10th International Judicial Conference in Strasbourg from 23 to 24 May 

Balancing Necessity and Human Rights in Response to Terrorism

By Francis Murphy
Justice of the Supreme Court of Ireland
(Original text in English)

I Introduction:
We have all suffered moments of vicarious terror and rage over the past few years as we watched news accounts of terrorist incidents, such as the downing of Pan Am Flight 103 over Lockerbie, Scotland in December 1988, and the Irish Republican Army’s bombing campaign in Northern Ireland, the Omagh bombing on the 15th of August, 1998 being their latest and perhaps most tragic. Indeed, the shocking attacks of the 11th of September 2001 remain all too vivid in our minds. It is in times of greatest strain that legal boundaries are most important and the implications for human rights in response to terroristic acts are potentially grave in both present and future situations. And because of the international nature much terrorist activity, international co-operation among states is essential for its suppression, as it is with any other transnational and international crime. Indeed, the United Nations General Assembly Resolution, entitled ‘Human Rights & Terrorism’, adopted on the 22nd December 1995 ¹, in recognizing the gross violations of human rights perpetrated by terrorist groups upon innocent people in indiscriminate acts of violence and terror, called upon states to enhance co-operation at regional and international levels in the fight against terrorism in accordance with relevant human rights instruments with the aim of its eradication. This was recently repeated by the General Assembly on the 19th December 2001.²
Human rights law is a major feature of contemporary international law, and the necessity of international co-operation in the fight against terrorism is not immune from the impact of this branch of the law. Thus, the recognition of human rights constraints upon the freedom of states to co-operate in matters relating to the extradition of (suspected) terrorists is an important development. There is, however, an inevitable tension between the demand for more effective international co-operation in the fight against terrorism and the demand that human rights are respected. It is necessary to find the proper balance between human rights of the terrorist, or the person suspected of terrorist offences, and the interests of states in the suppression of terrorism.

II Human Rights Constraints to the Extradition of (Suspected) Terrorists:

Extradition law has, for centuries, expressed a clear concern for the protection of the human rights of the requested person. The exception from extradition, the political offence, is built on a triple rationale: firstly, the political argument that states should remain neutral vis-a-vis the internal political affairs of other states. Secondly, the moral argument provides that resistance to oppression is legitimate and that, therefore, political crimes can be justified. Thirdly the humanitarian argument provides that a political offender should not be extradited to a state in which he risks an unfair trial. The first and second of these reasons were dealt with in papers which were read last year in Budapest.

The Terrorist Loophole: Restricting The Political Offence:
In order to cope with the problem of inter-state co-operation for terroristic offences, recent anti-terrorist conventions were determined to attempt to overcome the political offence loophole, and now restrict or even exclude the applicability of this exception as far as terroristic offences are concerned. The European Convention on the Suppression of Terrorism, 1977 ³ in Article 1, actually spells out, that, for the purposes of extradition between contracting states, certain offences would not be regarded as ‘political’, including kidnapping, attacks on diplomats, hijacking, hostage-taking, and endangering life by the use of bombs or automatic guns.⁴ Also, the UN Terrorist Bombing Convention, 1998 ⁵ provides, in Article 11, that none of the offences set forth therein shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offence.

The problem with such anti-terrorist conventions that introduce per se exemptions to the political offence exception, is that they deprive the offender of the protection he otherwise has. The inherent seriousness of terroristic offences on its own is, not a sufficient argument to strip him of this protection. Those accused of most heinous crimes are entitled to certain fundamental human rights.

Thus, the question arises as to what kind of protection the (suspected) terrorist should have in extradition proceedings against being returned to a state in which he risks violation of his human rights. Clearly, not every violation of every human rights in the various human rights instruments will be recognised by a national court or indeed by the European Court at Strasbourg as a bar to extradition, whatever the nature of the offence. So, then, which violations of which human rights of (suspected) terrorists may obstruct their extradition?

The European Convention of Human Rights and the obstruction of international co-operation among states in the suppression of terrorism:
Certainly, violations of some of the fundamental rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950,⁶ may obstruct states in their co-operation with each other in the suppression of terrorism. This Convention is the foundation stone of modern human rights protection in Europe.

