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Michaelsen, Christopher --- "International Human Rights on Trial - The United Kingdom's and Australia's Legal Response to 09/11" [2003] SydLawRw 13; (2003) 25(3) Sydney Law Review 275

[*] PhD Candidate, Key Centre for Ethics, Law, Justice & Governance, Griffith University. Thanks are due to Anthony Cassimatis, Megan Hirst, Ursula d’Ursel, Dr Joe Siracusa, the Editor and the two anonymous referees of this journal for much appreciated comments and criticisms.

[1] UN Doc S/Res/1368 (2001) and UN Doc S/Res/1373 (2001).

[2] See Henry H Han, Terrorism & Political Violence: Limits & Possibilities of Legal Control (1993); Peter Janke (ed), Terrorism and Democracy (1992); Alex P Schmid and Ronald D Crelinsten (eds), Western Responses to Terrorism (1993); David A Charters (ed), The Deadly Sin of Terrorism: Its Effect on Democracy and Civil Liberty in Six Countries (1994). See also Paul Wilkinson, Terrorism Versus Democracy: The Liberal State Response (2001).

[3] Paul Wilkinson, Terrorism and the Liberal State (2nd ed, 1986) at 125. Moreover, several scholars argued that an ability to deal with terrorism in a way that is widely held to be in conformity with established political and judicial principles will, in actuality, strengthen the commitment to uphold democratic institutions and, thus, further isolate and weaken those who seek to destroy them. See, for example Peter Chalk, ‘The Liberal Democratic Response to Terrorism’ (1995) 7(4) Terrorism and Political Violence 10.

[4] UN Doc A/Res/54/164 (1999).

[5] Relevant legislation includes the Terrorism Act 2000 (UK), the Immigration Act 1971 (UK), the Extradition Act 1989 (UK), the Taking of Hostages Act 1982 (UK), the Customs and Exercise Management Act 1979 (UK) and the Export of Goods (Control) Order 1994 (UK).

[6] The Act received Royal Assent on 14 December 2001. The full text version and other related information can be found at <http://www.hmso.gov.uk/acts/acts2001/20010024.htm> (24 May 2003).

[7] Adam Tomkins, “Legislating against Terror: the Anti-terrorism, Crime and Security Act 2001” [2002] (Summer) Public Law 205 at 205. See also Rhiannon Talbot, “The Balancing Act: Counter-terrorism and Civil Liberties in British Anti-terrorism Law” in John Strawson (ed), Law After Ground Zero (2002) 123 at 123–132. Talbot, however, examines British counter-terrorism legislation from a civil liberties angle rather than from the international human rights perspective.

[8] For a good summary of the principal changes made by the ATCSA, see <http://www.homeoffice.gov.uk/oicd/antiterrorism/atcsa.htm> (6 Jan 2003).

[9] According to s21(3), a ‘group is an international terrorist group for the purposes of subsection (2)(b) and (c) if – (a) it is subject to the control or influence of persons outside the United Kingdom, and (b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.’ Section 21 (4) states that ‘[f]or the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.’

[10] For the Terrorism Act 2000 (UK) see <http://www.hmso.gov.uk/acts/acts2000/20000011.htm> (2 Jan 2003). Section 1 reads:

(1) In this Act “terrorism” means the use or threat of action where –
(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it –

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section –

(a) “action” includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.’

[11] Examples of a ‘point of law’ preventing removal include other international obligations such as Article 3 of the ECHR (see n13). An example of ‘practical consideration’ would be the absence of relevant travel documents.

[12] The author acknowledges that the ATCSA provisions also breach obligations under the ICCPR, specifically Article 9(4). Although there are slight differences in the wording of Article 5 of the ECHR and Article 9 of the ICCPR, the provisions are similar. As Article 9(4) of the ICCPR will be subject to an in-depth analysis in the Australian context, focus here is on Article 5 of the ECHR only.

[13] The paradigmatic example for removal from the United Kingdom being prevented by a ‘point of law’ is the case where such removal would expose the person to the risk of torture, or of inhuman or degrading treatment (Article 3 ECHR). See Chahal v United Kingdom [1996] ECHR 54; (1996) 23 EHRR 413.

