GLOBAL ANTI-TERRORISM LAW AND POLICY

Vol. 16 No. 6 (June, 2006) pp.457-461

GLOBAL ANTI-TERRORISM LAW AND POLICY, by Victor V. Ramraj, Michael Hor and Kent Roach (eds). Cambridge: Cambridge University Press, 2005. 664pp. Hardback. £90.00/$160.00. ISBN: 0521851254.

Reviewed by Clive Walker, Centre for Criminal Justice Studies, School of Law, University of Leeds. Email: law6cw [at] leeds.ac.uk

Assuming that late modern society can be characterised as a ‘risk society’ (Beck, 1992), the threat of terrorism must be counted as one of the defining characteristics of our risk-ridden epoch. Terrorism dominates news headlines, results in the redesign of state apparatus and consumes increasingly large portions of public budgets. Terrorism is even the trigger for wars between, or at least upon, states and for more fanciful claims of the emergence of “the first war of the 21st century” against the very conception (Bush, 2001). Both the threat and the response seem to be pervasive, with impacts in all sectors of society, from new and costly military hardware to health protection against biological or chemical weapons. These emanations resonate in each and every jurisdiction throughout the world.

In these circumstances, a book with the majestically sweeping title of GLOBAL ANTI-TERRORISM LAW AND POLICY appears well-suited to our times. The book is indeed majestic in many respects, and the editors, Victor V. Ramraj, Michael Hor and Kent Roach, are to be congratulated on tackling such a large agenda and in bringing the project to fruition, from its origins in a conference in 2004, within a relatively short space of time. Their overall objective is primarily descriptive rather than programmatic – “to contribute to the growing field of comparative and international studies of anti-terrorism law and policy . . . to examine and compare anti-terrorism laws and policies in many of the major jurisdictions” (p.1). Because of the descriptive approach, there is no overall concluding chapter (and no bibliography); nor is there any pervasive format or normative stance . A few chapters do subject the anti-terrorism laws to a rights-based audit (largely ignoring at the same time hard data about other operative criteria such as effectiveness). Others are content with conveying information about laws and policies. The book therefore is better viewed as a conduit whereby national representatives “simply talk to each other” about the problems of terrorism rather than “learn from each other” (p.10). Nevertheless, the individual chapters are, for the most part, well-written, adequately referenced, and embody some valiant attempts by the editors and contributors to make cross-references where appropriate.

The substance of the book might be divided into two elements. The initial element (Parts I and II) adopts a thematic approach. Part I commences with two thoughtful chapters (by Donoghue and Lim) about the concept of terrorism. The next two offerings are also conceptual in nature but somewhat less original. Both authors retread the published arguments of Oren Gross (2003) and fellow travelers (notably [*458] Alan Dershowitz 2002) that the exceptional threat of terrorism should result in legal adjustments, such as under the ‘Extra-Legal Measures’ model, whereby public officials are allowed to run roughshod over normal legal restraint and thereby can apply, for example, forms of normally unacceptable behaviour to coerce information about a ticking bomb. This scenario has triggered a vast legal debate in the US. It is given added piquancy by the knowledge that the scenario is far from academic but is practiced daily in Abu Ghraib prison and the Guantánamo detention camp, the inhuman and degrading aspects of which are excused or ignored by prominent apologists. The debate is not much advanced here, and some readers will feel irritation that painful lessons cannot be learnt from the history of others, not only the Israeli experience but also the seminal discussions around the Parker Report (1972). No official should act under a doctrine of legal condonation, and one should not confuse a possible defence of necessity with such a doctrine. Surely legislators have enough experience with terrorism to be able to speak with certainty under the rule of law before the need for action. Those officials who wish to ignore their clear constraints kid themselves that they are acting for the good of society.