Ireland is proud to have been among the original drafters and co-signatories of the Convention and further was one of the first States to ratify it.⁷ Ireland is, unfortunately, the last remaining EU member-state to so incorporate the Convention into its domestic law.⁸ There is, however, a very high degree of overlap between the Irish Constitution’s guarantees in the area of fundamental rights (as judicially interpreted), and the provisions of the Convention (as every substantive right afforded by the Convention is either expressly protected by the Irish Constitution, or has already been recognized as an unenumerated right by the Irish Supreme Court under Article 40.3.1) Insofar as the constitutional and legal position of the Convention is concerned at present, this may be explained by the statement that it has already been law for Ireland since 1953 on the international plane, as it forms part of Ireland's obligations in the area of public international law. The decisions of the Court of Human Rights in Strasbourg in relation to any breaches of the Convention's provisions by Ireland are binding, but under the Irish constitutional scheme of things, it is the prerogative of the Irish Government to decide precisely how any incompatible provision of national law or administrative practice may be reconciled with a ruling by the Court. More simply put, this means that the Convention is currently law for Ireland, but not actually law in Ireland. However, legislation entitled the European Convention on Human Rights Bill, 2001 is currently passing through the Irish legislative process to effect incorporation domestically making rights under the Convention enforceable in Irish courts. This means that cases of this type will be able to be processed much more expeditiously than under the present arrangements at Strasbourg and will ensure that there are two complementary systems in place in Ireland for the protection of fundamental rights and freedoms, with the superior rules under the Irish Constitution taking precedence, in accordance with the State's dualist doctrine on the giving of effect to international obligations and the primary role of the Oireachtas in that regard.

The Prohibition Against Torture, Inhuman or Degrading Treatment or Punishment:

The absolute ban on torture and inhuman or degrading treatment or punishment appears in the texts of various international instruments⁹ and is contained in Article 3 of the European Convention on Human Rights. This absolute ban is non-derogable¹⁰.

The Death Penalty & the ‘Death-Row Phenomenon’:
To date, there does not appear to have been a successful challenge to extradition simply on the ground that imposing or carrying out the death penalty would violate the human rights of the requested person, the (suspected) terrorist. In Soering v United Kingdom ¹¹ the European Court of Human Rights held that the death penalty as such did not violate the right to life enshrined in Article 2 or the prohibition against torture, inhuman or degrading treatment or punishment enshrined in Article 3. A similar position was reached by the United Nations Human Rights Committee in the case of Kindler v Canada.¹² However, states which have ratified either of the Protocols attached to the European Convention or the International Covenant, which explicitly abolishes the death penalty, can refuse to extradite a (suspected) terrorist to a country which might impose the death penalty.

However, while accepting that the prohibition on inhuman treatment or punishment cannot be interpreted as generally prohibiting the death penalty, the European Human Rights Court at Strasbourg and the Human Rights Committee of the UN, have both accepted that the circumstances surrounding the imposition of the penalty may give rise to a question of inhuman treatment or punishment. In Soering, the Court based its findings on the ‘death-row phenomenon’ as a human-rights bar to extradition, rather than on the death penalty itself. Soering was wanted for murder in Virginia, and the United States requested his extradition from the United Kingdom. The Court held that because of the very long time Soering was likely to spend on death row in Virginia, in harsh conditions, with mounting anguish of awaiting death, the UK was required by Article 3 of the European Convention not to extradite him to the US where there was “a real risk” of such inhuman or degrading treatment being inflicted upon him.¹³
(ii) No ‘Balancing of Interests’ as the Prohibition is Absolute:
Because the prohibition against torture, inhuman or degrading treatment or punishment is absolute, balancing ‘interests’ between those of the community of nations in suppression of terrorism, and those of the requested person and his human rights, may not occur. Indeed, in Chahal v United Kingdom ¹⁴ the European Court held that there is no room for balancing interests where torture is in issue. In this case, the Court was faced with an applicant who was still in the United Kingdom but who was under imminent threat of deportation to India. The applicant was a well known advocate Sikh separatism, and was due to be deported because his continued presence in the United Kingdom was, it was argued, unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism. The Court, in a strong judgment on Article 3, stressed, at paragraph 79, that that Article enshrines one of the most fundamental values of democratic society and went on to provide that:

“ the Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention... Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation... [T]he activities of the individual in question, however undesirable or dangerous, cannot be a material consideration... It follows from the above that it is not necessary for the Court to enter into a consideration of the Government's untested, but no doubt bona fide, allegations about the first applicant's terrorist activities and the threat posed by him to national security.”¹⁵

Thus, because of the prohibition against torture, inhuman or degrading treatment or punishment is absolute, balancing ‘interests’ between those of the community of nations in suppression of terrorism, and those of the requested (suspected) terrorist and his human rights, may not occur. A contrary view would amount to accepting that the end (suppression of terrorism by means of extradition) justifies the means (torture), which would run counter to the letter and spirit of international human rights instruments¹⁶

However, although all states probably agree that inhuman or degrading treatment or punishment is absolutely prohibited and accept that a requested state may not extradite a (suspected) terrorist to a state where he/she is likely to be tortured or treated inhumanely or degradingly, they do not agree on what constitutes inhuman or degrading treatment. States may use a proportionality test when settling the threshold for the application of the rule. This means that the ‘inhuman or degrading treatment or punishment’ exception to the extradition of terrorists will be differently interpreted from state to state, and that the requesting state will have to accept the threshold of the requested state.