[14] In Chahal v United Kingdom the European Court of Human Rights held that ‘any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible’: Chahal v United Kingdom, id at 465.

[15] In particular, s23 of the ATCSA does not fall under the exception of Article 5(1)(c) of the ECHR.

[16] Patrick Wintour, ‘Blunkett rejects “airy fairy” fears’, Guardian (Manchester) (12 Nov 2001) at 2.

[17] Human Rights Act 1998 (Designated Derogation) Order 2001 (UK). The relevant passage reads: ‘There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom. As a result, a public emergency, within the meaning of Article 15(1) of the Convention, exists in the United Kingdom’ (Sch Article 2).

[18] The United Kingdom also notified the UN Secretary–General of its Article 4(1) ICCPR derogation from Article 9(1) of the ICCPR.

[19] SIAC was established by the Special Immigration Appeals Commission Act 1997 (UK) to hear appeals against immigration and deportation decisions that have been taken on national security grounds.

[20] It seems worthy to note, however, that a cancellation does not prevent the Secretary of State from issuing a new certificate, ‘whether on the grounds of a change of circumstance or otherwise’ (s27(9)).

[21] X v United Kingdom [1981] ECHR 6; (1981) 4 EHRR 188 at 207.

[22] See, for example Singh v United Kingdom, Hussain v United Kingdom [1996] ECHR 8; (1996) 22 EHRR 1.

[23] Bouamar v Belgium [1988] ECHR 1; (1987) 11 EHRR 1.

[24] Sanchez-Reisse v Switzerland [1986] ECHR 12; (1986) 9 EHRR 71; Lamy v Belgium (1989) 15 EHRR 529. See also Toth v Austria [1991] ECHR 72; (1991) 14 EHRR 551; Kampanis v Greece [1995] ECHR 22; (1995) 21 EHRR 43.

[25] Special Immigration Appeals Commission Act 1997 (UK), s6.

[26] Except in the Northern Territory, see Criminal Code Act (1983) (NT) Pt III Div 2.

[27] These five bills include the Security Legislation Amendment (Terrorism) Bill 2002 [No 2] (Cth), Suppression of the Financing of Terrorism Bill 2002 (Cth), Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 (Cth), Border Security Legislation Amendment Bill 2002, Telecommunications Interception Legislation Amendment Bill 2002 (Cth).

[28] The Bill introduced a definition of ‘terrorist act’ into federal law and contains criminal sanctions for involvement with a terrorist organisation, including for providing support or funding, recruiting members, directing its activities or being a member. According to s102.1, a terrorist organisation is ‘an organisation that is directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act (whether or not the terrorist act occurs)’.

[29] The ASIO Bill (Third Reading) is available at <http://zem.squidly.org/cache/asio-11100200.pdf> . For the ASIO Bill (First Reading) see <http://www.aph.gov.au/house/committee/pjcaad/TerrorBill2002/terrorism2002.pdf> . For the revised version of 20 March 2003, see <http://parlinfoweb.aph.gov.au/piweb/Repository/Legis/Bills/Linked/17040301.pdf> .

[30] Quoted by Mark Forbes, ‘Deadlock on ASIO Bill’, The Age (Melbourne) (13 Dec 2002) [Emphasis added.]. See also Daryl Williams, ‘How the anti-terrorism laws assure security and freedom’, The Age (Melbourne) (11 June 2002) at 13.

[31] George Williams, ‘Why the ASIO Bill is Rotten to the Core’, The Age (Melbourne) (27 Aug 2002) at 15. For a critical examination of Australian anti-terrorism legislation see also George Williams, ‘One Year On: Australia’s Legal Response to September 11’ (2002) 27(5) Alt LJ 212; Joo-Cheong Tham, ‘ASIO and the Rule of Law’ (2002) 27(5) Alt LJ 216.

