in, or accessible from, a computer in particular circumstances, but that does not itself tend to incriminate the person. We note that there are several other instances of statutory obligations on citizens to assist police or other agents.
As enacted, section 198B of the Summary Proceedings Act retains the original form of subsections (1) and (2), which set out the rule requiring the provision of assistance and to whom that rule applies. The final form of the section now includes new subsections (3), (4) and (5), with subsection (6) retaining the penalty for failure to comply (as had been provided for in the first draft of the Bill). The entirety of the provision now reads as follows:
198B Person with knowledge of computer or computer network to assist access-
(1) A constable executing a search warrant may require a specified person to provide information or assistance that is reasonable and necessary to allow the constable to access data held in, or accessible from, a computer that is on premises named in the warrant.
(2) A specified person is a person who-
(a) is the owner or lessee of the computer, or is in the possession or control of the computer, or is an employee of any of the above; and
(b) has relevant knowledge of-
- (i) the computer or a computer network of which the computer forms a part; or
- (ii) measures applied to protect data held in, or accessible from, the computer.
(3) A person may not be required under subsection (1) to give any information tending to incriminate the person.
(4) Subsection (3) does not prevent a constable from requiring a person to provide information that-
(a) is reasonable and necessary to allow the constable to access data held in, or accessible from, a computer that-
- (i) is on premises named in the warrant concerned; and
- (ii) contains or may contain information tending to incriminate the person; but
(b) does not itself tend to incriminate the person.
(5) Subsection (3) does not prevent a constable from requiring a person to provide assistance that is reasonable and necessary to allow the constable to access data held in, or accessible from, a computer that-
(a) is on premises named in the warrant concerned; and
(b) contains or may contain information tending to incriminate the person.
(6) Every person commits an offence and is liable on summary conviction to a term of imprisonment not exceeding 3 months or a fine not exceeding $2,000 who fails to assist a constable when requested to do so under subsection (1).
An issue that becomes apparent at the outset is that of interpretation. What exactly do subsections (3), (4) and (5) mean and how do they inter-relate? In its original form, the meaning of the proposed provision was quite clear. Clause 33 was to enable a police constable executing a search warrant to require assistance or information to be given in order to access data in a computer within the premises being searched. Subclause (1) - which remains identical to section 198B(1) - set out the authority by which a constable could make such a request. Subclause (2) - again remaining the same - specified who may be the subject of such a request. Subclause (3) - which became section 198B(6) of the Summary Proceedings Act - created an offence where a person refuses to comply with the constable’s request, punishable by a maximum of three months’ imprisonment or a fine of up to
$2,000.
The new subsections (3), (4) and (5), however, require a close reading. Subsection (3) appears to protect the privilege against self-incrimination, stating that “a person may not be required under subsection (1) to give any information tending to incriminate the person”. Certainly, the Select Committee reported that the protection of the privilege against self- incrimination was the intention of this added provision.3 The author doubts, however, that this is in fact the effect of subsection (3) when read in the entirety of section 198B.
The first point to note is that subsection (3) only prevents a constable (acting under subsection (1)) from requiring a person to give information that might incriminate them. The reality is that subsection (1) only authorises a constable to require information to be provided for the purpose of allowing the constable to access data within a computer. That information will take the form of either a password, or information about the location within a computer of certain data. That in itself cannot be incriminating information, since it only informs a constable on how to access data. In other words, subsection (3) does nothing. Even without the additional subsection (3), section 198B(1) can only ever permit a constable to request information on how to access data. It does not authorise a constable to require any further information and the purported restriction upon section 198B(1) created by subsection (3) is therefore redundant. It is
3 Ibid.
what flows from that preliminary information that is important to the privilege against self-incrimination.
Next, it appears that subsections (4) and (5) in fact expressly override the privilege against self-incrimination. The two provisions are almost identical in nature, except that subsection (4) relates to the provision of information necessary to access data (e.g. a password), and subsection (5) relates to the provision of assistance necessary to access such data (e.g. the physical operation of a computer). However, the two provisions specifically envisage that data accessed as a result of such information or assistance “contains or may contain information tending to incriminate the person”.4 Subsection 4(b) certainly limits a constable from using section 198B by ensuring that he or she may only obtain information that “does not itself incriminate the person” [emphasis added]. The point, however, is that the information in question (a password or other information required to access data) is not likely to itself incriminate a person. Moreover, both subsections envisage (and do not prohibit) that the information or assistance provided may then result in the person incriminating him or herself. For those reasons, not even a liberal, rights-based, interpretation of section 198B could be adopted in favour of reading the provision consistently with the privilege against self-incrimination. It is thus concluded that although subsection (3) - when first read - appears to preserve the privilege against self-incrimination, the overall amendment of section 198B does the opposite.
This represents a significant extension to existing police powers and a departure from common law and statutory rights. Two questions arise: (1) what is the extent, and effect, of the common law privilege against self- incrimination and right to be presumed innocent; and (2) how does section 198B interact with the codified rights to silence and legal advice, and the presumption of innocence, under the New Zealand Bill of Rights Act 1990 and the International Covenant on Civil and Political Rights?5
The Privilege against Self-Incrimination
In examining the justifiability of the interference by section 198B with the privilege against self-incrimination, this chapter looks first at the common law privilege, then the parallels within human rights instruments.
4 Summary Proceedings Act 1957, section 198B(4)(a)(ii) and (5)(b).
5 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
Self-Incrimination and the Common Law
Existing quite independently of New Zealand’s human rights legislation and corresponding international obligations is the long-held common law privilege against self-incrimination and the right to be presumed innocent. The right to be presumed innocent until proven guilty is exercised through the burden upon the State throughout all stages of the criminal process, from investigation to conviction. For example, an accused person has no obligation to give evidence at trial, nor to disprove any allegation against him or her. This has been held to be so even where the only person in possession of information relevant to the elements of an offence is the accused.6 The common law privilege against self-incrimination is intimately linked with the presumption of innocence, exercisable through the right to silence. No person may be compelled to say or do anything that might incriminate him or her.7 The New Zealand Court of Appeal has held that the privilege against self-determination is not limited to testimony and discovery in judicial proceedings. The Court held, in Taylor v New Zealand Poultry Board, that this privilege was capable of applying outside court proceedings when the obligation to answer questions, or give information, or to provide or disclose documents, was imposed by statute.8
The combined affect of the privilege against self-incrimination and the presumption of innocence is that a person cannot be compelled to assist in the investigation and prosecution of any offence against him or her by being required to make any statement or provide any information (documentary or otherwise). The question, then, is what affect this has upon the operation of section 198B of the Summary Proceedings Act.
Since Parliament is sovereign, the normal interaction between common law and statute is that Acts of Parliament prevail over the common law. As summarised by Professor Philip Joseph, “Parliament’s words can be neither judicially invalidated nor controlled by earlier enactment”.9 Prima facie,
6 See Attygale v R [1936] 2 All ER 116 (PC). Here, the accused was charged in respect of an illegal operation performed on a woman while she was under chloroform. The defence case was that no operation took place. The trial judge directed the jury that, the facts being specifically within the knowledge of the accused, the burden of proving the absence of any operation was upon the accused. On appeal, the Privy Council held that the direction was an incorrect statement of the law, and that the onus of proof to establish that there had been an operation remained with the prosecution.
7 See Rice v Connolly [1966] 2 All ER 649 (Queen’s Bench Division), applied in Waaka v Police [1987] NZCA 69; [1987] 1 NZLR 754 (CA).
8 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA), 401.
9 Philip Joseph, Constitutional and Administrative Law in New Zealand, (2nd ed, Brookers, 2001) 461.
then, the common law privilege against self-incrimination and the presumption of innocence have no impact upon section 198B. As Joseph himself discusses, however, the courts have taken a guarded approach when Parliament has attempted to restrict the role of the judiciary or take away the rights of citizens.10 In the case of New Zealand Drivers’ Association v New Zealand Road Carriers, Justices Cooke, McMullin and Ongley noted:11
We have reservations as to the extent to which in New Zealand even an Act of Parliament can take away the rights of citizens to resort to the ordinary courts of law for the determination of their rights.
More strongly worded, Justice Cooke later posited that “some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them”.12 Despite the apparent strength of those statements, however, no New Zealand court has invalidated or refused to apply a statutory provision on the basis that it encroaches upon common law rights.
