Fresh Perspectives on the ‘War on Terror’ Fresh Perspectives on the ‘War on Terror’ Miriam Gani Penelope Mathew (editors) Published by ANU E Press The Australian National University Canberra ACT 0200, Australia Email: [email protected] This title is also available online at: http://epress.anu.edu.au/war_terror_citation.html National Library of Australia Cataloguing-in-Publication entry Title: Fresh perspectives on the war on terror / editors Miriam Gani, Penelope Mathew. ISBN: 9781921313738 (pbk.) 9781921313745 (web) Subjects: Terrorism. War on Terrorism, 2001- National security--Law and legislation. Islam and world politics. Other Authors/Contributors: Gani, Miriam. Mathew, Penelope. Dewey Number: 363.325 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design by Teresa Prowse Cover image: “Eye of the Storm” by Sven Geier. Available from http://www.sgeier.net/fractals/ fractals/02/Eye%20of%20the%20Storm.jpg Printed by University Printing Services, ANU This edition © 2008 ANU E Press Table of Contents Acknowledgements vii Contributors ix Table of Cases xi Table of Statutes xv Table of International Instruments xix Chapter 1. Introduction: Letters from the Front 1 Miriam Gani and Penelope Mathew Part One – Identifying the Threat and Choosing the Weapons Chapter 2. Islam and the Politics of Terrorism: Aspects of the British Experience 9 John Strawson Chapter 3. Another Modest Proposal: In Defence of the Prohibition against Torture 27 Desmond Manderson Chapter 4. Protecting Constitutionalism in Treacherous Times: Why ‘Rights’ Don’t Matter 45 W Wesley Pue Part Two – Preparing the Ground: Balance, Proportionality, and Public Perceptions Chapter 5. Balancing Security and Liberty: Critical Perspectives on Terrorism Law Reform 65 Simon Bronitt Chapter 6. Lay Perceptions of Terrorist Acts and Counter-Terrorism Responses: Role of Motive, Offence Construal, Siege Mentality and Human Rights 85 Mark Nolan Chapter 7. The Proportionality Principle in the Context of Anti-Terrorism Laws: An Inquiry into the Boundaries between Human Rights Law and Public Policy 109 Christopher Michaelsen Part Three – Rules of Engagement: Beyond the Limits of the Law Chapter 8. More Law or Less Law? The Resilience of Human Rights Law and Institutions in the ‘War on Terror’ 127 Andrew Byrnes v Fresh Perspectives on the ‘War on Terror’ Chapter 9. Black Holes, White Holes and Worm Holes: Pre-emptive Detention in the ‘War on Terror’ 159 Penelope Mathew Chapter 10. Forgiving Terrorism: Trading Justice for Peace, or Imperiling the Peace? 189 Ben Saul Part Four – Reports from Two Theatres of War: Legislation, Sanctions and Prosecutions in Europe and Australia Chapter 11. The European Union as a Collective Actor in the Fight against Post-9/11 Terrorism: Progress and Problems of a Primarily Cooperative Approach 209 Jörg Monar Chapter 12. The European Union, Counter-Terrorism Sanctions against Individuals and Human Rights Protection 235 Gabriele Porretto Chapter 13. How Does it End? Reflections on Completed Prosecutions under Australia’s Anti-Terrorism Legislation 269 Miriam Gani Chapter 14. Executive Proscription of Terrorist Organisations in Australia: Exploring the Shifting Border between Crime and Politics 297 Russell Hogg Part Five – Calling a Halt: The Role of Bills of Rights Chapter 15. Strapped to the Mast: The Siren Song of Dreadful Necessity, the United Kingdom Human Rights Act and the Terrorist Threat 327 Colm O’Cinneide Chapter 16. The ACT Human Rights Act 2004 and the Commonwealth Anti-Terrorism Act (No 2) 2005: A Triumph for Federalism or a Federal Triumph? 361 Andrew Byrnes and Gabrielle McKinnon Bibliography 379 Acronyms and Abbreviations 413 Index 415 vi Acknowledgements The editors would like to acknowledge the following people and organisations for their important contributions to this book. The Australian Research Council awarded a substantial grant that funded the work of a number of the authors in this book.1 We thank our fellow Chief Investigators under this grant, Simon Bronitt, Andrew Byrnes, Russell Hogg and Mark Nolan and our Research Associate, Gabriele Porretto, for their collegiality, lateral thinking and hard work in helping us bring this part of our larger project to fruition. The Australian Academy of Social Sciences also provided a smaller grant that assisted in the holding of an expert workshop that led to this volume. Thanks are also due to the ANU College of Law for supporting the research effort of the six researchers funded by the ARC grant, particularly the ANU E Press Editorial Board, Margaret Thornton, Stephen Bottomley, Matthew Rimmer and Fiona Wheeler, and other colleagues at the ANU, including Gregor Urbas, Hilary