Christopher Michaelsen

Antiterrorism Legislation in Australia: A Proportionate Response to the Terrorist Threat?

This article examines key provisions of Australias antiterrorism legislation introduced in the aftermath of the 11 September attacks. Never before in history has Australia witnessed a comparable overhaul of national security legislation and the introduction of laws that significantly curtail civil liberties and fundamental freedoms. A question that thus needs to be addressed is whether or not Canberras drastic legislative measures are justified by the severity of the terrorism threat to Australia. It is argued that the actual risk of a terrorism attack occurring on Australian soil is rather low. As a consequence, the Howard governments antiterrorism laws constitute a disproportionate response that has worrisome long-term implications for Australias legal system and its society more generally.

Derogating from International Human Rights Obligations in the ‘War Against Terrorism'? — A British–Australian Perspective

ABSTRACT This article examines the United Kingdoms Anti-terrorism, Crime and Security Act 2001 and the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002 (Cth) from an international human rights law perspective. It argues that both pieces of legislation raise serious concerns in relation to international legal obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Both international treaties allow for ‘derogation’ from certain provisions in times of ‘public emergency’. While the United Kingdom has officially derogated from some of its treaty obligations, Australia has yet to submit a similar notification. This article argues, however, that the United Kingdoms derogation is unlawful. Likewise, current circumstances in Australia would not permit lawful derogation from the ICCPR.

Intervention in Libya: Another Nail in the Coffin for the Responsibility-to-Protect?

Abstract The article challenges the widespread assertion in the public and academic discourse that the military intervention in Libya was a successful first true test of the doctrine of the Responsibility to Protect (RtoP). Examining the application of the doctrine as a tool of international political decision making as well as a normative framework in international law, the article reviews relevant Security Council resolutions as well as statements made by UN Member States during the Libyan crisis. These suggest that an express invocation of RtoP would have prevented rather than facilitated the adoption of Resolution 1973 (2011) and its authorisation of the use of force to protect civilians in Libya. It is argued further that a narrower focus on ‘protecting civilians’ rather than on the broader concept of RtoP is likely to provide greater political and legal utility in preventing humanitarian catastrophes in the future, even if the Security Council’s response to the crisis in Syria has been disappointing so far.

The Security Council's Al Qaeda and Taliban Sanctions Regime: “Essential Tool” or Increasing Liability for the UN's Counterterrorism Efforts?

This article examines the UN Security Councils 1267 counterterrorism sanctions regime. Initially adopted in 1999, this sanctions regime targets individuals and entities suspected of associating with Al Qaeda and/or the Taliban and it requires UN Member States to freeze their assets and implement travel bans. Central to the operation of the sanctions regime is a “Consolidated List,” which is maintained by the so-called 1267 Committee, a sub-committee of the Security Council. This Committee possesses discretionary powers to list and de-list targeted individuals and entities that have been criticized as incompatible with internationally recognized due process guarantees. Reviewing recent developments, including a landmark decision by the European Court of Justice, the article addresses the need for additional safeguards and discusses reform options available to the Security Council. It examines the most recent reform efforts introduced by Security Council resolution 1904 (2009) and argues that a comprehensive review and reform of the 1267 sanctions is crucial if the regime is to provide an “essential tool” in the UN counterterrorism efforts.

Permanent Legal Emergencies and the Derogation Clause in International Human Rights Treaties: A Contradiction?

This chapter examines the derogation clauses in key international human rights treaties such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights. It provides an overview of the derogation clauses and relevant interpretations and case law which have developed on the issue before 9/11. The analysis then concentrates on the derogation rules in post-9/11 case law focusing, in particular, on the Belmarsh detainees decision of the House of Lords and the subsequent judgment on the same matter of the European Court of Human Rights in Strasbourg. The central aim of the chapter is to assess whether, and to what extent, the derogation clauses remain adequate in an era of international terrorism and in the context of a state of permanent legal emergency.