It is at this point that further discussion of Taylor v New Zealand Poultry Board is called for, the case having similarities with the issue at hand.13 Taylor concerned the operation of regulation 57(3) of the Poultry Board Regulations which, like section 198B of the Summary Proceedings Act, required a person to provide information to prescribed officers.14 Taylor was a poultry farmer who refused to answer questions properly asked under regulation 57(3) and he was subsequently convicted on three charges under regulation 57(4).15 Notwithstanding the fact that the Court of Appeal held that the privilege against self-incrimination was capable of applying outside court proceedings, it qualified this decision by stating that the scope of the privilege must be determined in the context of the particular statute being examined. Adopting the words of the Select Committee when reporting on the Counter-Terrorism Bill, the privilege
10 Joseph (ibid) 485-495.
11 New Zealand Drivers’ Association v New Zealand Road Carriers [1982] 1 NZLR 374 (CA), 390.
12 Fraser v State Services Commission [1984] 1 NZLR 116 (CA), 121. See also Taylor v
New Zealand Poultry Board (n 8) 398.
13 Taylor v New Zealand Poultry Board (n 8).
14 The Poultry Board Regulations 1980 were made pursuant to an empowering provision in the Poultry Board Act 1980 (section 24(1)).
15 Regulation 57(4) of the Poultry Board Regulations 1980 made it an offence to refuse to answer any enquiries made under regulation 57(3).
against self-incrimination “is a question of its construction”.16 For the Court of Appeal, Cooke J stated:17
The common law favours the liberty of the citizen, and, if a Court is not satisfied that a statutory power of questioning was meant to exclude the privilege, it is in accordance with the spirit of the common to allow the privilege [emphasis added].
In a recent case concerning legal professional privilege in New Zealand, the Privy Council considered the question of statutory provisions overriding or excluding the privilege. The question before it was whether the Law Practitioners Act 1982 excluded legal professional privilege either expressly or “by necessary implication”.18 The Privy Council held that a necessary implication was one which the express language of the statute clearly showed must have been included.19 In considering the issue, reference was made to Lord Hobhouse’s explanation in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax:20
A necessary implication is not the same as a reasonable implication... A necessary [original emphasis] implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.
In the context of section 198B of the Summary Proceedings Act, it is concluded that the necessary implication of the structure of the provision is to exclude the privilege against self-incrimination. The common law must therefore give way. The wording of subsections (4) and (5) clearly preserves the power of questioning under subsection (1). The courts have no option but to take the statutory power as intending to exclude the privilege and could not interpret the provision as allowing the common law privilege to operate. This constitutes a major shift away from a fundamental privilege that has been developed and affirmed over a long period of time.
16 Foreign Affairs, Defence and Trade Committee report (n 2) 10.
17 Taylor v New Zealand Poultry Board (n 8) 402.
18 B v Auckland District Law Society [2003] UKPC 38; [2004] 1 NZLR 326 (PC).
19 B v Auckland District Law Society (ibid) 349.
20 B v Auckland District Law Society (ibid) 349. See R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] WLR 1299 (HL), para 45.
Self-Incrimination and Human Rights Instruments
The first point to note about the interaction between section 198B of the SPA and both the Bill of Rights Act and the International Covenant on Civil and Political Rights is that neither of the latter instruments contains an express privilege against self-incrimination. The question is whether the provisions of the NZBORA and/or the ICCPR might be taken to incorporate this privilege.
Article 14(2) of the International Covenant sets out the presumption of innocence until proven guilty according to law. It is the only provision within the ICCPR dealing, expressly or impliedly, with rights relevant to the privilege against self-incrimination. Its limitation, however, is that the right only applies to persons “charged with a criminal offence”. Thus, the starting point is to acknowledge that - where a person has not been charged with any offence - Article 14(2) does not apply, even in principle.
More importantly, even where a person is charged with an offence and
- in the investigation of that offence - the person is asked for information by a police officer under section 198B(1) of the Summary Proceedings Act, it is highly doubtful that Article 14(2) lends any protection. It would be implausible to suggest that the presumption of innocence, by itself, implies a privilege against self-incrimination. Certainly, the jurisprudence of the Human Rights Committee has not sought to infer such a privilege in its application or consideration of Article 14(2).21 It is therefore concluded that section 198B of the Summary Proceedings Act 1957 does not breach Article 14(2) of the International Covenant on Civil and Political Rights.
The point made about Article 14(2) of the ICCPR is equally applicable to section 25 of the NZBORA (minimum standards of criminal procedure). The rights set out within section 25 apply only to those that are “charged with an offence” and do not by themselves infer a privilege against self- incrimination. The rights to silence and to a lawyer under sections 23(1)(b) and 23(4) are similarly limited in the scope of their potential application,
21 Alex Conte, Scott Davidson and Richard Burchill, Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (2004), 125-126.
this time to situations where a person is “arrested” or “detained under any enactment”. Only then are any rights triggered.
The right to silence does more directly reflect the privilege against self- incrimination and the guarantee of a right to consult with counsel strengthens the operation of that privilege by ensuring that a person is advised of its application to the process of investigation. In other words, in the limited situation of a request under section 198B(1) being made following the arrest or detention of a person, section 23(1)(b) and (4) of the Bill of Rights can operate. However, it is only section 23(4) (the right to silence) that is directly relevant and the subject of further examination. The right to counsel is seen by the author as a supporting mechanism that may at times facilitate the exercise of the right to silence.
Application of the Bill of Rights to Section 198B
Adopting the methodology for the application of the operative provisions of the NZBORA, as advocated by Professor Paul Rishworth and others in their text The New Zealand Bill of Rights, the first step in that process is satisfied.22 By way of reminder, the authors identify a four-step process in the application of the Bill of Rights to another enactment, requiring consideration of the following questions: (1) does the enactment establish a limit on a right; (2) is the advocated meaning ‘inconsistent’ with the right; and (3) is an alternative meaning possible? The final step demands that one must adopt the consistent meaning, if properly available. In the context of the current examination, and limited to the specific situation identified in the preceding discussion, section 198B of the SPA can operate to establish a limit upon the right to silence.
Proceeding with the next step, one then has to consider whether the operation of section 198B(1) is ‘inconsistent’ with section 23(4) of the NZBORA where a person is arrested or detained. In doing so, one must first determine whether section 198B(1) effects a limitation upon the right to silence. In other words, how far does the right to silence stretch? Consider the following situation:
A (a New Zealand citizen) has made a donation to B (an organisation in Auckland, which has been made the subject of a final designation as an associated terrorist entity). Police arrive at A’s property and formally arrest her, charging A with an offence under section 10(1) of the Terrorism Suppression Act 2002 (making money available to B, knowing that B was
22 Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand Bill of Rights (2003), 135-157. See further, infra, chapter 8.
designated under the Act as an associated terrorist entity). A is properly cautioned under section 23(1)(b) and (4) of the NZBORA. Police have a warrant to search A’s premises, suspecting that she may have funded other proscribed entities. They locate a computer in her study and request A to provide the password to the computer (under section 198B(1) of the Summary Proceedings Act). Having been told upon arrest that she has the right to silence, A refuses to provide the police with the computer password.
The author concludes that the right to silence extends - at least in principle - to this situation. Section 198B(1) thus purports to limit the right to silence by requiring A to provide information to the police enabling them to access data on her computer. That being the case, the next question within Rishworth’s second step is whether this limitation is ‘consistent’ with the Bill of Rights by application of section 5 of the NZBORA.
Addressing the preliminary issues in the application of section 5, the first point is that the onus would be upon the Crown to establish that section 198B is a justified limitation in any challenge against its validity or operation.23 Next, it must be established that section 198B only effects a ‘limitation’ upon the right to silence, rather than an exclusion of the right.24 By being limited in its operation to the situations identified in subsections
(1) and (2), section 198B satisfies this requirement. Finally, section 198B is clearly a prescription by law (being a statutory provision).25
The substance of section 5 then requires the enactment to pursue a sufficiently important objective, by proportional means. There is considerable jurisprudence on this substantive test, particularly in Canada
23 This was held to be so by the Supreme Court of Canada in Re Southam (No 1) [1983] 41 OR (2d) 113, 124. The New Zealand Court of Appeal has taken the same view, stating that it is for the party seeking reliance on section 5 to advance the argument that limits on rights are reasonable, in Noort v MOT; Curran v Police [1992] NZCA 51; [1992] 3 NZLR 260, 271 and 283. See also Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC).