A thematic chapter about approaches to constraint and review would have been very helpful. Ramraj (Chapter 6: ‘Terrorism, Risk Perception and Judicial Review’) attempts to make a narrower point – that judicial review is a “crucial institutional safeguard against policies motivated primarily be fear” (p.108). More crucial than restraint imposed within the executive? More crucial than restraint imposed by the legislature? One can easily foresee problems for judicial enthusiasts, such as access to sensitive information, as well as the ambit and timing of the litigation which gives rise to the opportunity for intervention. In reality, there exist shortcomings in depicting any of the branches of the state as the premier champions of liberal democracy, but it is hard to accept the bald assertion that “[n]either the legislature nor the executive has an institutional expertise in rights” (p.123). What might be true in a one-party state such as Singapore might be less evident, say, in the United Kingdom, where the Human Rights Act 1998 was designed by Ministers and officials rather than any independent commission of lawyers, and where the parliamentary Joint Committee on Human Rights (including such luminaries as Lord Anthony Lester) is far from an also-ran in rights know-how.

Part II contains a number of other thematic chapters that look into areas of policy. These include an excellent and perceptive overview by Kent Roach into ‘The Criminal Law and Terrorism’ (Chapter 7). There are other useful contributions on financing (Chapter 9 by Kevin Davis), technology (Chapter 10 by Mary W.S. Wong) and maritime security (Chapter 12, Robert C. Beckman). Of rather more limited utility and interest (since they are mainly confined to the minutiae of one jurisdiction) are the offerings on asylum, immigration and nationality law (Chapters 8) and aviation law (Chapter 11). [*459]

Moving on from these themes, the bulk of the book (Chapters 13 to 27) consists of a whistle-stop tour of regional and national jurisdictions. Within Asia (Part III), there is reporting of Singapore and Malaysia, Indonesia, the Philippines, Japan, India, and Hong Kong. Part V turns ‘west’ towards the United Kingdom, the United States, Canada, Australia and New Zealand. Part VI deals with several African jurisdictions (South Africa and assorted east African states), some Arab countries, plus Argentina. The regional coverage (Part IV) consists of Association of Southeast Asian Nations and the European Union, though Chapter 26 on the Arab states does usefully relate the details of the Arab Convention on the Suppression of Terrorism 1998.

The survey shares many of the delights and drawbacks of a whistle-stop excursion. On the one hand, useful insight is given into previously inaccessible terrain (Chapters 14 and 16 on Indonesia and Japan might fall into that category), and one duly marvels at the unexpected and unusual. On the other hand, one is forced to be selective about the sites of interest. For example, why visit Hong Kong but not Pakistan or Saudi Arabia? Why New Zealand but not France or Spain? Why Uganda but not Somalia? Why Argentina but not Colombia? At a regional level, there is rightly an excellent survey of European Union activity (Chapter 20), but not the work of the Council of Europe, which has occupied the field for much longer and has often set standards which the European Union has merely copied. Furthermore, one’s visit is touristic, without time to linger or delve too deeply. As a result, some of the chapters are highly selective or unduly sweeping in their generalisations. To take an example, the description of the UK’s anti-terrorist legal policy (Chapter 21) concentrates on the issue of detention without trial under Part IV of the Anti-terrorism, Crime and Security Act 2001 (now repealed). Important though this measure was, both as a symbol and as a lived experience for those 17 suspects unfortunate enough to be certified under Part IV, to pass over without mentioning special powers of arrest and stop and search is to miss out on the much more pervasive experience of the legislation and its main usage. The pattern is repeated in several chapters, where the issue of definition seems an abiding concern; whereas more operative parts – the purposes to which the definition is actually put, such as powers of arrest and detention – are barely touched upon. Likewise in Chapter 21, to represent the Terrorism Act 2000 as a wholly retrograde step compared to previous legislation (p.459) because of its extension to international terrorism is to misunderstand the extent to which the previous legislation had been adapted to non-Irish purposes by amendments in 1984 and 1989 which were far from ‘minor’ and also to ignore other changes brought about by the 2000 Act which secured, for example, the abolition of exclusion orders and the subjection of proscription and police detention powers to independent review.