(iii) The Threshold:
The definition of the threshold of the prohibited acts covered in Article 3 will, thus, be subjective. In Ireland v United Kingdom ¹⁷, the Strasbourg Court determined that the special interrogation methods inflicted upon suspected IRA members during the “troubles” in Northern Ireland in the early 1970s, known as ‘the Five Techniques’- which included hooding, wall-standing, deprivation of sleep, reduction of diet, and high-pitched noises - were practices that were inhuman and degrading treatment. The Court stated that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 [of the Convention]”.¹⁸ It emphasised that the “assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, it physical and mental effects, and, in some cases, the sex, age and state of health of the victim, etc.”¹⁹

Therefore, it would seem that decision-makers have a relatively wide margin of discretion in analysing whether the ban on inhuman or degrading treatment was indeed violated. An element of subjectivity is unavoidable and special personal circumstances might need to be present. Indeed, in Soering such special personal circumstances were present as Soering was only 18 years old at the time of the commission of the crime, and a psychiatric report claimed that he was mentally disturbed at the moment of the crime.²⁰

(iv) The Method of Execution: A Limit on Extradition?
The Human Rights Committee, in Ng v Canada ²¹ held that California’s practice of executing by gas asphysiation, which may take over ten minutes to cause death, resulted in prolonged suffering, constituting cruel and inhuman treatment within the meaning of Article 7 of the International Covenant, and that Canada had thus failed to comply with its obligations under that Covenant, by extraditing Ng to the US, as it should have reasonably foreseen that he would be executed in this way. The Committee held that the execution of a capital punishment sentence “must be carried out in such a way as to cause the least possible physical and mental suffering”²². Does this mean that other forms of execution may fail to satisfy this requirement also? For instance, hanging, electrocution and firing squads may occasionally fail to achieve the desired result with considerable suffering.

Thus, in the extradition proceedings of a (suspected) terrorist, the requested state will be in violation of its human rights obligations if it extradites him/her to a state where a capital offence awaits if, death row or the method of execution, depending on subjective criteria, constitutes inhuman or degrading treatment or punishment. Also, the requested state may be justified in refusing extradition if the requesting state is known to practice harsh and intimidatory methods of pre-trial interrogation, as such practice, again, may constitute inhuman or degrading treatment or punishment, or in very extreme cases, torture.

Do Terrorists have a Right to a Fair Trial?
Unlike protection against torture and inhuman or degrading treatment or punishment, protection against an unfair trial cannot be said to be a peremptory rule of international law. However, it is a fundamental rule from which no departure is allowed in normal circumstances. Thus, although Article 6 of the European Convention provides for the right to a fair trial, this right may only be derogated from “in times of war and other public emergencies threatening the life of the nation…to the extent strictly required by the exigencies of the situation”(Article 15).

Besides human rights instruments, anti-terrorism conventions also provide for the right of the (suspected) terrorist to a fair trial, for example Article 8(2) of the 1979 Hostages Convention and Article 14 of the UN Terrorist Bombing Convention of 1998.

What protection, then, should a (suspected) terrorist have in extradition proceedings against being returned to a state in which he/she risks being subjected to an unfair trial?

Which Violations Of Which Fair Trial Rights May Obstruct Extradition?

In Barbera, Messegue & Jabardo v Spain²³ the European Court of Human Rights held that because the right to be tried by a proper court of law and the right to a fair trial are among the most important of the civil and political rights, these rights hold such a prominent place in a democratic society that they cannot be sacrificed to expediency, not even in the case of very serious crimes, such as terrorism.

It is necessary to determine what infringements of the (suspected) terrorist’s fair-trial rights in the requesting state can be an obstacle to extradition. Clearly, not any violation of his/her fair-trial rights will suffice to engage the responsibility of the requested state. Indeed in Soering the Court stated that, although the law of the State of Virginia did not provide for the free assistance of a lawyer in the procedures available to avoid the execution of the death penalty, there was no infringement of Article 6. It did not exclude “that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country”.²⁴

