Freedom From Torture in the "War on Terror": Is it Absolute?

Freedom from torture is regarded as “absolute,” meaning that a state cannot infringe the right for purposes which would seem legitimate such as the protection of national security. Indeed, the freedom is viewed as “non-derogable”; that is, infringements are not permitted even in special circumstances such as times of war or public emergency. Is it right, however, with the growth in international terrorism post-9/11, particularly suicide violence, that the freedom should remain without limitation? Perhaps the torture of terror suspects might provide state authorities with intelligence so that acts of atrocity can be averted? To go on and construct a possible argument justifying ill-treatment against a detainee this article questions whether in fact freedom from torture can be categorised as absolute

Human Rights and Antiterrorism: A Positive Legal Duty to Infringe Freedom From Torture?

In law freedom from torture and ill-treatment is “absolute,” meaning that a state cannot infringe the right for purposes that would seem legitimate such as the protection of national security. However, with the growth in international terrorism, particularly suicide violence, should the freedom remain without limitation? This article considers legitimizing torture by reference to the “positive” legal obligation the right imposes on states to prevent harm to individuals by third parties such as terrorists. Assuming such a legal argument could be made out, it is questioned whether adopting such measures of interrogation would in fact outweigh the negative consequences that would inevitably follow from reversing accepted international standards for the protection of, say, detainees from ill-treatment in state custody

Positive obligations and Article 4 of the European Convention on Human Rights: a defence of the UK's Human Rights Act 1998

The Human Rights Act 1998 came into effect in the UK in 2000, incorporating specific Articles of the European Convention on Human Rights, such as the freedoms from torture (Article 3) and slavery (Article 4), into British law. But this legislation, and the rights it enshrines, are under severe attack from politicians and sections of the British press. This article presents a strong defence of the statute, by reference to one of its notable achievements: the obligation it imposed on the UK to outlaw the holding of a person in slavery or servitude, or compelling them to perform compulsory labour

Arming the Police in Britain: a Human Rights Analysis

In 2010 Derrick Bird shot and killed 12 people, as well as injuring a further 11, in Cumbria. A legitimate question that arose after the tragedy was whether the outcome would have been different if the British police had been armed? This paper explores whether human rights law requires, or at least justifies, the UK authorities to arm the police in the pursuit of public protection? Derrick Bird was licensed to possess his firearms. Is a more proportionate response amendments to the existing weapons certification process? These are some of the questions which this article seeks to address

A Communitarian Justification for Measures to Prevent Terrorism in the UK

The threat to the UK and its Western allies from Al-Qaeda related terrorism has declined but groups such as Islamic State in Iraq and the Levant (ISIL) have filled the ‘void’. In response the UK has introduced a raft of measures to increase its security, fulfilling many of its international and regional responsibilities to prevent terrorism. Human rights law is particularly important in this regard as it imposes obligations on states such as the UK to prevent violations of rights, such as the right to life, by non-state actors such as terrorists. This article seeks to employ a theoretical justification for a reading of this approach to human rights and focuses on legislative measures the UK has introduced to protect them. The philosophy for doing so is communitarianism, notably its critique of liberalism, and the post 9/11 revisions to it by communitarians such as Amitai Etzioni in particular

Limits to terror speech in the UK and USA: balancing freedom of expression with national security

Article 10(1) of the European Convention on Human Rights (ECHR), freedom of expression, is incorporated into UK law. With the growing Islamist terror threat after 9/11, particularly threatening European security, the Council of Europe introduced the Convention on the Prevention of Terrorism (CPT), 2005. One of the Articles within the Convention, Article 5, obliges states to outlaw ‘public provocation to commit a terrorist offence’. Drawing on its obligations in the CPT, the UK enacted s.1 of the Terrorism Act 2006: ‘encouragement of terrorism’. But in implementing its duties, the UK went further. There are very real concerns, therefore, about the effects of this legislation on freedom of expression. The test for interpreting breaches of Article 10 is ‘proportionality’. Comparatively, in America there is a much stronger test than proportionality, ‘strict scrutiny’, in assessing limits to terror speech. But in the age of Islamism, together with the speed, ease and little cost incurred in sharing terror speech online, should there not be a reappraisal of American law? The author is based in the UK. But the UK’s approach to limiting terror speech is arguably too intrusive of freedom of expression. This paper, therefore, proposes a compromise approach between the two jurisdictions

Conceptualising a protection of liberal constitutionalism post 9/11: an emphasis upon rights in the social contract philosophy of Thomas Hobbes

John Locke believed individuals covenanted with the state, in return for security they had previously lacked in the state of nature. But in this bargain of protection, individuals still retained fundamental freedoms, such as life, liberty and estate. This reflected the fear that the newly created state, whilst also a guarantor of security, was also a threat to it. But since 9/11, and the continuation of Islamist terrorism, is the state still a significant threat to individual freedom, in the Lockeian sense? Another social contract theorist, Thomas Hobbes, vested more power in the state than Locke. With modern interpreters of security from the liberal tradition recognising significant curtailments of freedom for the very protection of the constitutional state from non-state actors, such as Islamists, can these interpretations be premised on the limited rights granted to citizens by the Hobbesian sovereign? These are the issues which this paper seeks to explore