[32] Act No 77, 2003. Attorney–General, Stronger Tools for ASIO to Combat Terrorism (News Release 72/03) (26 June 2003): <http://nationalsecurity.ag.gov.au> (10 July 2003).

[33] According to s34B, a ‘prescribed authority’ may be a retired superior court judge, a current State or Territory Supreme Court or District Court judge, or a President or Deputy President of the Administrative Appeals Tribunal.

[34] Australia signed the ICCPR on 18 December 1972 and ratified it on 13 August 1980.

[35] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) at 178.

[36] Van Alphen v The Netherlands (1990) HRC Comm No 305/1988, UN Doc A/45/40 at para 5.8. See also A v Australia (1997) HRC Comm No 560/1993 at para 9.2.

[37] ‘Australia will be terrorist target for years: ASIO’, The Age (Melbourne) (19 Apr 2002).

[38] Ibid.

[39] Bill C–36 (An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism) 2001 (Can), s83.28(1) and s83.28(11): <http://www.parl.gc.ca/37/1/parlbus/chambus/house/bills/government/C – 36/C – 36_4/C – 36TOCE.html> (3 Mar 2003).

[40] Human Rights Committee (hereinafter HRC), General Comment 8 (1982) at para 2.

[41] Freemantle v Jamaica (1998) HRC Comm No 625/1995.

[42] Brogan v United Kingdom [1988] ECHR 24; (1988) 11 EHRR 117.

[43] See above n33 and accompanying text.

[44] See above nn20–25 and accompanying text.

[45] Chahal v United Kingdom, above n13 at 469.

[46] The ASIO Act may also violate Article 17(1) of the ICCPR which provides that ‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’ In McVeigh, O’Neill & Evans v United Kingdom (1981) 5 EHRR 71 the European Commission of Human Rights found that the detention of suspected terrorists for 45 hours without access to their wives breached Article 8 of the ECHR, the equivalent to Article 17 of the ICCPR in the European Convention.

[47] For ‘strict liability’, the Criminal Code Act 1995 (Cth), s6.1.

[48] Saunders v United Kingdom [1996] ECHR 65; (1996) 23 EHRR 313.

[49] HRC, General Comment 13 (1984) para 14.

[50] The UN Convention on the Rights of the Child (hereinafter CROC): <http://www.unicef.org/crc/crc.htm> (13 Feb 2003).

[51] The Bill may also breach Articles 2(2), 3(1) and 19(1) of the CROC. Article 2(2) provides that a child must not be discriminated against on the basis of the expressed opinions of their parents. Article 3 (1)1 provides that ‘in all actions concerning children ... the best interests of the child shall be a primary consideration’. Article 19(1) provides that the State must take all appropriate measures to protect the child from all forms of injury or abuse.

[52] Accounts on emergency derogations in general include Rosalyn Higgins, ‘Derogations under Human Rights Treaties’ (1976–77) 48 The British Yearbook of International Law 281; Thomas Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’ in Louis Henkin (ed), The International Bill of Rights: The Covenant on Civil and Political Rights (1981) 72; Joan F Hartman, ‘Working Paper for the Committee of Experts on the Article 4 Derogation Provision’ (1985) 7(1) Human Rights Quarterly 89; David J Harris, Michael O’Boyle & Chris Warbrick, Law of the European Convention on Human Rights (1995) at 489–507; Jochen A Frowein & Wolfgang Peukert, Kommentar – Europäische Menschenrechtskonvention (2nd ed, 1996) 479–85; Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception: With Special Reference to Travaux Préparatoires and Case-Law of the International Monitoring Organs (1998).

[53] Article 15 of the ECHR reads:

‘1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law.

2. No derogations from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.’

Article 4 of the ICCPR reads:

‘1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Convenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other State Parties to the present Covenant, through the intermediary of the Secretary–General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.’

[54] Lawless v Ireland (No 3) [1961] ECHR 2; (1961) 1 EHRR 15.

[55] Id at 31.

[56] Greek Case (1969) 12 Yearbook ECHR 1

[57] The relevant part reads: ‘Une situation de crise ou de danger public exceptionnelle et imminente...’ [Emphasis added.]