24 Although not considered in New Zealand, Canadian case law has drawn a distinction between “limits” and “exceptions”. In Attorney General of Quebec v Quebec Association of Protestant School Boards [1984] 2 SCR 66, the Supreme Court held that where a restriction
amounts to an “exception” to a provision of the Charter, it cannot be justified by the limiting provision in section 1 of the Charter. If a prescription collides directly with a provision of the Charter so as to negate it in whole, it held, that prescription is not a “limit” capable of justification (87). See also Ford v Quebec (Attorney General) [1988] 2 SCR 712, where the Supreme Court examined the distinction between “limits” and “exclusions” in more detail.
25 For a further discussion of these preliminary requirements and their application to counter-terrorist legislation, see Alex Conte, ‘A Clash of Wills: Counter-Terrorism and Human Rights’ (2003) 20 New Zealand Universities Law Review 338, 356-359.
through the application of section 1 of the Canadian Charter of Rights and Freedoms 1982 (upon which section 5 of the NZBORA was based). The most often cited New Zealand formulation of the test is to be found in the High Court case of Solicitor-General v Radio New Zealand Ltd, where the Court expressed the test as follows:26
To establish that the limit is both reasonable and demonstrably justified in a free and a democratic society the law creating the limit on the right of freedom must have an objective of sufficient importance to warrant overriding a constitutionally protected right or freedom... The means chosen by the law to achieve the objective must be proportional and appropriate to be objective... To meet the requirement of the proportionality test there are three components. First, the limiting measures or the law must be designed to achieve the objective not being arbitrary, unfair or based on irrational considerations. This is described as being rationally connected to the objective. Second, the measures or the law should impair as little as possible the right or freedom. Third, there must be a proportionality between the effects of the measures or the law responsible for limiting the right or freedom and the objective. The law which restricts the right must not be so severe or so broad in application as to outweigh the objective.
The difficulty in applying the substantive test under section 5 of the NZBORA is that section 198B of the SPA has no clear, or single, objective other than to assist general law enforcement through the investigation of offences. Although this provision was part of the Counter-Terrorism Act package, it is a provision of the Summary Proceedings Act 1957 and is not restricted in its application to the pursuit of counter-terrorism. Section 198B has the potential to apply to any situation in which the police are executing a search warrant. Taking this general objective, the first question in the application of section 5 is whether the objective (assisting law enforcement through the investigation of offences) relates to concerns which are pressing and substantial in a free and democratic society. Law enforcement is certainly an important societal concern and, for the sake of continuing with this enquiry, it will be assumed that a court would take this limb of the section 5 test to be satisfied.
Turning to the second limb of section 5, three questions must be considered.27 First, is the legislative provision (section 198B) rationally connected to the achievement of its objective? It is sufficient, here, to show that the provision logically furthers the objective and this question is
26 Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC), 60-61. For further discussion on the application of section 5, see Andrew Butler, ‘Limiting Rights’, (2002) 33 Victoria University of Wellington Law Review 537.
27 Solicitor-General v Radio NZ (ibid).
normally answered in the affirmative without too much trouble, unless the connection is not plainly obvious.28 Section 198B provides police with the means to access computer data, which clearly furthers the objective of assisting law enforcement through the investigation of offences. The second proportionality question asks whether the legislative provision impairs the right to a minimal extent (as little as reasonably possible).29 It is reasonably difficult to consider this second factor separately from the third, proportionality, factor. Combined, there is considerable difficulty in satisfying the justified limitations test in the current examination, because of the broad nature of section 198B (applying to the execution of any search warrant).
In any application of the final part of the proportionality test, achieving a balance between the importance of the objective and the effect of the limiting provision, much will depend on the specific limitation in question and how it impacts upon rights and freedoms. An examination of the relevant Canadian Supreme Court judgments reveals that the Court has provided little general guidance. Its approach has been to consider the particular legislative provision on the facts and such a line is the only reasonable one to take. Much has depended on the specific limitation in question and how it has impacted upon rights and freedoms. The only truly ‘guiding’ principles are those set out by the Court in R v Oakes and R v Lucas.30 The Court in Oakes spoke of the need to ensure that the law which restricts the right is not so severe or so broad in application as to outweigh the objective, adding in Lucas that this requires consideration of the importance and degree of protection offered by the human right being limited.
This therefore requires careful consideration of the effects of the limitation, the importance of the objective, and the importance of the right being affected. In an attempt to formulate a process by which this complex
28 Consider Lavigne v Ontario Public Service Employees Union [1991] SCR 211 (SCC), 219, where Wilson J stated that “[t]he Oakes inquiry into ‘rational connection’ between objectives and means to attain them requires nothing more than a showing that the legitimate and important goals of the legislature are logically furthered by the means the government has chosen to adopt”. Compare this with situations where the connection is not clear, as in Figueroa v Canada (Attorney General) [2003] 1 SCR 912 (SCC).
29 Again, this part of the overall test has been applied in a reasonably flexible manner by the
Supreme Court of Canada, focussing upon whether the provision is an appropriate means of giving effect to the objective, rather than whether the provision is proportional: consider R v Scwartz [1988] 2 SCR 443 (SCC), 492-493, and Figueroa v Canada (ibid).
30 R v Oakes [1986] 1 SCR 103 (SCC), 138-139; R v Lucas [1998] 1 SCR 439 (SCC), para
118.
issue might be considered the following set of questions and answers is offered:
31 Murray v United Kingdom [1996] ECHR 3; (1996) 22 EHRR 29 (ECHR), para 45.
32 Rishworth (n 22) 646.
33 Summary Proceedings Act 1957, section 198.
34 Section 27(1) of the Summary Offences Act 1981 provides that “Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, intentionally and obscenely exposes any part of his or her
While the exposure of one’s genitals in public is not something that the public should be expected to tolerate, the objective of countering such activity is clearly not as important as countering the financing of terrorist organisations. That conclusion is supported by the fact that an offence against section 10(1) of the Terrorism Suppression Act makes a person liable to imprisonment for a term of up to seven years (as opposed to a maximum of three months for indecent exposure). Thus, the currently broad scope of section 198B has the very undesirable effect that the importance of its objective relies upon the particular context in which the provision is applied.
Returning to the application of Rishworth’s steps in the application of the NZBORA, his second step cannot therefore be answered outside the specific application of section 198B. The most that can be said is that
genitals”. The relevance of this to section 198B is that computer data might, for example, include electronic photographs of such an event.
35 Note that the New Zealand courts have been clear on the permissible limits of warrants
issued under section 198 of the Summary Proceedings Act concerning the type of evidence that may be seized during the execution of a warrant. The New Zealand Court of Appeal pronounced at an early stage that any item seized must be referable to the offence in respect of which the warrant was issued: McFarlane v Sharp [1972] NZLR 838 (CA), 84. The case was cited with approval, although distinguished in its application to the facts, in the more recent decision in R v Burns [2002] 1 NZLR 203 (CA), 211.
section 198B might be consistent with the Bill of Rights, depending on the nature and circumstances surrounding the issuing of the search warrant. Where this results in a finding that the operation of section 198B is justified under section 5 of the NZBORA, this means that its operation is ‘consistent’ with the Bill of Rights, bringing consideration of the Bill of Rights to an end. Where the operation of section 198B fails the proportionality test, however, one must proceed to Rishworth’s third step. In part, these differing results prompt the author to advocate reform which will be considered later.
The third step advocated by Rishworth is to determine whether an alternative interpretation of the enactment (section 198B) is possible and whether this is consistent with the right invoked. If it is, then section 6 of the NZBORA will demand that the courts apply this alternative interpretation. The writer takes the view that such an alternative interpretation of section 198B is not open, having regard to subsections (4) and (5) of that provision. As already concluded, these subsections envisage (and do not prohibit) the provision of information and assistance which will result in the person incriminating him or herself.
As such, ‘step four’ results in a finding that section 198B will (in the absence of satisfying the proportionality test) be in an ‘irreconcilable conflict’ with the Bill of Rights. As such, section 4 of the NZBORA will demand that section 198B must prevail over the right to silence.
