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Human Rights and Non-discrimination in the 'War on Terror'$

Daniel Moeckli

Print publication date: 2008

Print ISBN-13: 9780199239801

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199239801.001.0001

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Introduction: Liberty and Security in an Age of (Counter-)Terrorism

Introduction: Liberty and Security in an Age of (Counter-)Terrorism

(p.1) 1 Introduction: Liberty and Security in an Age of (Counter-)Terrorism
Human Rights and Non-discrimination in the 'War on Terror'

Moeckli Daniel

Oxford University Press

Abstract and Keywords

According to the dominant discourse, the key challenge for liberal democracies when fighting terrorism is to find the right balance between liberty and security. This chapter argues that the image of balance is misleading because it is based on overly abstract and simplistic conceptions of liberty, security, and the relationship between the two. In particular, the balancing language is based on a generalising notion of liberty: it suggests that everyone's human rights are equally affected by a rebalancing in favour of security. The aim of this book is to examine whether this suggestion holds true and to determine how far an unequal distribution of liberty is compatible with the human right to non-discrimination. The chapter also explains the scope of the book and its structure.

Keywords:   balance, human rights, scope of research, book structure

As America awakens to the reality of being at war—and permanently so—with an enemy that has as yet no face and no name, it must ask itself what balance it should keep between liberty and security in the battle with terrorism.

Michael Ignatieff, 13 September 20011

We’re in a new world where we have to rebalance freedom and security.

US Congressman Richard Gephardt, 13 September 20012

In the post-September 113 era, liberal democracies face the question of whether, and if so to what extent, they should change the relationship between liberty and security. The political and legal debate on this issue has been predominantly framed in the language of (re)balancing the two interests. Michael Ignatieff is just one of many influential scholars who have employed the image of balance to describe the challenge. Alan Dershowitz, for instance, has similarly called for ‘striking a new balance’4 in the face of ‘new and different dangers’,5 as have various German writers.6 And the term ‘balance’ not only figures prominently in the vocabulary of leading US politicians such as Richard Gephardt, but also in that of European policy-makers. For example, during its presidency of the European Union (EU), the British government presented a report entitled ‘Liberty and (p.2) Security: Striking the Right Balance’ that proposed new measures against terrorism.7 Thus, according to the dominant discourse, the key challenge for a liberal democracy when fighting terrorism is to find the right balance between respect for human rights, as legal guarantees of individual liberty, and the protection of national security.

However, I believe that the balancing metaphor is not a helpful device to frame the relationship between liberty and security. As I argue in the following section, the choice that the image of balance suggests is misleadingly simplistic and may obscure the real interests and issues at stake. The most significant limitation of the balancing language is that it is based on a generalising notion of liberty: it suggests that everyone's human rights are equally affected by a rebalancing in favour of security. My aim in this book is to examine whether this suggestion holds true. What impact do contemporary anti-terrorism8 measures, as the concrete consequences of the post-September 11 call for a rebalancing, have on the human rights of particular groups and individuals? Have restrictions on liberty been equally distributed among different categories of people? Or have states tried to avoid a true rebalancing of liberty and security by sacrificing the human rights of a minority? At the same time, I seek to determine how far an unequal distribution of liberty, as a consequence of anti-terrorism measures, is compatible with what is commonly described as one of the key components of a liberal democratic system—namely, the human right to equality and non-discrimination, which requires that, as a general rule, everyone should enjoy the same rights and liberties.

The first section of this chapter (Section 1.1) presents several shortcomings of the notion of balance and, based on this critique, identifies the most important themes to be explored in this book. An analysis of these issues involves the adoption of a particular scope of research; Section 1.2 explains these choices. Finally, Section 1.3 gives an overview of the book's structure.

1.1 Beyond the language of balance

The image of balance places liberty on one side of the scale and security on the other, portraying them as interests in natural opposition: when one is reduced, the other is automatically increased. In this section, I argue that this image is misleading because it is based on overly abstract and simplistic conceptions (p.3) of, first, liberty, second, security, and, third, the relationship between the two. Therefore, this book is based on a human rights perspective that goes beyond a mere balancing approach and takes account of the limitations of that approach.

1.1.1 Liberty and its distribution

The idea of balance starts from an overly abstract, generalising concept of liberty that concentrates attention on the total amount of freedom. However, what is also important is the distribution of that freedom among different individuals and different societal groups.9 In other words, whose liberties are put on the scales?

The question as to the distribution of liberty is particularly acute in the context of national security measures. When it comes to security interests, utilitarian arguments promoting ‘the greatest happiness of the greatest number’10 may seem especially appealing. As Ignatieff has acknowledged, the historical record suggests ‘that majorities care less about deprivations of liberty that harm minorities than they do about their own security’.11 This may be all the more true in a time of perceived crisis, such as that caused by the events of September 11. Those who have argued that the post-September 11 threat justifies the use of torture for the interrogation of terrorist suspects, for example, have regularly relied on utilitarian reasoning.12 The balancing metaphor obscures this potential bias: that what are being weighed against each other may, in reality, be the majority's security on the one hand and the liberty of only a minority—and of a very specific minority, for that matter—on the other.

That the challenge posed by security measures to the protection of human rights has been predominantly framed in the abstract language of balance may help explain why the issue of disparate treatment in this area has not gained much (p.4) attention in academic writing.13 It is telling, for example, that Iain Cameron's extensive study of national security law and practice in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)14 deals with all the Convention articles, from the prohibition of slavery to the right to marry, except for Article 14, the prohibition of discrimination.15 Despite the renewed appeal of utilitarianism in the wake of September 11, and, consequently, the greater potential for security measures to focus disproportionately on minorities, this situation has remained largely unchanged: not many authors have examined the laws and practices introduced after that date for their impacts on marginal groups or explored the respective legal implications. While David Cole criticises the US government's targeting of foreign nationals in the wake of September 11, his analysis is confined to the particularities of the American system and is not concerned with developments elsewhere; nor does he attempt to assess the US anti-terrorism measures for their compatibility with the right to non-discrimination as guaranteed by international human rights law.16 The targeting of minority groups in the United States is also the subject of a book by Michael Welch, but he approaches the subject from a sociological perspective and is not concerned with the legal implications.17 Other authors have addressed the selective tightening of immigration regulations18 or the re-emergence of racial profiling as a widespread police tactic in the wake of September 11.19 However, these analyses again take a US, rather than an international, perspective and are further restricted by their narrow subject matter. In the United Kingdom, the issue of disparate treatment in the post-September 11 context has only received attention after the House of Lords, in December 2004, ruled that the preventive detention powers of the Anti-terrorism, Crime and Security Act (ATCSA) (p.5) 2001 violated the prohibition of discrimination.20 Even since then, the focus of academic writing has remained mostly limited to a discussion of this particular case.21 Finally, the new anti-terrorism legislation in Germany has received criticism from several authors,22 including Dominik Bender who examined its implications for the immigration law.23 However, none of these writers has analysed anti-terrorism measures from a discrimination perspective.