[58] Greek Case, above n56 at para 153.

[59] Some members of the Commission argued that when the organs of the State are functioning normally, there is no grave threat to the life of the nation and, therefore, emergency measures are not legitimate. However, the majority in the Commission did not follow this reasoning. In practice, both criteria (2) & (3) are generally applied in a rather relaxed way.

[60] Evidence of these requirements being recognised as general legal standards in the process of determining the meaning of ‘public emergency’ can also be found in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (hereinafter Siracusa Principles), reproduced in ‘Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights’ (1985) 7(1) Human Rights Quarterly 3. The Siracusa Principles were drafted by a group of 31 distinguished experts in international law convened by a number of well-respected organisations such as the International Commission of Jurists. The Conference was held in Siracusa, Italy in Spring 1984. In addition, these criteria are expressed in the International Law Association’s (hereinafter ILA) work on the issue: Paris Minimum Standards of Human Rights Norms in a State of Emergency ILA, (hereinafter the Paris Minimum Standards), reproduced in ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985) 79 AJIL 1072.

[61] HRC, General Comment 29 (2001) at paras 4 and 5.

[62] As Ronald St J Macdonald observed, it is the doctrine of margin of appreciation which allows the Court to escape the dilemma of ‘how to remain true to its responsibility to develop a reasonably comprehensive set of review principles appropriate for application across the entire Convention, while at the same time recognising the diversity of political, economic, cultural and social situations in the societies of the Contracting Parties’. See Ronald St J Macdonald, ‘The Margin of Appreciation’ in Ronald St J Macdonald, Franz Matscher & Herbert Petzold (eds), The European System for the Protection of Human Rights (1993) 83 at 83.

[63] See, for example Thomas A O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4(4) Human Rights Quarterly 474.

[64] Ireland v United Kingdom (1978) Series A No 35 at 78–9.

[65] Ibid.

[66] Landinelli Silva v Uruguay (1981) HRC Comm No 34/1978 at para 8.3.

[67] HRC, General Comment 29, above n61 at para 2. This requirement mainly seeks to reduce the incidence of the de facto states of emergency by obliging states to declare the emergency following the procedures of municipal law.

[68] Nowak, above n35 at 80.

[69] Lawless v Ireland, above n54 at paras 4–5.

[70] Joan Fitzpatrick, Human Rights in Crisis: The International System for Protecting Rights During States of Emergency (1994) at 59.

[71] A reference to a bona fide proclamation is also made in Principle 66 of the Siracusa Principles.

[72] See Article 15(1) of the ECHR and Article 4(1) of the ICCPR.

[73] See, for example Marc-André Eissen, ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights’ in Ronald St J Macdonald, above n62 at 125–137.

[74] Ibid.

[75] Above n64 at 78–9.

[76] See Principles 54 and 57 of the Siracusa Principles.

[77] See, for example Jaime Oraa, Human Rights in States of Emergency in International Law (1992) at 178.

[78] Id at 30–31.

[79] Francis X Taylor, ‘The Global War Against Terrorism: The Way Ahead’, Address to the Institute for National Strategic Studies, National Defense University, Washington DC, 23 October 2002: <http://www.state.gov/s/ct/rls/rm/14570pf.htm> (2 Mar 2003).

[80] The list of Islamic extremist terror organisations is both a long and an open one. It is also noteworthy that although the 9/11 attacks are considered to be initiated by Usama bin Laden, to this date, neither Al–Qaeda nor any other terrorist group has officially claimed responsibility.

[81] Parliamentary Assembly of the Council of Europe, Combatting Terrorism and Respect for Human Rights, Res 1271 (2002) at paras 9 and 12(v): <http://assembly.coe.int/Documents/AdoptedText/ta02/ERES1271.htm> (18 Jan 2003).

[82] The author acknowledges that European countries, particularly France, Germany (eg Munich Olympics 1972) and the United Kingdom (eg Lockerbie crash of Pan Am 103, 1988), have been subject to attacks from terrorist groups with links to the Middle East. However, to this day, there have not been any attacks in Europe from Islamic fundamentalist terrorists commonly associated with Al–Qaeda.