Operation of Investigative Tools outside Counter-Terrorism
Chapter 17 examined tracking devices under the Summary Proceedings Act 1957, as introduced under the Counter-Terrorism Bill legislative package. It was discussed in that chapter that the Bill was introduced to ensure that New Zealand had a comprehensive legislative framework in place capable of combating terrorism.36 The Explanatory Notes to the Counter-Terrorism Bill identified the objectives the Bill as including the establishment of
36 See Phil Goff MP, ‘Counter-Terrorism Bill – Introduction’, Parliamentary Speech, 1 April 2003, summarised online: <http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID= 16392> (last accessed on 4 March 2005).
investigative powers to assist in the detection of terrorists, terrorist acts and terrorist or associated entities.37
The powers of questioning under section 198B of the Summary Proceedings Act, however, are not restricted in their application to the investigation and combating of terrorism. The power in fact arises in the investigation of any offence carrying a maximum penalty of more than three months’ imprisonment. Chapter 17 has explained how this general application of a counter-terrorism measure was the subject of much criticism within the Foreign Affairs, Defence and Trade Committee and, more importantly perhaps, contrary to international guidelines on the countering of terrorism in a manner consistent with human rights. Given that this was a matter considered in chapter 17, however, the point is taken no further here.
Reform
The analysis of section 198B of the Summary Proceedings Act has thus far revealed various matters. The report of the Select Committee to the House of Representatives advised that its proposed amendment to clause 33 of the Counter-Terrorism Bill would explicitly preserve the privilege against self- incrimination. In actual fact, however, the words of the provision (as enacted) show that the it envisages and does not prohibit the compelling of a person to give information and assistance which might result in the police gaining access to incriminating evidence. This is contrary to the long-held common law right to silence and privilege against self-incrimination. Due to the express terms of section 198B and the primacy of legislation over the common law, however, the courts will not be in a position to interpret section 198B as allowing these common law rights to operate.
It has also been concluded that although section 198B does not conflict with the ICCPR, nor with section 25 of the NZBORA, the relationship of the provision with section 23 of the Bill of Rights is more complex. Where section 198B is activated following an arrest or detention, there are numerous difficulties in justifying the limitation imposed by section 198B upon the right to silence. Although section 4 of the Bill of Rights ultimately acts to save section 198B from invalidation, there are significant weaknesses in finding that the provision is not a justified limitation (in the operation of the provision, for example, to the investigation of minor
37 Foreign Affairs, Defence and Trade Committee, Counter-Terrorism Bill, A Government Bill, 27-1, Explanatory Note, presented to the House 2 April 2003, 1.
offences). Furthermore, section 198B is not limited in its application to the countering of terrorism.
All these factors point to the need for reform. The author advocates amendment of section 198B to restrict its operation to the investigation of terrorist offences, the suppression of which can be justified as a pressing and substantial concern proportional to the important status of the right to silence. Section 198B could be restricted by inclusion of the following subsection:
A constable may require assistance under subsection (1) if -
(a) the premises named in the warrant are owned, leased or occupied by an entity for the time being designated under the Terrorism Suppression Act 2002 as a terrorist entity or as an associated entity; or
(b) the computer at the premises named in the warrant is owned, leased or used by an entity for the time being designated under the Terrorism Suppression Act 2002 as a terrorist entity or as an associated entity; or
(c) the constable believes, on reasonable grounds, that the computer holds data relating to the preparation or commission of a terrorist act, as defined by section 5 of the Terrorism Suppression Act 2002.
It is concluded that these restrictions address the weaknesses identified in the justification of section 198B under section 5 of the Bill of Rights. The advocated reform restricts the application of section 198B to counter- terrorism by linking it to the two principal features of New Zealand’s counter-terrorist legislation (the designation process and the definition of terrorist acts). As an aside, the restrictions might also be expanded to include other pressing and substantial concerns, such as the suppression of child pornography for example.
Conclusion
Section 198B of the Summary Proceedings Act 1957 has introduced a power of questioning that not only goes beyond the investigation of terrorism, but also overrides the common law privilege against self- incrimination and limits the right to silence under section 23(4) of the Bill of Rights. The operation of section 198B outside the investigation of serious offences is an unjustifiable limitation, both within the terms of section 5 of the NZBORA and international guidelines. Reform has been advocated within this chapter, which would see the scope of the powers of questioning restricted to a proportionate level.
Chapter 19
Search and Seizure, and Arrest and Detention
This final substantive chapter considers the question of search and seizure powers, or powers of arrest and detention, contained within New Zealand’s counter-terrorism law. Security of the person from unreasonable search and seizure is something guaranteed by both the ICCPR (Article 17) and the NZBORA (section 21). Sections 12 and 13 of the Aviation Crimes Act 1972 (ACA), which set out powers of search of passengers, baggage and cargo, have the potential to impact upon these rights. Section 17 of the Act also confers certain powers, upon an aircraft commander, to search persons on an aircraft. In the context of international terrorist emergencies, section 10(2)(b), (d) and (e) of the International Terrorism (Emergency Powers) Act 1987 (ITEPA) confers upon police (and military acting as an aid to the police) various powers of entry into, or seizure of, or destruction of, property. Similar to the ACA, section 12 of the Maritime Crimes Act 1999 (MCA), confers upon a ship master and crew certain powers of search of a person or baggage on a ship.
Arrest and detention are matters that strike at the heart of personal security and are impacted upon by various provisions of the ICCPR (Articles 9 and 10) and the Bill of Rights (sections 22 to 24 inclusive). Authorisations to arrest and detain are included within the ACA, ITEPA and the MCA. Section 15 of the Aviation Crimes Act confers upon an aircraft commander certain powers of restraint and forced disembarkation. Similarly, section 11 of the Maritime Crimes Act authorises a ship captain to detain and surrender a person who commits an offence relating to ships (offences under section 4 of that Act). Section 10(2)(a), (c) and (g) of the International Terrorism (Emergency Powers) Act conferring powers upon police (and military acting as an aid to the police) to restrict entry and require the evacuation of premises. Although the latter provisions may not be the same as ‘detention’, they do otherwise impact upon personal security and freedom of movement and will therefore be considered.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human
Rights in New Zealand. Electronic copies of this publication, in full or in
part, are available online at
<http://www.lawfoundation.org.nz>
Defining the Applicable Rights and Freedoms
Rishworth’s four-step application of the New Zealand Bill of Rights first asks whether the provisions identified establish a limit(s) upon rights. It is necessary, in doing so, to define the rights involved and demonstrate that they operate in the circumstances to which the identified provisions apply. In plain terms, the questions to ask are (1) what is the scope of the freedom from unreasonable search and seizure; and (2) what is the scope of the freedom from arbitrary detention and the rights that flow from one’s arrest or detention?
Freedom from Unreasonable Search and Seizure
In very simple terms, this freedom does not prohibit the search and seizure of a person or of premises or other items within the possession or control of a person (e.g., vehicles, lockers, bags, correspondence, and the like). The freedom prohibits the unreasonable search and seizure of the person or those things. Thus, reflecting Butler’s analysis of rights, the human right in question involves a ‘definitional balancing’ (whereby a right - by its very expression - envisages and permits a limitation upon its content and effect).1
The right under section 21 of the NZBORA incorporates two important developments from the traditional common law notions of ‘unreasonableness’ and ‘search’. Section 21 is broader in its application than the common law protection of property rights, instead including the protection of “those values or interests which make up the concept of privacy”.2 Thus, in general terms, section 21 will be triggered by the invasion of a reasonable expectation of privacy.3 The second distinction to be made between the common law and Bill of Rights protection is in the determination, and consequences of, whether a search and seizure is ‘unreasonable’. Like the common law, this question is ultimately dependent upon the actual exercise of a search and/or seizure. Reasonableness, as concluded by the New Zealand Court of Appeal in R v Jeffries, can only be assessed in light of the facts and circumstances of a particular case.4 Unlike the common law, however, illegality is not the touchstone of
1 Andrew Butler, “Limiting Rights”, (2002) 33 Victoria University of Wellington Law Review 537, 541-544.
2 R v Jeffries [1993] NZCA 401; [1994] 1 NZLR 290, 319.
3 Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney, The New Zealand Bill of Rights (Oxford University Press, 2003) 421.
4 R v Jeffries (n 2) 306. See also Rishworth (ibid) 434.
unreasonableness. In plain words, an illegal search will not necessarily invalidate that search, if it is exercised reasonably.5
Albeit brief, this definition of the freedom from unreasonable search and seizure exposes an important limit upon the ability of this text to examine the provisions of New Zealand’s counter-terrorist legislation identified. Determining whether a search is unreasonable will ultimately depend upon the facts and circumstances of each particular case. The most that can be considered here, it is posited, is whether the legislative provisions are framed in such a way that they exclude the exercise of a reasonable search. The position is almost identical in the case of the International Covenant on Civil and Political Rights, which prohibits the “arbitrary” or unlawful interference with a person’s privacy, their family, home or correspondence.6 This text restricting itself to the analysis of legislative provisions, rather than the various and potentially unlimited manner in which they might be applied, all that can be said is that legislative authorisations to search must not be framed in a way that they require an arbitrary interference with privacy.