Thus, it would seem that only a flagrant denial of a fair trial would block extradition. This sets a relatively high threshold for the application of Article 6 as an obstacle to extradition because applying fair-trial rights in extradition proceedings has a quite different impact from applying those rights in domestic criminal proceedings. Infringements of fair-trial rights in domestic proceedings will very rarely result in the acquittal of the alleged offender. Usually, they will give him a right to compensation, or have some impact on the sentence. In extradition proceedings, on the other hand, the result will usually be that the offender goes unpunished, as it is still relatively rare, as a rule, for states to prosecute persons whose extradition has been denied.²⁵

That only a flagrant denial of fair trial rights may result in obstructing extradition was again illustrated by the Strasbourg Court in 1992 in Drozd & Janousek v France & Spain.²⁶ Here, it was acknowledged that Article 6 could “thwart the current trend towards strengthening international co-operation in the administration of justice…The Contracting States are, however, obliged to refuse their co-operation if it emerges that the conviction is the result of a flagrant denial of justice”.²⁷

This threshold, thus, begs the question of which aspect of the right to a fair trial must be denied before it can be said that there has been a ‘flagrant’ denial of this right. The Strasbourg Court, for instance, has held in Murray v United Kingdom in 1996 ²⁸, that, in line with generally recognised international standards, Article 6(1) implies a privilege against self-incrimination. Would the denial of this privilege amount to a ‘flagrant’ breach of fair-trial rights? In X v United Kingdom ²⁹, the Commission observed that “the use at a trial of evidence obtained from an accomplice by granting him immunity from prosecution may put in question the fairness of the hearing granted to an accused person and thus raise an issue under Article 6(1) of the Convention”.³⁰

Suspected terrorists, therefore, have a right to a fair trial and a requested state should refuse extradition where he/she will suffer a flagrant denial of those rights in the requesting state.

The Right to Personal Liberty:
It is a usual consequence of extradition proceedings that the requested person is deprived of his/her liberty for the purposes of extradition. This is one of the ‘permissible’ cases of deprivation of liberty under Article 5 of the European Convention of Human Rights, provided that there is a legal basis for the detention. Persons who have been deprived of their liberty have certain minimum procedural rights under Article 5, including the right to be confined for the purpose of deploying proceedings against him/her, and that such a trial take place within a reasonable time.

(i) Lawless v. Ireland, 1961:
In Lawless v Ireland ³¹, the first decision ever rendered by the European Court of Human Rights, Mr Lawless had been interned without trial in the Republic of Ireland from July to December 1957 for allegedly acting on behalf of the Irish Republican Army. He unsuccessfully attempted to seek habeas corpus in the Irish High Court and Supreme Court.³² The Strasbourg Court unanimously held that the detention was lawful: although it was in contravention of Articles 5(1)(c) and 5(3) of the Convention.³³ The Republic’s derogation notice issued pursuant to Article 15 was a valid excuse for the breach. The Court measured the derogation notice against the requirements of Article 15 and decided (a) that there was a “public emergency threatening the life of the nation”, (b) that the measures taken were “strictly required by the exigencies of the situation”, and (c) that there was nothing to show that the measures were “inconsistent with [Ireland’s] other obligations under international law”.

(ii) Ireland v United Kingdom, 1978:
In Ireland v United Kingdom ³⁴, it was held that internment without trial is incompatible with Article 5. However the European Court admitted that there was a situation of emergency in Northern Ireland, and, accordingly, internment could be justified pursuant to Article 15. The Court admitted the need to accord the state which, based on Article 15, derogates its obligations under the Convention, a ‘wide margin of appreciation’ in relation both to whether an emergency exists and to what measures were necessary to overcome it.

(iii) The Brogan Case, 1988:
Similarly, in Brogan & Others v United Kingdom³⁵, the Strasbourg Court ruled that the seven day detention power conferred on the police by section 12 of the UK’s Prevention of Terrorism Act of 1984, violated Article 5. The Court upheld the claims of four Northern Irish men, who were held for more than four days on suspicion of involvement in terrorist incidents and then released without charge, that their treatment violated the Convention. Article 5(3) demands that anyone arrested on suspicion of having committed an offence has the right to be brought promptly before a judge. The Court said that “promptness” in this Article was to be assessed in each case according to its special features, but that the significance attached to those features could never be taken to the point of impairing the very essence of the right guaranteed. Further, “the undoubted fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of Article 5(3)”³⁶

However, this verdict against the British government over the legality of the seven-day detention power under the Prevention of Terrorism Act, 1984 was not complied with. It announced that, rather than introduce new judicial procedures for checking on the lawfulness of detentions, it would instead enter a derogation notice under Article 15. It is important to note that states that enter derogations to Article 5 or 6 might lead them to water down human rights protection while being able to claim they continue to give effect to the Convention.