[83] Figures quoted by Tomkins, above n7 at 215–6.

[84] See, for example Rohan Gunaratna, Inside Al Qaeda: Global Network of Terror (2002); Yonah Alexander & Michael S Swetnam, Usama bin Laden’s al–Qaida: Profile of a Terrorist Network (2001); Bruce Hoffman, Inside Terrorism (1998).

[85] Wintour, above n16.

[86] ‘The Committee notes with concern that the State Party, in seeking inter alia to give effect to its obligations to combat terrorist activities pursuant to Resolution 1373 of the Security Council, is considering the adoption of legislative measures which may have potentially far-reaching effects on rights guaranteed in the Covenant, and which, in the State Party’s view, may require derogations from human rights obligations. The State Party should ensure that any measures it undertakes in this regard are in full compliance with the provisions of the Covenant, including, when applicable, the provisions on derogation contained in Article 4 of the Covenant’: HRC, Concluding Observations of the Human Rights Committee, United Kingdom of Great Britain and Northern Ireland (6 Dec 2001) at para 6.

[87] SIAC judgment in A and others v Secretary of State for the Home Department (30 July 2002) Appeal No: SC/1–7/2002.

[88] See above notes 67–71 and accompanying text. As the British government notified the Council of Europe and the UN Secretary–General about the derogation from the ECHR and ICCPR, the requirement of notification has been fulfilled and is not discussed here any further

[89] HRC, General Comment No 29, above n61 at para 1.

[90] Wintour, above n16.

[91] Well respected human rights lawyer David Pannick QC, in an opinion prepared for the National Council for Civil Liberties (Liberty), made the additional point that the derogation from Article 5(1) is prompted by concern about an inability to remove foreign nationals from the United Kingdom because of Article 3 of the ECHR. He was ‘very doubtful’ that it is a valid use of Article 15(1) to impose detriments on persons because they seek to take advantage of rights conferred by Article 3, especially when Article 15(2) prohibits any derogation from Article 3 itself because of its fundamental nature. For Pannick, it is strongly arguable that the Home Secretary is not seeking to derogate from Article 5(1) because of a public emergency threatening the life of the nation, but because Article 3 prevents him removing from the United Kingdom asylum-seekers who may face persecution abroad. See Joint Committee On Human Rights, Anti-terrorism, Crime and Security Bill: Further Report, Fifth Report, (hereinafter Joint Committee on Human Rights Fifth Report) HL 51, HC 420, Session 2001–2002, Appendices, Appendix 5 at para 6(5): <http://www.publications.parliament.uk/pa/jt200102/jtselect/jtrights/51/5102.htm> (20 Feb 2003).

[92] It is significant to note that some of the measures, as a former Home Secretary admitted in the House of Lords, have been ‘hanging around in the Home Office for a long time’ waiting for a suitable legislative opportunity to arise. Quoted by Tomkins, above n7 at 220.

[93] (1996) 22 EHRR 553.

[94] Quoted in Joint Committee on Human Rights Fifth Report, above n91 at Appendix 3, para 10.

[95] In Home Secretary v Rehman [2001] UKHL 47; [2001] 3 WLR 877 at 884 (Lord Slynn of Hadley) and 894 (Lord Hoffman), it was held that ‘action against a foreign state may be capable indirectly of affecting the security of the United Kingdom’ and that ‘the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interests of national security’.

[96] For the Tamil Tiger example, see Joint Committee On Human Rights Fifth Report, above n91 at Appendix 3, para 21–2.

[97] Walter Pincus & Dana Priest, ‘Spy Agencies’ Optimism on Al Qaeda is Growing’, Washington Post (6 May 2003) at A16.

[98] Quoted in Mark Hosenball & Michael Isikoff, ‘Al Qaeda Strikes Again’, Newsweek (26 May 2003) 24 at 26.