Formulating the latter points into a useful question for the analysis of New Zealand’s counter-terrorist legislation: do the counter-terrorist provisions authorise search and seizure in such a way that they either exclude the exercise of a reasonable (and non-arbitrary) search? If the answer is yes, then the provisions prima facie offend the ICCPR and NZBORA and will require further consideration. If, however, the provisions are not framed in such a way - if they permit a reasonable and non-arbitrary exercise of search - then that is all that can be expected of a legislative authority to search.
Freedom from Arbitrary Detention
The rights and freedoms associated with arrest and detention fall within two categories. First, there is the freedom from arbitrary arrest or detention guaranteed under section 22 of the NZBORA7 and Article 9(1) of the ICCPR.8 Next are the specific rights triggered upon a person’s arrest or
5 Rishworth (n 3) 434-435. See also R v Jeffries (n 2) and R v Grayson and Taylor [1997] 1 NZLR 399, 405.
6 International Covenant on Civil and Political Rights, Article 17(1). See also Alex Conte,
Scott Davidson and Richard Burchill, Defining Civil and Political Rights. The Jurisprudence of the United Nations Human Rights Committee (London: Ashgate Publishing Ltd, 2004) chapter 7.
7 Section 22 of the New Zealand Bill of Rights Act 1990 provides that “Everyone has the right not to be arbitrarily arrested or detained”.
detention, codified under section 23 of the NZBORA9 and the balance of Article 9 of the ICCPR.10 The rights triggered include the right to be informed of the reasons for one’s arrest, and the prompt determination of bail.11
8 Article 9(1) of the International Covenant on Civil and Political Rights guarantees that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.
9 Section 23 of the New Zealand Bill of Rights Act 1990 provides:
23. Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.
(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
(4) Everyone who is—
(a) Arrested; or
(b) Detained under any enactment—
for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
10 Paragraphs 2 to 5 of Article 9 to the International Covenant on Civil and Political Rights
provide:
11 A comparison between the provisions of section 23 of the New Zealand Bill of Rights Act 1990 and Article 9 of the International Covenant on Civil and Political Rights discloses that
the rights triggered upon arrest and detention are not identical between documents. Ultimately, however, this is not a matter of import for the purpose of this chapter, since the examination limits itself to whether the provisions being examined exclude any of the rights.
The most that can be done within this chapter is to consider whether the counter-terrorist provisions in question either (1) exclude a non-arbitrary arrest or detention; and/or (2) exclude the exercise of any rights triggered following arrest or detention.12 If they do not then, again, this is the most that can be expected of a statutory authorisation to detain or arrest.
Aviation Crimes Act 1972
Section 12(1) of the Aviation Crimes Act 1972 (ACA) authorises the search of a passenger or their baggage prior to boarding any aircraft in New Zealand,13 but only with the passenger’s consent.14 Given that the search can only be undertaken by consent, it is concluded that the authority under section 12(1) of the ACA does not exclude the exercise of a reasonable and non-arbitrary search and is therefore compliant with the New Zealand Bill of Rights Act. Furthermore, subsection (4) sets out limitations on the power of search which promote a reasonable search. In the search of a person, the person cannot be required to remove anything more than a coat or similar item.15 Female passengers must be searched by a female, unless the search is conducted by means of any mechanical or electronic device.16 Section 12(5) also contains an authority to search, this time in respect of any cargo to be loaded onto any aircraft in New Zealand. Again, there is nothing in that authority preventing a reasonable and non-arbitrary search of the cargo. Where a person refuses to consent to a search, this has the potential to permit a search without consent by a member of the New Zealand police under section 13 of the ACA. Section 13(1) authorises a police officer to conduct a search without warrant if the officer has reasonable grounds17 to suspect that a crime against the ACA has been, is being, or is likely to be committed (hijacking, crimes in connection with hijacking, crimes relating to aircraft, or crimes relating to international airports). The officer can
12 As was done in the context of the freedom from unreasonable search and seizure, discussed above.
13 Such a search may be conducted by the New Zealand police, any aviation security officer (as defined by the Act), any customs officer, or any employee of the carrier or person
authorised by the carrier: section 12(1).
14 Failure to give consent allows the carrier to refuse to carry the person and/or their baggage: section 12(2).
15 Section 12(4)(a).
16 Section 12(4)(b).
17 Section 13(2) makes it clear that the fact of refusal to be searched cannot, by itself, constitute reasonable grounds for suspecting that a crime against the Act has been, is being, or is likely to be committed.
detain the passenger for the purpose of that search and may take possession of any item listed in section 11(d) of the Act (firearms, explosives, dangerous weapons, and the like).18 Section 13 does not demand arbitrary or unreasonable searches, nor does it demand arbitrary detention or purport to exclude rights upon arrest or detention.
Once passengers are onboard an aircraft, certain rights of search and detention are vested in the aircraft commander under section 15 of the ACA, who may request any member of the crew or any person onboard the aircraft to execute the search or detention.19 Where an aircraft commander has reasonable grounds to suspect that a person has, or is about to, carry out certain acts,20 then he or she can take “such reasonable measures, including restraint” as may be necessary to achieve certain prescribed ends.21 Any restraint must be discontinued once the aircraft ceases to be in flight, unless the aircraft commander has obtained the consent of the appropriate domestic authorities to continue the restraint and deliver the person to those authorities.22 It is concluded that section 15 does not demand an arbitrary detention, not seek to exclude the triggering of rights upon detention, although the exercise of those rights is likely to be delayed due to the exigencies of air travel. Indeed, the provision contains mechanisms seeking to ensure that any restraint is proper, triggering the authority only where there are reasonable grounds to suspect certain activity and even then only permitting reasonable measures to be taken.
Finally, section 17 of the Act authorises the search of any person or baggage where the aircraft commander has reasonable grounds to suspect that a crime against the ACA has been, is being, or is likely to be committed. Section 17 also allows the seizure of any article found which
18 Section 13(1)(b).
19 This ‘delegation’ of the authority vested in the aircraft commander is contained in sections 15(2) and 17 of the Aviation Crimes Act 1972.
20 Those acts being (section 15(1) of the Act:
(a) Anything which is an offence under the law of the country in which the aircraft is registered (not being a law of a political nature or a law based on racial or religious discrimination); or
(b) Anything (whether an offence or not) which jeopardises or may jeopardise—
- (i) The safety of the aircraft or of persons or property on board the aircraft; or
- (ii) Good order and discipline on board the aircraft,
21 The measures taken by the aircraft commander must be reasonable and necessary for the following purposes (section 15(1) of the Act):
(c) To protect the safety of the aircraft or of persons or property on board the aircraft; or
(d) To maintain good order and discipline on board the aircraft; or
(e) To enable the commander to disembark or deliver that person in accordance with subsection (4) or subsection (5) of this section.
22 Section 15(3).
could be used to effect or facilitate the commission of such a crime. Section 17, it is concluded, also complies with the NZBORA and ICCPR.
Maritime Crimes Act 1999
The Maritime Crimes Act 1999 confers upon the master of a New Zealand ship rights of search and delivery, similar to those conferred upon an aircraft commander, although the powers of a ship master are much less than those of an aircraft commander. The first such distinction is that a ship master is only authorised to deliver a person to authorities where he or she suspects that a crime relating to ships23 has occurred. The Act is otherwise devoid of any express authority to detain or restrain a person, whether following the commission of such a crimes, or upon suspicion that an offence is being, or is likely to be, committed. Consideration of the NZBORA and ICCPR is therefore not necessary.
A limited right of search and seizure does, however, exist. Where the master of a ship believes on reasonable grounds that a crime against the MCA has been, is being or is likely to be committed on board the ship, section 12 of the Act allows the master or crew to search a person (and their baggage) where there are reasonable grounds to believe that he or she is involved in the offending.24 Search of any baggage which is believed, on reasonable grounds, to contain any article that has been used or could be used to effect of facilitate the commission of a crime under the Act is also authorised.25 Section 12 clearly imports the need for searches to be based upon reasonable grounds and does not purport to require arbitrary or unreasonable searches. It is concluded that the Maritime Crimes Act does not offend human rights.
