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Fresh Perspectives on the 'War on Terror'

Fresh Perspectives on the 'War on Terror'

Miriam Gani
Penelope Mathew
Copyright Date: 2008
Published by: ANU Press
https://www.jstor.org/stable/j.ctt24hf7j
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    Fresh Perspectives on the 'War on Terror'
    Book Description:

    On 20 September 2001, in an address to a Joint Session of Congress and the American people, President George W Bush declared a 'war on terror'. The concept of the 'war on terror' has proven to be both an attractive and a potent rhetorical device. It has been adopted and elaborated upon by political leaders around the world, particularly in the context of military action in Afghanistan and Iraq. But use of the rhetoric has not been confined to the military context. The 'war on terror' is a domestic one, also, and the phrase has been used to account for broad criminal legislation, sweeping agency powers and potential human rights abuses throughout much of the world. This collection seeks both to draw on and to engage critically with the metaphor of war in the context of terrorism. It brings together a group of experts from Australia, Canada, the United Kingdom, France and Germany who write about terrorism from a variety of disciplinary perspectives including international law and international relations, public and constitutional law, criminal law and criminology, legal theory, and psychology and law.

    eISBN: 978-1-921313-74-5
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgements
    (pp. vii-viii)
    Miriam Gani and Penelope Mathew
  4. Contributors
    (pp. ix-x)
  5. Table of Cases
    (pp. xi-xiv)
  6. Table of Statutes
    (pp. xv-xviii)
  7. Table of International Instruments
    (pp. xix-xx)
  8. Chapter One Introduction: Letters from the Front
    (pp. 1-6)
    Miriam Gani and Penelope Mathew

    On 20 September 2001, in an address to a Joint Session of Congress and the American people, President George W Bush declared a ′war on terror′.¹ He did so, of course, in the immediate aftermath of the events of 9/11, when the United States and most of the world was reeling with shock and horror.

    That address still reverberates for more reasons than the famous declaration of war. It was here that President Bush both characterised the parties to the ′war′ and set the parameters of the combat:

    Our response involves far more than instant retaliation and isolated strikes. Americans...

  9. Part One Identifying the Threat and Choosing the Weapons

    • Chapter Two Islam and the Politics of Terrorism: Aspects of the British Experience
      (pp. 9-26)
      John Strawson

      The debate about the relationship between Islam and terrorism is at a critical stage. While crass Orientalist arguments¹ that Islam is essentially violent have been largely removed from the agenda, the attempt to construct a distinction between moderate and extremist Islam has been revealed as overly simplistic. Since 11 September 2001 (9/11) most governments have attempted to distinguish between Islam as a religion practised by millions and the tiny minority of Muslims who subscribe to an interpretation of Islam that authorises the use of violence against its enemies.² However, this approach fails to engage with the complexities of Islam as...

    • Chapter Three Another Modest Proposal: In Defence of the Prohibition against Torture
      (pp. 27-44)
      Desmond Manderson

      François Marie Arouet was born in 1694 when the Ancien Régime — the iron fist of Louis XIV in the velvet glove of Versailles — seemed insouciant, eternal, and impervious to change. Yet by the time of Arouet′s death in 1778, the Enlightenment had wrought such a destabilising effect upon the old order that it was on the point of collapse. Arouet, writing under the nom de plume Voltaire,¹ was a pivotal figure in the development of modern Western ideas about government and justice. Playwright, essayist, and critic, he was above all a relentless fighter against cruelty and superstition. I...

    • Chapter Four Protecting Constitutionalism in Treacherous Times: Why ′Rights′ Don′t Matter
      (pp. 45-62)
      W Wesley Pue

      The twenty-first century begins obsessed with matters of security and the supposed need to ′trade-off′ security and liberty. So pervasive is this obsession that a recent Hollywood movie, known more for its state-of-the-art special effects and tortured plot lines than for its thought-provoking quality begins, dramatically, with the reading of an Emergency Proclamation.

      The setting is Bermuda, a British overseas possession, in the eighteenth century. Its opening scene portrays a mass hanging, conducted with military efficiency. The victims are an array of hapless souls including men and women of all ages and a pre-pubescent boy. The first words spoken in...

  10. Part Two Preparing the Ground:: Balance, Proportionality, and Public Perceptions

    • Chapter Five Balancing Security and Liberty: Critical Perspectives on Terrorism Law Reform
      (pp. 65-84)
      Simon Bronitt

      Much of the debate post-September 11 (9/11) about expansion of state power to combat terrorism has been framed as striking a balance between security and liberty.¹ The ′balancing approach′, whereby security is reconciled with respect for fundamental liberal rights and values, has been very influential in counter-terrorism law reform in Australia.² As the former federal Attorney-General Philip Ruddock pointed out:

      We don′t live in an ideal world. We live in a world of trade-offs. And now we live in a world where we must accept the costs associated with protecting ourselves from terrorism … There will always be a trade-off...