I seek to address this gap and to explore comprehensively whether anti-terrorism laws and practices adopted by liberal democracies after September 11 have disproportionately affected the liberty interests of particular categories of people. Have states, in reality, tried to avoid a true readjustment of the relationship between liberty and security by imposing the most far-reaching restrictions of human rights on marginal groups? If so, according to what criteria have these groups been defined?

Anti-terrorism measures that involve disparate treatment raise fundamental issues regarding the right to equality and non-discrimination, one of the cornerstones on which both the concepts of liberal democracy and human rights rest.24 Equality and non-discrimination requires that everyone should enjoy the same rights and liberties; differential treatment based on criteria such as citizenship status, nationality, ‘race’,25 ‘ethnicity’,26 national origin, or religion is only permissible if there are objective and reasonable grounds for it.27 Therefore, my central aim is to determine whether the way in which states, in the name of fighting terrorism, have restricted the liberties of different categories of persons is compatible with this human right.

(p.6) This approach of using the right to equality and non-discrimination as a standard against which to judge governmental security measures is largely inspired by historian EP Thompson's espousal of the rule of law.28 Thompson understood that the rule of law is an effective limitation of ruling power and, in this respect, as he famously proclaimed, ‘an unqualified human good’.29 This power-restraining effect of the rule of law stems from the fact that one of its fundamental requirements is that the laws must be equally applied to everyone, both the powerful and the powerless.30 This requirement, in turn, has a profound impact on political processes: it forces those in power to articulate their claims in terms of universally applicable rules, rendering them ‘prisoners of their own rhetoric’.31 I believe that, in this sense, the equality guarantee, the central aspect of Thompson's conception of the rule of law,32 can be seen, and used, as a safeguard to protect those who are most likely to be subjected to the worst excesses of state power. US Supreme Court Justice Jackson stressed this crucial function of equality and non-discrimination more than fifty years ago:

[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.33

One of my objectives in this book is to explore whether this political potential of the right to non-discrimination can also be successfully used in the context of the current campaign against terrorism. Can the equality guarantee serve as an effective instrument to counter the utilitarian arguments that seem to exert a renewed appeal in the post-September 11 era? Can requiring ‘the democratic majority to accept for themselves and their loved ones what they impose on you and me’34 pave the way for a more honest and open debate on the relationship between liberty and security? Can insisting on non-discrimination and forcing political actors to project themselves into the position of potential subjects of anti-terrorism powers ultimately result in anti-terrorism regimes that are more just?

(p.7) 1.1.2 Security

The image of balance portrays security as a given and measurable concept that is in natural opposition to liberty. In reality, however, ‘security’ is not a fixed value but a concept whose meaning is inherently a matter of dispute because no neutral, politics-free definition is possible.35 As a consequence, there are as many definitions of ‘security’ as there are writers on the subject.36 What has been common to traditional notions of security is that they have invariably centred on the state—its borders, people, institutions, and values. According to this view, it is the state that is the principal object of security, as well as its guarantor, with other states constituting the main source of security threats.37

Although this ‘national security’ model of security continues to dominate much academic thinking and policy-making, it has been increasingly subject to challenge in recent years.38 The main thrust of this criticism is that states, rather than being guarantors of security, are often themselves the major source of threat to their own citizens: political repression and violence, civil war, and genocide can all arise directly or indirectly from state policy.39 The failure of a state-focused understanding of security to take account of this fact has contributed to the emergence of a new, more comprehensive, concept: ‘human security’.40 The human security paradigm takes the security of the individual human being—their life, livelihood, dignity, and rights—rather than that of the state as its central point of reference. Thus, according to this, ever more influential,41 concept, respect for individual liberty and human rights is not in opposition to security but at its very heart.42

(p.8) However, if the goals of liberty and security are not diametrically opposed but may in fact converge, then human rights restrictions also represent a loss of security. They would, if one were to use the language of balance, have to be counted on both sides of the scale.43 This understanding of liberty and security as closely interlinked casts into doubt the dominant assumption that national security constitutes some greater common good that tends automatically to override individual interests. Consequently, it also raises important questions with regard to prevailing approaches to the review of anti-terrorism measures.44 Should the invocation of the terrorist threat to derogate from, or limit, human rights guarantees not meet with different, more demanding, thresholds? Should the courts not subject anti-terrorism measures to closer judicial review than has so far been the case?

Proponents of the human security concept have highlighted a further limitation of the state-centred security paradigm that may have particularly important implications in the terrorism context: the traditional conception of security has focused almost exclusively on the military defence of territorial boundaries from external aggression by other states.45 The human security concept addresses this shortcoming by broadening the source of possible threats to include a range of menaces beyond military force, including those emanating from non-state actors and internal sources.46 However, do contemporary counter-terrorism policies take sufficient account of this changing understanding of security or are they—as the prevalent use of the term ‘war on terror’47 seems to suggest—still primarily grounded in the traditional national security paradigm? Can, and should, terrorist groups be treated as unitary actors in the way that states have been treated?48 Does the fight against terrorism lend itself to a precise definition of the source of the threat, as suggested by US President Bush's famous dictum that ‘[e]ither (p.9) you are with us or you are with the terrorists’?49 Is a clear distinction between ‘internal’ and ‘external’ security possible in the post-September 11 world? These issues are of significant importance to a human rights analysis of anti-terrorism measures and will therefore be considered in several of the following chapters.