International Terrorism (Emergency Powers) Act 1987
Section 10(2) of the International Terrorism (Emergency Powers) Act 1987 confers upon police (and military acting as an aid to police) various powers where an international terrorist emergency is declared. Although the powers conferred are not expressly those of detention or seizure, they are worth considering in brief. The powers under section 10(2) loosely fall
23 As set out in section 4 of the Act.
24 Section 12(2)(a) and (b).
25 Section 12 (2)(c).
within four categories. The first is the power to enter, and if necessary break into, any premises or place or vehicle which is within the area in which the terrorist emergency is occurring. Although this is a right of entry, and one that clearly impacts upon property rights, the power is not one that authorises investigatory search and seizure and does not, it is posited, impact upon human rights.26 The power is presumably meant to allow counter-terrorist agents to enter and occupy premises or vehicles for the purpose of observation or to facilitate other aspects of a counter-terrorist operation.
The next category of authorisations concerns the ability of the police or military to direct and restrict the movement of persons. Although associated with security of the person, these powers do not appear to impact upon arrest and detention rights, but instead upon the freedom of movement. The relevant parts of section 10 provide:
Subject to this Act, any member of the Police may, for the purpose of dealing with any emergency to which this section applies, or of preserving life or property threatened by that emergency,-
(a) Require the evacuation of any premises or place (including any public place), or the exclusion of persons or vehicles from any premises or place (including any public place), within the area in which the emergency is occurring:
(c) Totally or partially prohibit or restrict public access, with or without vehicles, on any road or public place within the area in which the emergency is occurring:
(g) Totally or partially prohibit or restrict land, air, or water traffic within the area in which the emergency is occurring.
These provisions clearly restrict the freedom of movement of persons made subject to directions issued under the provisions. In contrast, section 18(1) of the NZBORA and Article 12(1) of the ICCPR guarantee that every person shall enjoy the freedom of movement. One must therefore consider, by application of Rishworth’s Step 2, whether these limitations upon the freedom of movement are ‘consistent’ with the New Zealand Bill of Rights Act 1990 by application of section 5 of that Act. The author takes the view that this is a clear situation in which statutory limitations are justified under section 5. The objective of the provisions is a pressing and substantial one (dealing with an international terrorist emergency and preserving life or property threatened by that emergency). The provisions rationally pursue
26 The distinction needs to be made between property rights versus human rights (the former not a matter within the scope of the New Zealand Bill of Rights Act 1990 or the International Covenant on Civil and Political Rights).
that objective, by reasonable means, that are proportionate to the objective. Proportionality is achieved by expressly limiting the powers for the purpose of dealing with any emergency under the Act, or of preserving life or property threatened by that emergency. Proportionality is also met through the strict time limitations applicable to the ‘life’ of a terrorist emergency (sections 6 to 8) and the consequent availability of the powers. It is posited that the powers are also in accord with the permissible limitations upon the freedom of movement expressed within Article 12(3) of the ICCPR, allowing restrictions “which are provided by law, [and] are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others”.
The third category of powers relates to property rights, authorising police or the military to remove any type of vehicle27 that is within the area in which an emergency is occurring or is impeding measures to deal with the emergency.28 Where there are reasonable grounds to believe that any property within the emergency area constitutes a danger to any person, that property may be destroyed.29 Again, these affect property rights, which are outside the scope of consideration within this chapter. It is likely, however, that those limitations upon property rights are justifiable by application of principles of necessity and proportionality.
The final power is one of requisition of property, somewhat akin to seizure, but outside the parameters of criminal procedure. The power of requisition relates to any property within an emergency area and, by virtue of the first sentence of subsection (2), is limited to achieving the purpose of dealing with the emergency or of preserving life or property threatened by the emergency.30 As for the restrictions upon the freedom of movement, the author again concludes that the objective is sufficiently important and the means proportional to justify the limitation upon the freedom from unreasonable search and seizure. It is even open to conclude that the provision does not ‘limit’ the freedom as such but merely authorises the ‘reasonable’ seizure of property (permissible within the expression of the freedom itself).
27 Whether aircraft, hovercraft, ship, ferry, train or vehicle (section 10(2)(d) of the Act).
28 Section 10(2)(d).
29 Section 10(2)(e).
30 Section 10(2)f).
Conclusion
Although the three items of legislation examined contain provisions authorising (or relating to) search and seizure, and arrest and detention, it has been concluded that these provisions are not in breach of either the Bill of Rights or the International Covenant. The Aviation Crimes Act and Maritime Crimes Act include a number of authorisations to search and detain, none of which demand an arbitrary or unreasonable search or detention, nor exclude the operation of rights that are triggered when a person is arrested or detained. It has been concluded that this is the most that can be expected of authorising legislation. Notwithstanding this, there are mechanisms within the provisions directing that search and detention are to be conducted in a reasonable way and based upon reasonable grounds.
The International Terrorism (Emergency Powers) Act provides the police and military with emergency powers during an “international terrorist emergency”. Most of those powers impact upon property rights, rather than civil and political rights. Section 10(2)(a), (c) and (g) impact upon and limit the freedom of movement, although it has been concluded that this is consistent with both section 5 of the Bill of Rights and Article 12(3) of the International Covenant. The authority to requisition property within an emergency area has likewise been concluded to be justified.
Chapter 20
This text has examined New Zealand’s counter-terrorism obligations and the interface between those and its international human rights obligations (including the domestic instruments through which those obligations have been implemented). The aim of the text has been to asses New Zealand’s compliance with its international counter-terrorism and human rights obligations and identify, having regard to international and comparative action, what lessons might be learnt. The result has been mixed. Although New Zealand is, on the whole, compliant with its obligations to counter terrorism, there are some concerning aspects of its domestic counter- terrorism law when measured against human rights standards. Areas of deficiency have been identified, along with legislative action which has gone beyond the scope required of counter-terrorist obligations. Despite New Zealand’s reputation as an advocate for the universal promotion and protection of human rights, it must regrettably be concluded that human rights have been eroded in this country in the name of counter-terrorism.
Part I: Countering Terrorism
This text has been divided into three parts: first, considering counter- terrorism; next, considering the overall interface between terrorism, counter-terrorism and human rights; and, finally, looking at particular issues in focus.
The Nature and Definition of Terrorism 1
Although terrorism is not a new phenomenon, there is currently no universally accepted definition of the term. Popular and political understandings of terrorism are no less clear, although the various levels by which terrorism can and should be distinguished from ‘ordinary’ offending present a compelling case for the establishment of distinct, or at least complementary, law and practice targeted to countering terrorism. A
1 See, infra, chapters 2 and 3.
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This chapter is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
particularly difficult challenge to this law and practice is the recognition and understanding of the underlying motivations of those who perpetrate terrorist acts, something which again distinguishes terrorists from common offenders.
The question at law is what is to be countered? The international community has struggled to arrive at a comprehensive, concise and universally accepted legal definition of the term. There are now 13 terrorism-related conventions, but each is operational in nature focussing upon the protection of potential targets (people, air craft and air safety, and maritime navigation) or the means of perpetrating or supporting terrorist acts (nuclear terrorism , nuclear materials, plastic explosives, bombings, and the financing of terrorism). Their restricted focus is their limitation, although the 1999 Convention on the Suppression of the Financing of Terrorism provides a useful description of conduct which may not be financed. Despite the fact that a Draft Comprehensive Convention on the Elimination of Terrorism is under consideration, the controversy surrounding its definition of terrorism and exceptions thereto is unlikely to be resolved or, if resolved, is unlikely to see the level of State membership to remedy the problem.
The United Nations General Assembly and Security Council have likewise failed to reach consensus on a comprehensive definition, although the Security Council did describe the cumulative characteristics of conduct to be suppressed in the fight against terrorism in its resolution 1566 (2004). Appointed in 2005, the UN Special Rapporteur on the promotion and protection of human rights has picked up on this characterisation as providing the best way forward, achieving the objective of focussing the international community upon what conduct to suppress, while at the same time properly confining States so that they might not use counter-terrorism as a vehicle to extend powers or law into what may well be criminal conduct, but is not terrorist in nature.