This derogation notice was considered by the Commission, and then by the Court of Human Rights, in Brannigan and McBride v United Kingdom.³⁷ The Commission examined the statistics on terrorist activity in Northern Ireland and concluded, contrary to the applicants’ argument, that the measures taken under the derogation notice were “strictly required by the extigencies of the situation” and “were not inconsistent with [the United Kingdom’s] other obligations under international law”. The Court, by 22 votes to four, decided likewise.³⁸ The Court held that the United Kingdom had not stepped beyond the margin of appreciation which Strasbourg was prepared to allow to each state when deciding what steps to take to combat terrorism:

“By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities.” ³⁹

(iv) The Impact These Cases Could Have On The Extradition of (Suspected) Terrorists:
It follows that a requested state could, arguably, block the extradition of a (suspected) terrorist where the requesting state is well known for inflicting long periods of pre-trial incommunicado detention on (suspected) terrorists or any other alleged criminal for that matter.

The Prohibition Against Discriminatory treatment:
As the political offence exception has been gradually restricted, other exceptions have grown from the same base, which to some extent are replacing the old political offence exception. For instance, the prohibition against discriminatory treatment was first recognised for the purposes of extradition in Article 3(2) of the European Convention on Extradition, 1957.⁴⁰ This provision states that a person shall not be extradited if the requested state

“…has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, or political opinion, or that that person’s position may be prejudiced for any of these reasons.”⁴¹

A similar prohibition against discriminatory treatment is found in Article 9 of the 1979 Hostages Convention, Article 5 of the 1977 European Convention on the Suppression of Terrorism, and Article 12 of the 1998 UN Terrorist Bombing Convention. Further, such a non-discrimination clause is also included in many bilateral extradition treaties.

In one sense, this clause contemplates the granting of asylum to persecuted individuals; however, a state which denies an extradition request of an (suspected) terrorist pursuant to this provision must still submit the case to its appropriate authorities for the purpose of prosecution pursuant the obligation to extradite or prosecute as contained in all of the anti-terrorism conventions.

Such non-discrimination clauses, as contained in extradition and anti-terrorist conventions, effectively reinstates the political offence exception, and adds further grounds upon which the request for extradition may be challenged.

Thus, suspected terrorists, or indeed any criminal, have a right not to be extradited where the requesting state, in reality seeks his extradition to punish him on account of his race, religion, nationality, ethnicity, or political opinions.

III Conclusion:

While the reinforcement of states’ obligations towards the individual in international co-operation may be important generally, it takes on an added importance in instruments which seek to deal with terrorists. The phenomenon of international terrorism has resulted in a backlash of anger and disgust in many states, particularly following the events of the 11th of September, 2001. There is a danger that official and public opinion in a state which has been victimised by terrorist activities may be so intolerant and so aroused with passion that it might lead to practices, de facto or de jure, which deny certain fundamental rights to accused persons. The European Court of Human Rights has often provided the only judicial forum to challenge state practices in the anti-terrorism context since the 1970s. In the Ireland case in 1978 it stated clearly that combating terrorism could not justify breaches of fundamental human rights. Decisions in cases such as Brogan and Chahal have upheld the value of the right to liberty, even in the context of combating terrorism, and have stressed the need to retain judicial oversight of any deprivation of liberty. As recently as May 2001 the Court, in Jordan and Kelly v UK ⁴² further stressed that even when dealing with known terrorists, the state has an obligation to conduct law enforcement in a way which minimises the threat to life.

Defending the cause of human rights in the context of a perceived terrorist threat, especially when that threat is credible, remains a difficult task. The tragic human costs of terrorist attacks can easily “generate a ‘wartime’, defensive mentality within state institutions, mainstream media and the general public, such that ‘human rights’ and ‘terrorism’ are seen as incompatible and unrelated terms.”⁴³ But, however reprehensible the offence, a civilised society must provide all criminals with certain fundamental guarantees, especially in the area of international co-operation for suppressing crimes with international dimensions, such as terrorism. We must keep in mind a double perspective: the protection of society on the one hand and of the (suspected) terrorist on the other.

Thus, if we dismiss a terrorist’s human rights too readily, or the human rights of all criminal for that matter, we are guilty of valuing human life as cheaply as do the terrorists themselves.

As the UK Director of Communications at Amnesty International, Richard Bunting said recently:

“People who carry out heinous crimes and human rights abuses such as the horrific attacks on the USA on 11 September must be brought to justice. If laws need tightening to allow the prosecution and trials of such people, then they should be tightened, but without undermining basic rights. The answer to well-planned acts of outrage is well-planned policing, international co-operation, public vigilance, surveillance and proper judicial procedures - all in conformity with international standards.”⁴⁴