The notion of security as employed in the balancing language is simplistic and misleading in another, temporal, respect. What is used to outweigh the—certain—diminution in liberty is in reality not a specifiable gain in security but rather the potential protection from prospective, and therefore unquantifiable, risk.50 Reducing security to a measurable concept is particularly difficult because it is often used to refer to a state of mind that is largely independent of objective threat. Especially in the face of catastrophic terrorist scenarios, ‘risk occupies a larger space in our collective psyche than rational calculation would dictate’.51 Accordingly, policy-making in the counter-terrorism field is driven to a considerable degree by efforts to minimise future risks or at least reassure the public—in the words of Ulrich Beck, ‘to feign control over the uncontrollable’.52 Arguably, this phenomenon is not limited to the terrorism context. Rather, it forms part of a broader process, identified by a number of social theorists, whereby modern society is transforming itself into a global ‘risk society’ that places risk and damage control at its centre.53 As a consequence of this general trend, crime-fighting strategies are increasingly concerned with the prediction and prevention of risks rather than the prosecution of past crimes.54 This paradigm shift towards preventive action poses critical challenges for the protection of human rights in general and the right to non-discrimination in particular—challenges that I will address at various points throughout this book.

1.1.3 The relationship between liberty and security

The image of balance is not only based on overly abstract and simplistic conceptions of the two interests to be weighed, but also of the relationship between the two. First, as already pointed out in the previous section, liberty and security (p.10) are not as diametrically opposed as the balancing language suggests. The second limitation of the metaphor is that it implies that liberty and security are in a relationship of balance, with the one automatically increasing when the other is reduced. This notion has obvious appeal. As Ronald Dworkin pointed out, ‘[t]he metaphor of balancing the public interest against personal claims is established in our political and judicial rhetoric, and this metaphor gives the model both familiarity and appeal.’55 Crucially, the idea that liberty and security are in a relationship of balance is inherent to the very body of law that protects individual liberties from state intervention. The ‘Digest of Jurisprudence of the UN and Regional Organizations on the Protection of Human Rights While Countering Terrorism’, prepared by the United Nations (UN) Office of the High Commissioner for Human Rights, stresses that ‘[h]uman rights law has sought to strike a fair balance between legitimate national security concerns and the protection of fundamental freedoms.’56 This observation is supported by the fact that almost all human rights treaties allow states to derogate from certain human rights obligations in case of a public emergency.57 Furthermore, even in the absence of an emergency, most rights may be subject to proportionate limitations to accommodate national security concerns.58

However, the proportionality test required by human rights law, including as far as it must be applied in the context of the right to non-discrimination, is in fact much more multifaceted than the language of balance suggests. The question that needs to be answered when proportionality is at issue is not simply whether a state has struck the right balance between some abstract notions of liberty and security—by how much liberty can be reduced when a security threat increases. Rather, the principle of proportionality requires a detailed inquiry into whether a concrete human rights restriction is supported by relevant and sufficient reasons and whether it is a suitable, necessary, and proportionate means for the protection of national security. It necessitates a complex assessment of the appropriateness and effectiveness of the measure in question and of its potential negative effects, especially with regard to the impacts it may have on particular individuals and groups.59

The application of the balancing approach only serves to obscure the need to assess the suitability and effectiveness of security measures by suggesting that reducing liberty will automatically reduce risk—for instance, that limiting the fair trial rights of terrorist suspects will enhance security.60 In this vein, the (p.11) famous ‘ticking bomb’ scenario, often employed to justify the torture of alleged terrorists, implies that coercive interrogation will in fact work in producing crucial and reliable information.61 Yet this is a hypothetical assumption that has never been backed up by reliable evidence.62 Instead, a proper human rights analysis of anti-terrorism measures must be based on a detailed examination of the suitability and effectiveness of the measures under consideration. For example, do restrictions of the right to non-discrimination made in the context of the executive detention of terrorist suspects contribute to the prevention of terrorism? Is racial profiling a suitable and effective method to identify potential terrorists? These kinds of questions will form a central component of the test used in this study to assess the proportionality of anti-terrorism measures.

There is a further reason why the balancing approach is inadequate and misleading: it focuses on the relationship between liberty and security—or rather the need for a rebalancing of this relationship—at one particular point in time. However, the significance of anti-terrorism measures for human rights also needs to be considered with a view to the long-term effects.63 What are the consequences of anti-terrorism measures that disproportionately affect minority groups for the cooperation of these groups with law enforcement agencies and, more generally, for the legitimacy of the fight against terrorism? How does tipping the balance in favour of security during an emergency situation affect the liberty–security relationship in the longer term? Can exceptional measures introduced in the fight against terrorism become part of the ordinary law? These issues will not only play an important role in the assessment of the proportionality of the anti-terrorism measures examined here: they also build the specific focus of the final chapter, which explores the impacts that anti-terrorism measures involving differential treatment may have on a state's legal system in general.

1.2 Scope of the book

As explained in the previous section, my aim in this book is to explore how the concrete consequences of the call for a readjustment of the balance between liberty and security have affected respect for human rights and, more specifically, the right to non-discrimination. To do this, I analyse laws and law enforcement practices introduced after September 11 to counter international terrorism in three liberal democracies—the United States, the United Kingdom, and Germany—from the perspective of the right to non-discrimination as guaranteed by international law.

(p.12) 1.2.1 Measures introduced after September 11

The widespread call for a rebalancing of liberty and security in the wake of September 11 has had a significant impact. In the months and years after September 11, a myriad of security measures were adopted at the international, regional, and national levels.64 It is on these recent developments that I focus in this book. Of course, anti-terrorism measures had already been in place at all three levels for several decades, and many of the new laws and practices consolidate or extend these previous instruments. However, the post-September 11 surge in legislative and other activities designed to counter terrorism has nevertheless been extraordinary. In addition, many of the recent policies are—especially as far as their human rights implications are concerned—unprecedented and thus deserve special attention.65 Anti-terrorism laws and practices remain in constant flux at the time of writing; I have been able to address relevant developments and court decisions up to June 2007.