New Zealand’s Counter-Terrorist Framework 2
As a party to the 12 terrorism-related conventions in force, and a signatory to the new International Convention on the Suppression of Nuclear Terrorism, New Zealand has a number of international obligations concerning the countering of terrorism. New Zealand’s membership in the United Nations also means that it bound by the obligations and directions of the Security Council on the issue of countering terrorism. It is similarly
2 See, infra, chapters 3, 4 and 5.
guided by the principles and recommendations enumerated within resolutions of the United Nations General Assembly and Commission on Human Rights. Indeed, the very nature of the international counter-terrorist framework is that all members of the international community must play their role in suppressing terrorist acts and preventing their territories from being used as platforms from which terrorist acts might be facilitated or supported. As a responsible international actor, whose domestic national interests rely upon the maintenance of a peaceful, secure, and free- functioning international society, New Zealand’s implementation of its international counter-terrorist obligations is important not only to its compliance with those obligations but also to the promotion of its own interests.
The international counter-terrorist obligations upon New Zealand have, over time, prompted it to enact six items of legislation, including regulations made under the United Nations Act 1946. Also considered within this book has been the International Terrorism (Emergency Powers) Act 1987. While the latter legislation was not enacted for the purpose of implementing New Zealand’s international obligations, it nevertheless forms an integral part of New Zealand’s legislative counter-terrorist framework. The New Zealand Parliament is about to consider further reform to this framework, under the Terrorism Suppression Amendment Bill 2007, seeking to amend the current regime for the designation of terrorist entities and introducing new terrorist and terrorism-related offences.
Part II: Terrorism, Counter-Terrorism, and Human Rights
Terrorism attacks the values that lie at the heart of the Charter of the United Nations and, depending upon the particular circumstances of a terrorist event, will impact upon human rights as well as various other areas of public international law: armed conflict; international criminal law; and international refugee law. States therefore have a duty not only to protect their own territory and nationals, but also to contribute to international peace and security by contributing to the fight against terrorism. That duty, fuelled by public pressure and various political motives, has seen both positive and negative consequences. The work of the UN Counter-
3 See, infra, chapters 6 and 7.
Terrorism Committee and the Terrorism Prevention Branch has seen an huge increase in the awareness of and action against terrorism since the events of September 11 in 2001. Regrettably, however, the proliferation of counter-terrorist legislation and action has also seen a negative and disproportionate impact upon the rule of law and human rights. While few have doubted that this could be acceptable, the Security Council has ultimately reminded States that they must comply with human rights when countering terrorism. International and regional organisations have said the same, some issuing guidance on the subject.
A hurdle identified in this text has been the determination of what ‘human rights compliance’ requires, having regard to the various and intricate obligations of human rights law as well as the challenges posed by the nature and ideology of terrorism. Building on a project undertaken by the author with the International Policy Institute on Counter-Terrorism, chapter 5 of this title has presented a series of steps to guide legislators, policy-makers and the judiciary on human rights compliance when countering terrorism. The guide identified the legal and practical requirements and challenges involved in this difficult task.
New Zealand’s Human Rights Framework 4
Largely as a result of legislative action in the 1980s and 1990s, New Zealand has a reasonably robust statutory human rights framework, complemented by the common law protection of rights and privileges. The New Zealand Bill of Rights Act 1990, the Human Rights Act 1993 and the Privacy Act 1993 are particularly relevant, each employing different methods of rights-protection and promotion. The Bill of Rights, through its operative provisions in sections 4, 5 and 6, has presented challenges to the methodology for application of the Act. This text has adopted the four-step process advocated by Professor Rishworth and others, and based primarily upon the Court of Appeal decision in Moonen v Film and Literature Board of Review.
Because the interface between terrorism and human rights often calls for a balance between the two to be struck, attention has been paid to the limitation of rights under New Zealand law. Four means have been identified, each dependent on the nature and status of the right being considered: repeal (applicable to common law rights and the privacy principles, subject to certain limitations); definitional (requiring an interpretation of the expression of the right or freedom); rights-specific
4 See, infra, chapter 8 and 9.
(invoking a provision which deals with the potential limitation of a specific right); and general (providing the means for limitation of a general body of rights by application of certain tests). In the latter category, section 5 of the NZ Bill of Rights Act permits limitations to be placed upon rights and freedoms where such limitations are demonstrably justified in a free and democratic society. Canadian and New Zealand case law have developed a set of tests and principles to be invoked in the application of the justified limitations provision which, of benefit to this study, fit neatly with the international guide on human rights compliance when countering terrorism advocated by the author.
Part III: Issues in Focus
Having examined the international framework for countering terrorism, New Zealand’s corresponding law, and the interface between human rights and counter-terrorism, the final part of this text examined issues in focus. Progressing from democratic and civil rights to those triggered by the criminal process, chapters 12 to 19 considered the freedom of expression, freedom of association, natural justice and the right to a fair hearing, privacy, the privilege against self-incrimination, the freedom from unreasonable search and seizure, the freedom from arbitrary detention and rights triggered upon arrest or detention. These assessments have revealed areas of concern from both a human rights and counter-terrorist perspective.
Deficiencies in New Zealand’s Counter-Terrorism Law
New Zealand must be complemented on its positive response to its international counter-terrorism obligations, with much work having been done to take appropriate treaty action and implement domestic measures for compliance. Three matters require attention, one of which is addressed by the recently introduced Terrorism Suppression Amendment Bill 2007.
Other than granting a special status to information provided by the UN Security Council, the Terrorism Suppression Act 2002 does not currently distinguish between “domestic designations” (designations that can be
5 See, infra, chapters 11 and 14.
initiated by the New Zealand Government) and “UN designations” (the designation of individuals and entities that have been listed by the UN Security Council 1267 Sanctions Committee). This is problematic due to New Zealand’s obligations under the Charter of the United Nations and applicable resolutions of the Security Council on the subject. The Terrorism Suppression Amendment Bill 2007 looks to resolve this by removing UN- listed entities from the scope of the Terrorism Suppression Act, instead making designation under New Zealand law automatically linked to listing by the UN. This will presumably be done by Orders in Council under the United Nations Act 1946.
It is proper that New Zealand act to ensure that UN-listings have automatic effect. However, given a wide level of concerns about the due process compliance of UN listings, this text provides a qualified level of support for this legislative amendment. Chapter 11 has discussed the tension between the need for New Zealand to comply with binding decisions of the Security Council, and the need to ensure that regulations under the United Nations Act 1946 do not encroach upon the rights and freedoms set out under the New Zealand Bill of Rights Act 1990. To meet the challenges of this tension, recommendations for changes to the regulation-making power under the United Nations Act have been made.
The Terrorism Suppression Act sets out three definitions of the term “terrorist acts”, one of which is linked to the universal terrorism-related conventions. Sections 4(1) and 5(1)(b) prohibit acts that constitute an offence under one of the nine terrorism conventions listed in Schedule 3 to the Act. Schedule 3, however, does not list the Convention for the Suppression of the Financing of Terrorism, the Convention on the Marking of Plastic Explosives for the Purpose of Detection, nor the Convention on Offences and Certain Other Acts Committed On Board Aircraft. To meet the Security Council’s characterisation of conduct to be suppressed in the fight against terrorism, all conventions should be listed.
As it stands, New Zealand law prohibits certain conduct that might amount to the incitement to terrorism. This law, however, fails to properly capture
6 See, infra, chapter 16.
7 See, infra, chapter 13.
the incitement to terrorism, the suppression of which has been called for by the Security Council in its resolution 1624 (2005). Current law either imposes too low a maximum penalty, has jurisdictional limitations, or does not capture all forms of incitement. With this in mind, consideration has been given to the offences of incitement to terrorism and dissemination of terrorist publications under the Terrorism Act 2006 (UK). Subject to certain safeguards identified, New Zealand could learn from this legislative action by the UK and should act to formulate an offence of incitement to terrorism.
Definition of Terrorism under New Zealand Law 8
As mentioned, Terrorism Suppression Act sets out three definitions of the term “terrorist acts”. The expression is significant, because it is linked to the domestically-based designation of terrorist or associated entities. It is also linked to various terrorist or terrorism-related offences, including a new offence proposed by the Terrorism Suppression Amendment Bill 2007 of undertaking a terrorist act. Regrettably, however, all three definitions fall outside the scope of conduct to be suppressed in the fight against terrorism, as characterised by the Security Council in its resolution 1566 (2004) and endorsed by the UN Special Rapporteur on counter-terrorism. The current definitions are overly broad and capture conduct which, while certainly criminal, falls outside the scope of terrorism. This is a matter which, in the view of the author, requires urgent attention.