[99] Terrorism experts believe that recent terorist attacks in Riyadh and Morocco were ‘probably not orchestrated by Al Qaeda’ and have ‘little or no connection to Usama bin Laden’. The attacks are rather believed to have been carried out by local groups with anti-monarchist motivations: William O Beeman, ‘Saudi-Bombing – A Calculated Act With a Political Message’, Pacific News Service (14 May 2003).

[100] It is not without significance that a number of British MPs rejected extending SIAC powers to rule on appeals of detention orders. Replying to the Home Secretary’s argument that MPs did not object to the creation of SIAC in 1997, one MP pointed out that ‘had MPs known that SIAC – a star chamber of an organisation, with draconian powers over evidence – was to be used as an appeals procedure, not for deportation but for the indefinite incarceration of people without charge or trial, MPs would not have voted for it’. See Bob Marshall-Andrews MP, A Fundamental Attack on Liberty Which Must Be Stopped: <http://www.poptel.org.uk/scgn/articles/0112/page6d.htm> (4 Feb 2003).

[101] See above notes 20–25 and accompanying text.

[102] [2001] UKHL 47; [2001] 3 WLR 877 at 896–7 (Lord Hoffman).

[103] [2000] UKPC D3; [2001] 2 WLR 817 at 834–5 (Lord Bingham of Cornhill).

[104] A and others v Secretary of State for the Home Department [2002] EWCA Civ 1502 at para 40 (Lord Woolf CJ).

[105] Chahal v United Kingdom, above n13 at 469.

[106] See above notes 20–25 and accompanying text.

[107] Paris Minimum Standards, above n60 at section B2(d). As Colin Warbrick observed correctly, the list of prohibited grounds of discrimination is both a long one and an open one: Colin Warbrick, ‘The Principles of the European Convention on Human Rights and the Response of States to Terrorism’ (2002) 3 European Human Rights Law Review 287 at 313–14.

[108] Belgian Linguistics Case (No 2) [1968] ECHR 3; (1968) 1 EHRR 252.

[109] Gaygusuz v Austria [1996] ECHR 36; (1997) 23 EHRR 364 at 381.

[110] Peter Beaumont, ‘Briton held in US camp as al–Qaeda prisoner’, The Observer (London) (13 Jan 2002) at 1. In addition, nine British citizens allegedly involved in terrorist activities were detained as a consequence of allied military action in Afghanistan. One of these detainees was recruited by a British preacher from a London mosque. See, for example Richard Willing, ‘London Mosque Called Central to al–Qaeda Efforts’, USA TODAY (30 Aug 2002) at A03.

[111] Richard Reid tried to blow up a transatlantic flight from Paris to Miami on 22 December 2001 using explosives hidden in his sports shoes. See, for example Gary Younge & Duncan Campbell, ‘Shoe-bomber sentenced to life in prison’, Guardian (Manchester) (31 Jan 2003) at 16.

[112] Above n104 at paras 45–56.

[113] Above n37.

[114] An audiotaped message from Usama bin Laden in November 2002 warned of further terrorist attacks on countries ‘allying themselves with America’. Although bin Laden referred to Australia as potential future target, Australia was mentioned only after Britain, France, Italy, Canada and Germany: ‘Official: Voice on tape is bin Laden’s’, CNN News, 13 Nov 2002: <http://www.cnn.com/2002/WORLD/meast/11/12/binladen.statement> (13 Nov 2002).

[115] Above n37.

[116] See above notes 50–51 and accompanying text.

[117] Benjamin Franklin, Historical Review of Pennsylvania (1759), quoted in Emily Morison Beck (ed), Bartlett’s Familiar Quotations: A Collection of Passages, Phrases, and Proverbs Traced to their Sources in Ancient and Modern Literature (15th and 125th anniversary edn, 1980) at 348.

[118] Michael Kirby, Australian Law – After September 11, 2001, Speech to the Law Council of Australia, 32nd Australian Legal Convention, 11 October 2001: <http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_after11sep01.htm> (14 Jan 2003).

[119] Joseph M Siracusa, ‘The “New” Cold War History and the Origins of the Cold War’ (2001) 47(1) Australian Journal of Politics and History 149.

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