1.2.2 International terrorism

This book centres on measures that are primarily designed to deal with international terrorism, as opposed to laws and practices purportedly addressing domestic or internal terrorism situations. The definition of ‘terrorism’ in itself poses complex problems and these are explored in detail in Chapter 2. The distinction between ‘internal’ and ‘international’ terrorism, for its part, has been defined as follows: ‘Internal terrorism is confined within a single state or region while international terrorism, in its most obvious manifestation, is an attack carried out across international frontiers or against foreign targets in a terrorist's state of origin.66’ International terrorism has also been described, more broadly, as any terrorist violence with international repercussions.67 Today, most terrorist acts have international dimensions; it is almost impossible to locate cases of terrorist activity ‘that are not internationally supported, targeted abroad, fomented by prevailing global circumstances, global in their repercussions, or addressed to the global community in some manner’.68 Yet, even though purely internal terrorism within these terms—and, with it, measures designed to address it—have become rare, the distinction still serves a useful purpose here, as it helps to narrow (p.13) down the scope of analysis to measures dealing with terrorism that is not primarily domestic in origin or orientation. As a consequence, this book does not cover laws and practices specifically introduced in the context of, for example, the conflict in Northern Ireland.69 Nevertheless, the experiences that have been made with such anti-terrorism measures offer an important resource of information that I draw upon.

1.2.3 Choice of states

My purpose is to explore changes to the liberty–security relationship in states that claim to practise liberal democracy. ‘Liberal democracy’ is generally defined as a form of representative government by majority rule that includes the protection of the rights and liberties of the individual and subjects the exercise of decision-making power to the rule of law.70 It is for states with such structures that the question of how they should react to terrorism represents a particular challenge, as their response may involve changes to what they define as the very basis of their state system. For states that fail to provide guarantees of fundamental liberties in the first place, on the other hand, the dilemma may be less acute. In addition, liberal democratic states are of particular interest because their systems of government include processes that allow the outcomes of the public debate on the liberty–security relationship to be brought to bear on political decisions.

More specifically, I concentrate on the post-September 11 laws and practices of the following three states: the United States, the United Kingdom, and Germany. These states belong to the most powerful liberal democracies and their counter-terrorism strategies are, therefore, particularly influential in setting benchmarks for other governments. This is illustrated, for example, by the fact that Kenya has introduced an anti-terrorism law that was closely modelled after the USA Patriot Act.71 Similarly, the Pakistani government replied to criticism of its anti-terrorism laws by stating that they were comparable to legislation passed in several European states and less severe than the United States' indefinite detention of the Guantánamo prisoners.72 Moreover, due to their influential position within the EU, the counter-terrorism policies of the United Kingdom and Germany also have the potential to decisively shape respective pan-European strategies.

Importantly, the post-September 11 policies of the United States, the United Kingdom, and Germany represent three different approaches to combating (p.14) terrorism. The USA Patriot Act and other new legislation adopted by the United States constitute probably the most significant legislative reaction to the attacks of September 11 anywhere in the world.73 Further, more than any other state, the United States has treated its campaign against terrorism as a war rather than a law enforcement operation, resorting to practices such as targeted killings, indefinite detention at extraterritorial locations, renditions, and trial by military commissions.74

The United Kingdom is the only European state to have declared a state of emergency and derogated from parts of the ECHR following September 11.75 The events of that date and, later, the London bombings of 7 July 2005 have triggered remarkable legislative activity in the United Kingdom, with no less than three major pieces of legislation passed between 2001 and 200676 and a further anti-terrorism law proposed in 2007.77 In addition, after the London bombings, the British government also made significant changes to its immigration law enforcement policy.78 Finally, an analysis of the British post-September 11 strategy is particularly instructive because it allows comparisons with laws and practices previously adopted in the Northern Ireland context.

While other continental European states, in particular Spain79 and France,80 may have reacted more resolutely to recent terrorist events, Germany is a representative example of the numerous European states that have adopted specific new anti-terrorism measures without resorting to a complete overhaul of their legal system.81 Some of these measures, including limited legislative changes and new law enforcement methods, are of particular significance because the German government has repeatedly called for their EU-wide adoption, so that other European states could soon resort to them as well.82 Like the United Kingdom, Germany already had to deal with terrorism earlier, in the 1970s and 1980s, when (p.15) the Red Army Faction (RAF) carried out a number of attacks.83 It will be revealing to investigate potential continuities between the German post-September 11 policies and the previous methods employed against the RAF.

Finally, the three states are of particular relevance from a discrimination perspective because all of them have ethnically and religiously diverse populations, including significant immigrant communities. In the United States, 11 per cent of the population are foreign born and 24.9 per cent belong to an ethnic minority (12.3 per cent are ‘Black or African American’, 3.6 per cent ‘Asian’).84 In the United Kingdom, 7.9 per cent of the population belong to an ethnic minority (4 per cent are ‘Asian or Asian British’, 2 per cent ‘Black or Black British’) and 2.7 per cent are Muslim; approximately 9 per cent of the population in England and Wales are foreign (non-UK) born.85 In Germany, around 9 per cent of the population are foreign nationals and 4 per cent are Muslim.86

1.2.4 A discrimination perspective

For the reasons explained above, I seek to explore whether the ‘war on terror’ has disproportionately affected the liberty interests of particular categories of people and, as far as this is the case, whether this is compatible with the right to non-discrimination. Therefore, the following chapters examine the post-September 11 measures of the United States, the United Kingdom, and Germany to determine whether they involve disparate treatment of certain groups of people. I analyse anti-terrorism laws to identify whether they contain powers that are only applicable to, say, foreign nationals or other minorities. Similarly, I examine law enforcement practices employed in the fight against terrorism, including immigration law enforcement efforts and police tactics, through an evaluation of data compiled by government agencies and reports by non-governmental organisations and the media in order to assess whether particular groups are singled out for enhanced scrutiny.