Aside from the difficulties of balancing breadth and depth, some other shortcomings emerge. The book is heavy on technical law but is less illuminating on policy. The question is asked by the [*460] editors whether “a comprehensive all-risk approach to human security” would be more rational than a concentration on a ‘coercive’ approach (p.8). The question probably posits a false policy choice – in reality, the issue is not an alternative strategy but an additional tactic in an overall strategy (such as the UK’s CONTEST policy which is nowhere mentioned). Yet, aside from the chapters by Kent Roach (Chapters 7 and 23), plus some indication in the US text (Chapter 22) that there has been an enormous administrative upheaval to produce the Department of Homeland Security, there is no exploration or answer. The issues of strategy, contingency planning, organisational change and securitisation are passed over by most other contributors, despite their evident importance to both law and policy. The growing trend of designing the instruments of society by reference to security rather than, say welfare, certainly merits more attention than accorded in this book, especially as it diverts from other pressing social policies, inflicts ruinous expense and triggers, through the inconvenience and intrusion of security, constant reminders of our insecurity (Walker and Broderick, 2006).

Another irritation is that just as 9/11 produced ‘Ground Zero,’ so many of the contributors seem to treat 9/11 as year zero. Exceptions are the chapter on Malaysia and Singapore (Chapter 13, which conversely reports surprisingly little from recent times concerning action taken against Islamists and migrants) and Chapter 27 on Argentina (which differs from all other chapters by its focus on past state terrorism rather than sub-state terrorism). It is true that the United Nations Security Council Resolution 1373 of 28 September 2001 gave a substantial impetus to the passage of new legislation. But laws and policies did actually exist beforehand in most jurisdictions, whether in the shape of the Parker Report (mentioned above) or the ability to question under oath (compare Explosive Substance Act 1883 (UK), section 6, and p.519). There is but one bare mention of the important works of Clinton Rossiter (p.490) but apparent unawareness of theorists such as Paul Wilkinson. It is bizarre and perhaps indicative of the destabilising impact of terrorism that Carl Schmitt should merit more reverence (in Chapters 4 and 5).

A final shortcoming is that, although billed as ‘global,’ the book is less than comprehensive. Some selection at a national and regional level is to be expected, but the grounds for it could be better articulated, and it is even more difficult to understand the omission of several truly global aspects of anti-terrorism law and policy. While there is reference to the United Nations Security Council Resolution 1373, there no assessment of the work of the Counter-Terrorism Committee or the interplay between its work and the Human Rights Committee. Equally on a global scale, the book is almost entirely silent about the laws of war (there is brief mention of the doctrine of pre-emptive strike in Chapter 22), despite the controversies concerning their impact, whether on the battlefields of Afghanistan or on the prisoners held in Guantánamo Bay (Duffy, 2005), or perhaps hidden away in the even darker recesses of CIA-operated real estate (Council of Europe [*461] 2006). There is also no discussion of the role of such global players as the G8 or Interpol.

Given the hefty size and hefty price of this book, it is perhaps most suited as a reference work for libraries. Some of its thematic chapters are valuable, but its jurisdictional surveys offer at best partial introductions to some of the complex range of legal activities in response to terrorism.

REFERENCES:

Beck, Ulrich. 1992. RISK SOCIETY: TOWARDS A NEW MODERNITY. London: Sage.

Bush, George W. 2001. “Bush, G.W., News Conference.” THE WASHINGTON POST, 14 September 2001, C12.

Council of Europe Parliamentary Assembly. 2006. “Alleged Secret Detentions and Unlawful Inter-State Transfers Involving Council of Europe Member States.” AS/Jur(2006) 16 Parl.II.

Dershowitz, Alan M. 2002. WHY TERRORISM WORKS. New Haven: Yale University Press.

Duffy, Helen. 2005. The ‘War on Terror’ and the Framework of International Law. Cambridge: Cambridge University Press.

Gross, Oren. 2003. “Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?” 112 Yale Law Journal 1011–1134.

Parker Report. 1972. “Report of the Committee of Privy Counsellors Appointed to Consider Authorised Procedures for Interrogation of Persons Suspected of Terrorism” (Cmnd. 4901). London: Her Majesty’s Stationery Office.

Walker, Clive, and James Broderick. 2006. THE CIVIL CONTINGENCIES ACT 2004: RISK, RESILIENCE AND THE LAW IN THE UNITED KINGDOM. Oxford: Oxford University Press.

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