THE RENAISSANCE OF NON-REFOULEMENT? THE OTHMAN (ABU QATADA) DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v United Kingdom . 1 Abu Qatada, a radical Muslim cleric once described as ‘Osama bin Ladens right-hand man in Europe’, was convicted in absentia in Jordan for various terrorist offences. 2 He alleges, however, that part of the evidence against him had been obtained under torture. In 1994 he was granted refugee status and permitted to remain in the United Kingdom (UK) temporarily. Qatada later applied for indefinite leave to stay. While his application was pending, he was arrested in October 2002 and detained without charge or trial under the now-repealed Part 4 of the Anti-terrorism, Crime and Security Act 2001. In March 2005 he was released from detention and put under a ‘control order’ under the Prevention of Terrorism Act 2005. A few months later, the UK government sought to deport Qatada to his native Jordan, having first concluded a Memorandum of Understanding (MoU) with the Jordanian government that he would not be subjected to torture or ill-treatment contrary to Article 3 of the European Convention on Human Rights (ECHR). The deportation order was challenged before English courts, but ultimately upheld by the House of Lords in RB (FC) and Another v Secretary of State for the Home Department and OO v Secretary of State for the Home Department in 2009. 3 In contrast, the ECtHR ruled unanimously that the UK could not lawfully deport Qatada to Jordan. The decision was criticized by Home Secretary Theresa May as ‘unacceptable’ and predictably led to several Conservative backbenchers in the House of Commons calling on the government to withdraw from the ECHR. 4

Australia and the Threat of Terrorism in the Decade after 9/11

Abstract In February 2010, the Australian government released its second Counter-Terrorism White Paper, claiming that terrorism continues to pose a serious security challenge to Australia. The article critically re-examines the terrorist threat to Australia and explores the threat posed by the traditional Al-Qaeda leadership, by regional organisations like Jemaah Islamiyah and by so-called ‘home-grown’ terrorists. Arguing that it is imperative to differentiate clearly between the threat to Australia and Australian interests abroad, the article identifies the sources of threat in the Australian context. It concludes that neither Al-Qaeda nor Jemaah Islamiyah nor home-grown terrorism poses any significant objective threat to Australia. At the same time it is acknowledged that the subjective perception of the terrorist necessitates the government to develop an effective counter-terrorism strategy. However, given that the terrorism threat is objectively low, policy measures addressing the threat ought to be carefully designed to meet the requirements of proportionality and (potential) effectiveness.

Legal and Regulatory Approaches to Counter-Terrorist Financing: The Case of Australia

This chapter examines Australia’s Counter-Terrorism Financing/Anti-Money Laundering (CTF/AML) measures and situates them within Australia’s broader (legislative) response to terrorism. It examines how Australian federal law criminalises the financing of terrorism and considers the key legislative changes enacted between 2002 and 2014. It then focuses on proceeds of crime legislation which plays a complementary role to the CTF/AML offences. The chapter also provides an account of the key features of Australia’s oversight and reporting mechanisms which are associated with the criminal and asset recovery regimes. It argues that Australia’s framework for criminalising the financing of terrorism is overdue for comprehensive reform.

The Competence of the Security Council under the UN Charter to Adopt Sanctions Targeting Private Individuals

This chapter focuses on the imposition of sanctions as a tool to regulate the behaviour of private individuals considered to be a threat to international peace and security. Its central aim is to critically examine the Councils emerging practice of adopting sanctions against private individuals. The shift of governance functions from States to international organizations and the rise of non-State actors as key players in the international system have presented the Security Council with significant challenges. The chapter focuses on the classic instrument of sanctions and its adaptation to target private individuals considered to be a threat to international peace and security. There are strong arguments to suggest that this principle also constrains the Councils powers to sanction private individuals. The UN Charter as well as general international law provides for various limits to the Councils enforcement powers. Keywords:international law; international peace; international security; UN Charter

The triviality of terrorism

This article finds that the Australian governments perception of the threat of terrorism continues to be fundamentally flawed. Suggesting that it is imperative to clearly identify the sources and targets of the terrorist threat, the article concludes that terrorism does not pose an existential or even major objective threat to Western liberal democracies like Australia. At the same time, the political and psychological sensibilities surrounding terrorism, in combination with public demands for action, may require democratic governments to respond. Any response, however, needs to be carefully calibrated to meet the requirements of proportionality and (potential) effectiveness.