As far as differences in treatment are identified, I then assess these for their conformity with the right to non-discrimination. Of particular importance in this context is the question of whether the relevant anti-terrorism measures, and (p.16) the differences in treatment they involve, can be deemed a proportionate means of achieving the aim of countering terrorism. This proportionality test involves analysis of issues such as the need for these measures, their effectiveness, their impacts on the affected individuals and groups, as well as their long-term consequences for the legitimacy of the criminal justice system.

1.2.5 An international law perspective

The adoption of a discrimination perspective to analyse national anti-terrorism measures does not necessarily entail the use of international human rights law as a yardstick. Instead, these measures could be judged against national guarantees of equality and non-discrimination, contained in constitutional law or other sources of domestic law. However, the following reasons support the choice of an international perspective.

First, terrorism is now commonly perceived to be an international threat and, consequently, the emerging system to counter it is increasingly globally uniform: a plethora of recently passed international and regional instruments oblige states to adopt specific measures to combat terrorism.87 This makes it all the more important to highlight that the new global anti-terrorism regime is matched by a global human rights regime. Under international law, states not only have an obligation to combat terrorism but also to respect a number of human rights standards, including the right to non-discrimination.88 Second, the three states considered here have ratified the most important human rights treaties relating to discrimination.89 Thus, it is possible to judge their respective anti-terrorism measures against one single standard of non-discrimination that applies to all of them.90 Third, obligations under international human rights law are becoming ever more influential. Even in the United States, where judicial authorities have traditionally been reluctant to take international legal developments into account, courts, including the Supreme Court, have recently increasingly referred to international human rights standards.91

However, just because this book adopts an international human rights law perspective does not mean that the national non-discrimination norms of the states (p.17) at issue and the jurisprudence of their courts are ignored. On the contrary, these national norms play an important role, as they profoundly influence the formation of relevant international law.92 Similarly, the jurisprudence of domestic courts feeds into the tests applied by regional and international bodies to assess conformity with the guarantee of non-discrimination.93 In fact, as Chapter 3 demonstrates, there is a significant overlap between the national and the international provisions and jurisprudence relating to non-discrimination. This convergence strengthens the authoritativeness of the international standards applied in this study.

1.3 Structure of the book

As should be clear from the preceding discussion, two subject matters are at the heart of this book: anti-terrorism measures (as the concrete consequences of the call for a rebalancing in favour of security) and the human right to non-discrimination (as a central aspect of liberty). I of the book (Chapters 2 and 3) is concerned with the conceptual underpinnings of these subject areas. Next, II (Chapters 4 and 5) analyses specific anti-terrorism measures that rely on distinctions based on citizenship status. These differences in treatment between citizens and foreign nationals are generally already made at the legislative level: they are part of the design of anti-terrorism laws. III (Chapters 6 and 7) deals with post-September 11 measures that involve distinctions according to country of origin or nationality, race, ethnicity, and religion. Differences in treatment on these grounds are normally not provided for by law but made at the level of law enforcement. The concluding chapter (Chapter 8) explores the impacts that discriminatory anti-terrorism measures may have on legal systems in general.

Before particular anti-terrorism measures of the states at issue are analysed, a closer look at the underlying concept of having special legal regimes to counter conduct defined as terrorism is necessary. Chapter 2 traces the creation of such regimes in the wake of September 11 and explores the policy rationales behind them. Do they fulfil particular practical needs or do they primarily serve a symbolic function? Next, the chapter critically examines the implications of the function of anti-terrorism regimes for the process of defining their scope. Is it possible (p.18) to define the term ‘terrorism’ in an objective way? What other factors do states use to define the scope of anti-terrorism measures? How have these factors been reshaped in the political climate after September 11?

Chapter 3 first sets out the sources of the right to non-discrimination in international, regional, and national law. It then analyses the different tests used by international human rights bodies and national courts to distinguish between permissible and impermissible differential treatment and develops, based on this jurisprudence, a common standard of non-discrimination that can be applied throughout this study to assess specific anti-terrorism measures of the three states at issue. Finally, the question of whether the existence of a terrorist threat may alter states' obligations under the right to non-discrimination is addressed. Does this right also apply during a declared state of emergency or an armed conflict?

Chapters 4 to 7 analyse the post-September 11 laws and law enforcement practices adopted by the United States, the United Kingdom, and Germany from the perspective of the right to non-discrimination.

As Chapter 4 explains, some of these laws include preventive detention powers that are only applicable to foreign terrorist suspects. The chapter examines the objective of these detention powers and assesses whether, in view of this objective, differential treatment based on citizenship status is justified. Is there a difference in terms of dangerousness between citizens and foreign nationals? What are the long-term consequences of detention powers that are reserved for foreign nationals?

Similar issues arise when states establish special tribunals to try terrorist suspects but limit the jurisdiction of these tribunals to foreign nationals. Chapter 5 explores whether such differential treatment based on citizenship status is compatible with the right to equality before the courts, one of the most important aspects of the right to non-discrimination. Is subjecting foreign, but not domestic, terrorist suspects to a special trial system a proportionate means of achieving the aim of countering terrorism?

Chapter 6 reveals that immigration policy has been increasingly turned into an anti-terrorism tool after September 11, with the relevant law enforcement efforts singling out citizens of a number of specified states. The chapter examines whether there are objective and reasonable grounds for making distinctions between different categories of foreign nationals according to their country of origin or nationality. Is there evidence for a possible connection between a person's nationality and his or her likelihood of being involved in terrorism? Is a person's nationality or national origin narrowly tailored enough to effectively target immigration law enforcement efforts?

Chapter 7 shows that the law enforcement agencies of all states examined are increasingly relying on so-called ‘terrorist profiles’ to select the targets of their vast array of preventive powers. The chapter explores whether profiling practices based on stereotypical generalisations that people of a certain ethnic or religious appearance, or a certain national origin, pose a greater terrorist risk than others (p.19) are a proportionate means to identify potential terrorists. How effective are such practices? What are their impacts on the targeted groups?