While on the subject of offences, mention should be made of a further amendment proposed by the Terrorism Suppression Amendment Bill 2007. The Bill is to remove the ‘avoidance of doubt’ provisions concerning terrorist financing offences. Sections 8(2) and 10(2) currently provide that, for the avoidance of doubt, the provisions of sections 8 and 10 do not make it an offence to provide or collect funds intending that they be used, or knowing that they be used, for the purpose of advocating democratic government or the protection of human rights and that is not involved in any way in the carrying our of terrorist acts. The Explanatory Note to the Bill describes that these provisions have created uncertainty and that
8 See, infra, chapter 16.
removal of the provisions will remove ambiguity. No reasons have been given, however, as to how or why the avoidance of doubt provisions have created uncertainty. To the contrary, they appear to be beneficial, since they make it clear that sections 8 and 10 are not meant to interfere with the lawful support by New Zealanders of organisations promoting human rights or democracy.
A Qualified Clean Bill of Health 9
Aspects of New Zealand’s counter-terrorism law cannot be criticised in principle. These include the limitation of the freedom of association through the prohibitions against the provision of funds to, or collection of funds for, a designated entity, or the provision of property or financial services to such entities. Search and seizure, and arrest and detention, provisions are likewise free from criticism in the abstract. What is of concern, however, is the links between these powers and proscriptions with the definition of “terrorist acts” (identified as being overly broad) and the process for the designation of terrorist and associated entities (identified as requiring reform).
A Clean Bill of Health 10
One area in which a clear statement in support of the law can be made concerns the media control provisions of the International Terrorism (Emergency Powers) Act 1987. Although the powers of the Prime Minister are rare, they are linked to appropriate objectives (the safety of persons, and the integrity of counter-terrorism operations), as well as being susceptible to judicial review.
Unjustified Limitations
There are three specific and one general concern about New Zealand’s counter-terrorist legislation that see New Zealand acting in breach of international law and the international guidelines on counter-terrorism and human rights, and therefore call for legislative reform.
9 See, infra, chapters 14 and 19.
10 See, infra, chapter 12.
The first specific concern relates to the protection afforded to classified security information under the Terrorism Suppression Act designation process. This is neither justifiable under section 5 of the NZBORA, nor within the expression of rights under article 14 of the ICCPR, so that the relevant provisions constitute a breach of the ICCPR that cannot be justified at law or in policy. This text has made various proposals for reform which could render that process human-rights compliant, while still affording classified security information an appropriate level of protection.
In the case of requests for information made under section 198B of the Summary Proceedings Act 1957 (where made subsequent to a person’s arrest), the application of this provision outside the scope of an identified and pressing objective fails to satisfy section 5 of the Bill of Rights as a justified limit upon section 23(4) of the NZBORA. BY operation of section 4 of the NZBORA, however, it is ‘not invalid’. While this does not breach the ICCPR, since there is no comparable provision in the Covenant to section 23(4) of the NZBORA, it fails to comply with the international guidelines on counter-terrorism and human rights.
The third specific concern relates to the use of tracking devices under sections 200A to 200P of the Summary Proceedings Act 1957. In this case, the lack of safeguards against the arbitrary or unlawful interference with privacy by use of tracking devices renders the regime both in breach of Article 17 of the ICCPR and the international standards on counter- terrorism and human rights.
Finally, the general concern mentioned relates to New Zealand’s use of its international counter-terrorist obligations as an excuse to extend State powers beyond counter-terrorism. The enactment of sections 198B and
11 See, infra, chapter 15.
12 See, infra, chapter 18.
13 See, infra, chapter 17.
14 See, infra, chapters 17 and 18.
200A to 200P of the Summary Proceedings Act (requests for information and tracking devices) was said, in the introduction to the Counter-Terrorism Bill, to reflect “the need for New Zealand to ensure we have a comprehensive legislative framework in place that reflects the new, more dangerous era of international terrorism”. However, those provisions are not limited to countering terrorism but instead have the potential to apply to the investigation of any offence punishable by imprisonment. This is contrary to the international guidelines on counter-terrorism and human rights, which express that counter-terrorism measures should directly relate to terrorism and terrorist acts, not to acts that are ordinary crimes.
Appendix 1
A Guide to Legislators, Policy-Makers and the Judiciary on Human Rights Compliance When Countering Terrorism
The balance between counter-terrorism and the unlimited enjoyment of human rights is capable of determination by application of the following steps in the examination of (existing or proposed) provisions of counter- terrorist laws, or counter-terrorist measures.
Part One: Counter-Terrorist Measures Must Comply with Human Rights Standards
Measures implemented to counter terrorism must comply with applicable international human rights treaties and with relevant customary law norms of international human rights law.
(a) The counter-terrorist measure impacts upon a right that is a peremptory norm of customary international law. If so, the counter-terrorist measure cannot impose any limitations upon the right or freedom.
(b) The counter-terrorist measure impacts upon a right that is not derogable under an applicable human rights treaty. This will normally mean that the counter-terrorist measure cannot impose any limitations upon the right, although this depends upon the particular expression of the right. Where the expression permits a limitation upon the right, such
© Dr Alex Conte 2007
Reader in Law, University of Southampton, England (alex.conte@soton.ac.uk)
This appendix is from the title Counter-Terrorism and Human Rights in New Zealand. Electronic copies of this publication, in full or in part, are available online at <http://www.lawfoundation.org.nz>
limitation must be within those terms and to the extent necessary and proportionate.
(c) The counter-terrorist measure impacts upon a right that is only derogable during a state of emergency threatening the life of the nation. In that case, the State must determine whether such an emergency exists, within the meaning of the applicable human rights treaty. If so, the State must:
- (i) lodge a proclamation of derogation (in accordance with the requirements of the particular treaty);
- (ii) continually review its circumstances to ensure that the derogation lasts only as long as the state of emergency exists; and
- (iii) ensure that the derogation is necessary and proportionate.
(d) The counter-terrorist measure impacts upon a right that is neither peremptory nor derogable only in states of emergency. If so, the State must ensure that:
- (i) the limitation is within the permissible range of limits provided within the treaty or customary definition of the right; and
- (ii) the limitation is necessary and proportionate.
(a) Counter-terrorist measures seeking to impose limitations upon rights and freedoms must be prescribed by law, requiring such prescriptions to be adequately accessible and formulated with sufficient precision so that citizens may regulate their conduct.
(b) Prescriptions must respect the principle of non-discrimination and equality before the law.
(c) Prescriptions may not confer an unfettered discretion, they must not be arbitrarily applied, and they must be implemented by means that establish adequate checks and balances against the potential misuse or arbitrary application of counter-terrorist powers.
(d) Prescriptions must be confined to countering terrorism.
Appendix 1: Guide on Human Rights Compliance When Countering Terrorism 427
Part Two: Necessity and Proportionality
(a) It is in pursuit of a pressing objective. In principle, the objective of countering terrorism is one that is pressing and substantial in a free and democratic society and one that may therefore justify the limitation of derogable human rights. Notwithstanding the importance of counter- terrorism per se, it is the particular objective of the legislative provision or counter-terrorist policy/measure in question that must be assessed. It will be instructive in this regard to identify how the measure or provision links with:
- (i) The countering of an actual threat of terrorism against the State;
- (ii) The countering of a potential threat of terrorism against the State;
- (iii) Its contribution to the international framework on counter- terrorism; and
- (iv) Its contribution to other national interests.
(b) It is rationally connected to the achievement of the objective being pursued, requiring the counter-terrorist measure being examined to logically further the objective of countering terrorism.
(a) The measure or provision must effect a “limitation” upon rights, rather than an exclusion of them, or such a sever limitation that would impair the essence of the right or freedom being affected.
(b) The human rights impact of the counter-terrorist measure must be determined by considering the following questions:
- (i) What is the importance of, or the degree of protection provided by, the right or freedom affected?
- (ii) What are the effects of the limiting provision (or measure) upon the right or freedom?
(c) The value to be accorded to the counter-terrorist measure must be determined by considering the following questions:
- (i) What is the importance of the objective being pursued by the counter-terrorist provision or measure?
- (ii) How effective is the counter-terrorist measure in achieving its objective (what is its ameliorating effect)?
(d) With the aim of producing the least reasonably intrusive means of achieving the counter-terrorist objective, balance the two scales by asking the following substantive question:
Having regard to the importance of the right or freedom [4(b)(i)], is the effect of the measure or provision upon the right [4(b)(ii)] proportional to the importance of the objective, and the effectiveness, of the legislative provision or measure [4(c)]?
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/NZLFRRp/2007/2.html