Charlesworth, and Peter Grabosky. Most importantly, we thank Jennifer Braid for the final editorial work on the manuscript. Jenny's tireless work, endless patience and good sense and humour were the essential ingredients for completion of the manuscript. We are grateful to our Dean, Michael Coper, for ensuring that Jenny could do this work. We would also like to thank two former students at the ANU College of Law, David Easteal and Jessica Giovanelli, for their assistance with the preparation of the manuscript. Finally, we thank our partners and children for graciously enduring countless working morning teas and dinners at our homes and other vicissitudes associated with the book. Thank you, Shaun, Isabelle, Luke, Don and Tom. Miriam Gani and Penelope Mathew The Australian National University Canberra 1 `Terrorism and the Non-State Actor After September 11: the Role of Law in the Search for Security', ARC Discovery Project DP0451473. vii Contributors Professor Simon Bronitt Professor of Law, ANU College of Law and Director of the National Europe Centre, The Australian National University, Canberra, Australia. Professor Andrew Byrnes Professor of International Law, Faculty of Law and Australian Human Rights Centre, The University of New South Wales, Sydney, Australia. Miriam Gani Senior Lecturer in Law, ANU College of Law, The Australian National University, Canberra, Australia. Russell Hogg Associate Professor of Law, School of Law, University of New England, Armidale, NSW, Australia. Gabrielle McKinnon Research Associate, Regulatory Institutions Network, Centre for International Governance and Justice, The Australian National University, Canberra, Australia. Professor Desmond Manderson Canada Research Chair in Law and Discourse, Faculty of Law, McGill University, Montreal, Canada. Dr Penelope Mathew Reader in Law, ANU College of Law, The Australian National University, Canberra, Australia. From August 2008, Visiting Professor and Interim Director, Program in Refugee and Asylum Law, University of Michigan. Christopher Michaelsen Visiting Fellow, Faculty of Law, University of New South Wales, Sydney, Australia. Formerly Human Rights Officer (Anti-Terrorism), The Organization for Security and Co-operation in Europe (OSCE), Office for Democratic Institutions and Human Rights (ODIHR), Warsaw, Poland. Professor Jörg Monar Professor, Marie Curie Chair of Excellence, Université Robert Schuman de Strasbourg, Strasbourg, France and Director of the European Union-funded SECURINT project on EU internal security governance. ix Fresh Perspectives on the ‘War on Terror’ Dr Mark Nolan Senior Lecturer in Law, ANU College of Law, The Australian National University, Canberra, Australia. Colm O’Cinneide Senior Lecturer in Law, Faculty of Laws, University College London, London, United Kingdom. Dr Gabriele Porretto Formerly Research Associate and Sparke Helmore Lecturer, ANU College of Law, The Australian National University, Canberra, Australia. Professor W Wesley Pue Nathan Nemetz Chair in Legal History, Faculty of Law, University of British Columbia, Vancouver, Canada. Currently serving as Vice-Provost and Associate Vice-President Academic Resources, University of British Columbia, Vancouver, Canada. Dr Ben Saul Senior Lecturer and Director of the Sydney Centre for International Law, Faculty of Law, University of Sydney, Australia. John Strawson Reader in Law, School of Law, University of East London, London, United Kingdom. x Table of Cases A and Others v Secretary of State for the Home Case C-354/04 P, Gestoras pro Amnestia [2007] Department, X and another v Secretary of ECR I-1579: 229 State for the Home Department [2005] 2 AC Case C-355/04 P, Segi [2007] ECR I-1657: 229 68 (Belmarsh Detainees): 110, 111, 119, 120, Case Concerning Armed Activities on the 121, 122, 123, 124, 173, 174, 175, 334, 335, Territory of the Congo (Democratic Republic 336, 339, 347, 352, 353, 357, 358, 359, 360 of the Congo v Uganda) ICJ Judgment of 19 A v Australia, UN Doc. CCPR/C/59/D/560/1993: December 2005: 145 181 Case T-228/02, Modjahedines [2006] ECR II- A v Secretary of State for the Home Department 4665: 228, 229, 230 (No 2) [2005] UKHL 71; [2005] All ER (D) Castillo Páez (Reparations) Case (27 November 124 (Dec); [2006] 1 All ER 575: 343 1998) Ser C, No 43: 192, 197 Abdul Jaber al-Kubaisi v Iraq and United Chahal v UK (1997) 23 EHRR 413: 334, 336, 339, States of America, Opinion No 44/2005, 30 343, 344, 359 November 2005, A/HRC/4/40/Add 1: 145, 146 Chahal v United Kingdom (1996) 23 ECR 1996-V 1831: 265, 266 Abu Qatada v SSHD SC/15/2005, 26 February 2007: 336, 344, 355 Charkaoui v Canada (Citizenship and Immigration) [2007] SCC 9: 52 Aksoy v Turkey