Chapter 8, the concluding chapter, is concerned with the wider impacts of anti-terrorism measures that involve distinctions according to criteria such as citizenship, nationality, race, national or ethnic origin, and religion. Are these powers and methods likely to remain limited to the context of the fight against terrorism? Or do they have a tendency to be applied beyond their original scope and to finally become part of, and thereby alter, ordinary legal regimes and law enforcement policies? (p.20)


(1) M Ignatieff, ‘Paying for Security with Liberty’, Financial Times, 13 September 2001.

(2) E Pianin and TB Edsall, ‘Civil Liberties Debate Revived Amid Efforts to Fight Terrorism’, Washington Post, 14 September 2001.

(3) In this book, the term ‘September 11’ is used as shorthand to refer to the attacks on New York and Washington, DC, of 11 September 2001. For a detailed account of the events of that day, see National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (2004), especially chs 1, 9, 10.

(4) AM Dershowitz, Why Terrorism Works (2002) 187.

(5) ibid 186. See also, for instance, RA Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (2006) 31.

(6) eg, S Bisanz and U Gerstenberg, ‘Neue Sicherheitsstrukturen als Antwort auf terroristische Anschläge’ in Hirschmann and Leggemann (eds), Der Kampf gegen den Terrorismus: Strategien und Handlungserfordernisse in Deutschland (2003) 319, 322–3.

(7) UK Presidency of the European Union, Liberty and Security: Striking the Right Balance, 7 September 2005, available at http://www.fco.gov.uk/Files/kfile/LibertySecurity.pdf.

(8) The terms ‘anti-terrorism’ and ‘counter-terrorism’ are used inconsistently, and often interchangeably, in the relevant literature. This book uses the term ‘anti-terrorism’ in the context of legal, including law enforcement, measures designed to deal with terrorism, whereas ‘counter-terrorism’ is mainly used in the context of wider political strategies and operations of military and special forces.

(9) S Marks and A Clapham, International Human Rights Lexicon (2005) 356. See also L Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32 Journal of Law and Society 507, 514; J Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 Journal of Political Philosophy 191, 200–4; R Dworkin, ‘The Threat to Patriotism’ in Calhoun, Price and Timmer (eds), Understanding September 11 (2002) 273, 281–2; D Luban, ‘Eight Fallacies about Liberty and Security’ in Wilson (ed), Human Rights in the ‘War on Terror’ (2005) 242, 243–5; PB Heymann, ‘Civil Liberties and Human Rights in the Aftermath of September 11’ (2002) 25 Harvard Journal of Law and Public Policy 441; W Hoffmann-Riem, ‘Freiheit und Sicherheit im Angesicht terroristischer Anschläge’ (2002) 35 Zeitschrift für Rechtspolitik 497, 498.

(10) The maxim was adopted by Jeremy Bentham to popularise his philosophy. His more precise definition of utility, formulated in 1789, reads as follows: ‘By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question.’ J Bentham, An Introduction to the Principles of Morals and Legislation (1970) ch 1, para 2.

(11) M Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (2004) ix.

(12) M Bagaric and J Clarke, ‘Not Enough Official Torture in the World? The Circumstances in which Torture is Morally Justifiable’ (2005) 39 University of San Francisco Law Review 581, 605–14; AM Dershowitz, ‘The Torture Warrant: A Response to Professor Strauss’ (2003) 48 New York Law School Law Review 275; EA Posner and A Vermeule, ‘Should Coercive Interrogation Be Legal?’ (2006) 104 Michigan Law Review 671.

(13) A notable exception is Paddy Hillyard's account of the treatment of the Irish community living in Britain or travelling between Britain and Northern Ireland under the British anti-terrorism regime. P Hillyard, Suspect Community: People's Experience of the Prevention of Terrorism Acts in Britain (1993).

(14) European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 4 November 1950, 213 UNTS 222.

(15) I Cameron, National Security and the European Convention on Human Rights (2000).

(16) D Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003). See also D Cole, ‘The New McCarthyism: Repeating History in the War on Terrorism’ (2003) 38 Harvard Civil Rights—Civil Liberties Law Review 1.

(17) M Welch, Scapegoats of September 11th: Hate Crimes & State Crimes in the War on Terror (2006).

(18) eg, SM Akram and KR Johnson, ‘“Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy”: Race, Civil Rights, and Immigration Law after September 11, 2001: The Targeting of Arabs and Muslims’ (2002) 58 New York University Annual Survey of American Law 295; L Cainkar, ‘Special Registration: A Fervor for Muslims’ (2002) 7 Journal of Islamic Law and Culture 73. For further literature, see Ch 6 below.

(19) eg, SR Gross and D Livingston, ‘Racial Profiling under Attack’ (2002) 102 Columbia Law Review 1413; SJ Ellmann, ‘Racial Profiling and Terrorism’ (2003) 22 New York Law School Journal of International & Comparative Law 305. For further literature, see Ch 7 below.

(20) A v Secretary of State for the Home Department [2004] UKHL 56. One of the few authors who had highlighted the issue of discrimination earlier was Rabinder Singh. R Singh, ‘Equality: The Neglected Virtue’ (2004) European Human Rights Law Review 141, 149–52.

(21) See the literature quoted below in Section

(22) eg, E Denninger, ‘Freiheit durch Sicherheit? Anmerkungen zum Terrorismusbekämpfungsgesetz’ (2002) 10–11 Aus Politik und Zeitgeschichte 22; T Gross, ‘Terrorbekämpfung und Grundrechte: Zur Operationalisierung des Verhältnismässigkeitsgrundsatzes’ (2002) 35 Kritische Justiz 1; O Lepsius, ‘Liberty, Security, and Terrorism: The Legal Position in Germany’ (2004) 5 German Law Journal 435; M Nolte, ‘Die Anti-Terror-Pakete im Lichte des Verfassungsrechts’ (2002) 117 Deutsches Verwaltungsblatt 573.

(23) D Bender, ‘“Verpolizeilichung” des Ausländerrechts? Die ausländerrechtlichen Massnahmen des Gesetzgebers nach dem 11. September 2001’ (2003) 36 Kritische Justiz 130.

(24) For a discussion of the importance of the right to equality and non-discrimination, see Section 3.1 below.

(25) It is now widely accepted that the notion that there are different human ‘races’ has no scientific basis in biology. See, eg, American Anthropological Association, American Anthropological Association Statement on ‘Race’, 17 May 1998. Instead, ‘racial’ categories are social constructs, produced through power-relations and social practices. American Sociological Association, Statement of the American Sociological Association on the Importance of Collecting Data and Doing Social Scientific Research on Race, 2003. It is to describe these socially constructed categories that I use the terms ‘race’ and ‘racial’.

(26) Just like ‘race’, ‘ethnicity’ is a social construct and membership of an ‘ethnic’ group can be contested. M Bulmer and J Solomos, ‘Introduction: Re-thinking Ethnic and Racial Studies’ (1998) 21 Ethnic and Racial Studies 819.

(27) See Section 3.2 below.

(28) EP Thompson, Whigs and Hunters: The Origin of the Black Act (1990) 258–69. On Thompson's conception of the rule of law, see MJ Horwitz, ‘The Rule of Law: An Unqualified Human Good?’ (1977) 86 Yale Law Journal 561; R Fine, ‘The Rule of Law and Muggletonian Marxism: The Perplexities of Edward Thompson’ (1994) 21 Journal of Law and Society 193; D Cole, ‘“An Unqualified Human Good”: EP Thompson and the Rule of Law’ (2001) 28 Journal of Law and Society 177.

(29) Thompson, n 28, 266.

(30) ibid 263–6.

(31) ibid 263.

(32) Cole, n 28, 184–9.

(33) Railway Express Agency, Inc. v New York 336 US 106, 112–13 (1949) (Jackson, J, concurring).

(34) Cruzan v Director, MDH 497 US 261, 300 (1990) (Scalia, J, concurring).

(35) S Smith, ‘The Contested Concept of Security’ in Booth (ed), Critical Security Studies and World Politics (2005) 27.

(36) The literature on security is vast. The introduction to B Buzan, People, States and Fear: An Agenda for International Security Studies in the Post-Cold War Era (1991) includes a good review of the works in the field.

(37) SM Walt, ‘The Renaissance of Security Studies’ (1991) 35 International Studies Quarterly 211.

(38) F Adamson and AD Grossman, Framing ‘Security’ in a Post-9/11 Context, Social Science Research Council (2004) 3.

(39) See, eg, KJ Holsti, The State, War, and the State of War (1996); Buzan, n 36, chs 1, 10.

(40) See United Nations Development Programme (UNDP), Human Development Report 1994: New Dimensions of Human Security (2004); Commission on Human Security, Human Security Now, 1 May 2003, available at "http://www.humansecurity-chs.org/finalreport/index.html". For academic work exploring the concept, see, eg, FO Hampson, Madness in the Multitude: Human Security and World Disorder (2001); R McRae and D Hubert (eds), Human Security and the New Diplomacy: Protecting People, Promoting Peace (2001); SN MacFarlane and YF Khong, Human Security and the UN: A Critical History (2006); S Tadjbakhsh and AM Chenoy, Human Security: Concepts and Implications (2007).

(41) For a short account of the rise of the concept of human security, see G Oberleitner, ‘Porcupines in Love: The Intricate Convergence of Human Rights and Human Security’ (2005) European Human Rights Law Review 588, 589–93.

(42) See Commission on Human Security, n 40, 10 (stating that ‘[r]especting human rights is at the core of protecting human security’). For a discussion of the relationship between human security and human rights, see Oberleitner, n 41; BG Ramcharan, Human Rights and Human Security (2002). The link between security and human rights had in fact already been stressed well before the emergence of the human security concept: the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, adopted in 1984 by a group of international human rights experts, state that ‘[t]he systematic violation of human rights undermines true national security.’ UN Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (1985), para 32.

(43) Lustgarten and Leigh made this point already before the rise of the human security concept. L Lustgarten and I Leigh, In from the Cold: National Security and Parliamentary Democracy (1994) 9. See also Cameron, n 15, 57.

(44) On judicial review of anti-terrorism measures, see Section 3.2.5 below.

(45) See Commission on Human Security, n 40, 4–6.

(46) ibid.

(47) The term ‘war on terror’ (or ‘war on terrorism’) was coined by the US government after September 11. For justifications of the concept, see, eg, US President Bush, ‘State of the Union Address’, 20 January 2004; White House Press Release, ‘Remarks by President Bush on the Global War on Terror’, 10 April 2006. Although other governments reject the term, it is now widely used by policy-makers, commentators, and the media all over the world to refer to various measures taken to counter terrorism.

(48) See Adamson and Grossman, n 38, 4.

(49) ‘Address before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11’ 37 Weekly Compilation of Presidential Documents 1347 (20 September 2001).

(50) Zedner, n 9, 516; Hoffmann-Riem, n 9, 499.

(51) Zedner, n 9, 516. See also C Sunstein, ‘Terrorism and Probability Neglect’ (2003) 26 Journal of Risk and Uncertainty 121; JH Marks, ‘9/11+3/11+7/7=? What Counts in Counterterrorism’ (2006) 37 Columbia Human Rights Law Review 559.

(52) U Beck, ‘The Terrorist Threat: World Risk Society Revisited’ (2002) 19 Theory, Culture & Society 39, 41.

(53) U Beck, Risk Society: Towards a New Modernity (1992). See also A Giddens, The Consequences of Modernity (1990); A Giddens, Modernity and Self-Identity (1991).

(54) See, eg, M Feeley and J Simon, ‘Actuarial Justice: The Emerging New Criminal Law’ in Nelken (ed), The Futures of Criminology (1994) 173; RV Ericson and KD Haggerty, Policing the Risk Society (1997); D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001), especially chs 5 and 7.

(55) R Dworkin, Taking Rights Seriously (1977) 198.

(56) UN Office of the High Commissioner for Human Rights, Digest of Jurisprudence of the UN and Regional Organizations on the Protection of Human Rights While Countering Terrorism, September 2003, 3.

(57) See Section 3.3.1 below.

(58) eg, International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, 999 UNTS 171, Arts 19(3), 21, 22(2).

(59) For a detailed discussion of the principle of proportionality, see Section 3.2.4 below.

(60) Waldron, n 9, 208–10.

(61) Dershowitz (2002), n 4, 137; Bagaric and Clarke, n 12, 588–9.

(62) PNS Rumney, ‘Is Coercive Interrogation of Terrorist Suspects Effective? A Response to Bagaric and Clarke’ (2006) 40 University of San Francisco Law Review 479.

(63) Marks and Clapham, n 9, 357.

(64) See Section 2.1 below.

(65) For example, prior to September 11 it would probably have been unthinkable that the US government would—as it did in 2002—officially sanction coercive interrogation techniques amounting to inhuman treatment. Human Rights Watch, The Road to Abu Ghraib, June 2004.

(66) P Wilkinson, ‘Why Modern Terrorism? Differentiating Types and Distinguishing Ideological Motivations’ in Kegley (ed), The New Global Terrorism: Characteristics, Causes, Controls (2003) 106, 106 (original emphases).

(67) CW Kegley, ‘The Characteristics, Causes, and Controls of the New Global Terrorism: An Introduction’, ibid 1, 8.

(68) ibid 9.

(69) For these measures, see, eg, G Hogan and C Walker, Political Violence and the Law in Ireland (1989); DPJ Walsh, The Use and Abuse of Emergency Legislation in Northern Ireland (1983).

(70) D Beetham, ‘Liberal Democracy and the Limits of Democratization’ in Held (ed), Prospects for Democracy: North, South, East, West (1993) 55, 56–7; T Ball and R Dagger, Political Ideologies and the Democratic Ideal (2002) 39. The literature on the subject of democracy is vast. For particularly revealing accounts of the roots of this ideal, see D Held, Models of Democracy (1996); J Dunn (ed), Democracy: The Unfinished Journey: 508 BC to AD 1993 (1992).

(71) ‘Terrorism Bill to be Reviewed’, East African Standard, 3 July 2003.

(72) P Haven, ‘Pakistan Touts New Anti-terror Law’, Associated Press, 22 October 2002.

(73) See Section 2.1.3 below.

(74) ‘Responding to Terrorism: Crime, Punishment, and War’ (2002) 115 Harvard Law Review 1217.

(75) Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001/3644.

(76) Anti-terrorism, Crime and Security Act (ATCSA) 2001, Prevention of Terrorism Act 2005, and Terrorism Act 2006. See Section 2.1.3 below.

(77) N Watt, ‘Brown Sets out Plan for Tough New Terror Laws’, Observer, 3 June 2007.

(78) See Section 6.1 below.

(79) See, eg, Human Rights Watch, Setting an Example? Counter-terrorism Measures in Spain, January 2005; AD MacKinnon, ‘Counterterrorism and Checks and Balances: The Spanish and American Examples’ (2007) 82 New York University Law Review 602.

(80) See, eg, D Monjardet, ‘Le Terrorisme international et la cage d'escalier: la sécurité publique dans le débat politique en France, 2000–2003’ (2004) 19 Canadian Journal of Law and Society 135–51; D Bigo, ‘L’Impact des mesures anti-terroristes sur l'équilibre entre liberté et sécurité et sur la cohésion sociale en France' in Bribosia and Weyembergh (eds), Lutte contre le terrorisme et droits fondamentaux (2002) 219; J Laurence and J Vaisse, Integrating Islam: Political and Religious Challenges in Contemporary France (2006), ch 10; D Haubrich, ‘September 11, Anti-terror Laws and Civil Liberties: Britain, France and Germany Compared’ 38 (2003) Government and Opposition 3; Human Rights Watch, In the Name of Prevention: Insufficient Safeguards in National Security Removals, June 2007.

(81) See Section 2.1.3 below.

(82) See Section below.

(83) S Aust, Der Baader-Meinhof-Komplex (1998); U Demes, Die Binnenstruktur der RAF: Divergenz zwischen postulierter und tatsächlicher Gruppenrealität (1994); W Kraushaar, Die RAF und der linke Terrorismus (2006).

(84) US Census Bureau, US Census 2000, ‘Profile of General Demographic Characteristics’, available at http://censtats.census.gov/data/US/01000.pdf. Data on religion are not collected in the US census.

(85) Office for National Statistics, Census, April 2001, available at "http://www.statistics.gov.uk/census/default.asp.

(86) Statistisches Bundesamt Deutschland, Bevölkerung nach Geschlecht und Staatsangehörigkeit 2004, available at http://www.destatis.de/jetspeed/portal/cms/Sites/destatis/Internet/DE/Navigation/Statistiken/Bevoelkerung/Bevoelkerung.psml; P Stalker, A-Z of Countries of the World (2004).

(87) See Sections 2.1.1 and 2.1.2 below.

(88) See Section 3.1.2 below.

(89) ibid.

(90) Section 3.2 below develops this general standard of non-discrimination.

(91) See Lawrence v Texas 539 US 558 (2003) (referring extensively to the case law of the European Court of Human Rights on the right to respect for private life); Atkins v Virginia 536 US 304 (2002) (taking account of the overwhelming international consensus against imposing the death penalty on mentally retarded persons); Roper v Simmons 543 US 551 (2005) (acknowledging the overwhelming weight of international opinion against the juvenile death penalty and referring to the UN Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the African Charter on the Rights and Welfare of the Child).

(92) In fact, the very term ‘discrimination’ as used in international law derives from the Anglo-American legal system, whilst not originally being part of, for example, French legal terminology. M Bossuyt, L'Interdiction de la discrimination dans le droit international des droits de l'homme (1976).

(93) See, eg, W McKean, Equality and Discrimination under International Law (1983) 228, 237 (explaining the international in. uence of the US Supreme Court's jurisprudence interpreting the Equal Protection Clause); AW Heringa, ‘Standards of Review for Discrimination’ in Loenen and Rodrigues (eds), Non-discrimination Law: Comparative Perspectives (1999) 25 (demonstrating converging trends in the jurisprudence of national and international courts on standards of review).