    • Chapter Six Lay Perceptions of Terrorist Acts and Counter-Terrorism Responses: Role of Motive, Offence Construal, Siege Mentality and Human Rights
      (pp. 85-108)
      Mark Nolan

      This chapter reports data from an empirical study of lay perceptions of terrorist acts and counter-terrorism initiatives in Australia. Relationships were measured between the following independent variables: perpetrator motive, offence construal (how an incident was described by a police spokesperson), siege mentality beliefs (the belief that you are alone in the world and under siege), and human rights beliefs. The measured dependent variables were: perceived blameworthiness of the perpetrator and perceived appropriateness of counter-terrorism initiatives. Measurement of human rights beliefs were also made, including whether participants agreed that violations of civil and political rights were justified in response to a...

    • Chapter Seven The Proportionality Principle in the Context of Anti-Terrorism Laws: An Inquiry into the Boundaries between Human Rights Law and Public Policy
      (pp. 109-124)
      Christopher Michaelsen

      A key question in the political and academic discourse on the legislative response to the threat of international terrorism has been the question of proportionality. While some have argued that the laws enacted to counter terrorism strike the right balance between national security imperatives and concerns for civil liberties and human rights, others have regarded them as disproportionate and as an overreaction.¹ What both sides have in common, however, is that they generally approach the question of proportionality without examining the nature and quality of the terrorist threat and by accepting the executive′s assertion that the threat may warrant a...

  11. Part Three Rules of Engagement:: Beyond the Limits of the Law

    • Chapter Eight More Law or Less Law? The Resilience of Human Rights Law and Institutions in the ′War on Terror′
      (pp. 127-158)
      Andrew Byrnes

      In the years since the events of September 2001 shocked the United States (US) and many other states into the adoption of wide-ranging measures to respond to actual and perceived threats of international terrorism, the deployment of law has been a central part of the design and justification of those responses, as well as of attempts to moderate and restrain their excesses. While legal responses at the international and national levels have only been a part of the array of measures adopted, the volume of law-making that has taken place has been remarkable.¹ At the international level the extent of...

    • Chapter Nine Black Holes, White Holes and Worm Holes: Pre-emptive Detention in the ′War on Terror′
      (pp. 159-188)
      Penelope Mathew

      This chapter explores the use of detention as a response to terrorism in the United States (US), United Kingdom (UK) and Australia. I have chosen to focus on these three countries because it is clear that Australia has taken some leads from the US and UK in this area as a result of its close connections with them. The three countries have obvious cultural connections and they were all members of the ′coalition of the willing′ that invaded Iraq in 2003. It is apparent that detention has become a favoured preventative measure in the ′fight against terror′ in all three...

    • Chapter Ten Forgiving Terrorism: Trading Justice for Peace, or Imperiling the Peace?
      (pp. 189-206)
      Ben Saul

      Despite the unflinching public policy of some states never to negotiate with terrorists, realpolitik sometimes forces states to adopt a less strenuous path. Negotiating with terrorists is sometimes thought necessary to peacefully or humanely end particular terrorist incidents. One example is the Achille Lauro cruise ship hijacking in 1986, where Egypt and Italy attempted to negotiate an end to the crisis (and save the lives of the hostages), while the United States (US) used military force and declared itself ′completely averse to … any form of negotiation′.¹ In contrast, in 1986, US President Reagan secretly agreed to sell arms to...

  12. Part Four Reports from Two Theatres of War:: Legislation, Sanctions and Prosecutions in Europe and Australia

    • Chapter Eleven The European Union as a Collective Actor in the Fight against Post-9/11 Terrorism: Progress and Problems of a Primarily Cooperative Approach
      (pp. 209-234)
      Jörg Monar

      Protecting the security of their citizens is one of the core functions and reasons of being of the modern nation state. In a system like the European Union (EU), where the constituent member states retain full national sovereignty over matters of internal security, the role of EU common institutions in this critical domain is far from obvious. When terrorism first afflicted the European Community member states in the 1970s they responded in 1975 by setting up a loose intergovernmental cooperation framework outside of the partly supranational legal and institutional framework of the European Communities (EC) of the time. This so-called...

    • Chapter Twelve The European Union, Counter-Terrorism Sanctions against Individuals and Human Rights Protection
      (pp. 235-268)
      Gabriele Porretto

      Since 1999, action by the European Union (the EU) as well as by the European Community (the Community or the EC) has been necessary to implement United Nations Security Council resolutions adopted under Chapter VII of the UN Charter, which impose economic measures against ′blacklisted′ persons and corporate entities, in the framework of the so-called ′war on terror′.¹ A list of persons and entities having ties with the Taliban, Osama bin Laden, Al Qa′ida, or their associates, is managed and updated by a Security Council committee set up, inter alia, to monitor states′ efforts to implement the sanctions imposed with...

    • Chapter Thirteen How Does it End? Reflections on Completed Prosecutions under Australia′s Anti-Terrorism Legislation
      (pp. 269-296)
      Miriam Gani

      Much has been written, both in this collection of essays and elsewhere, about the overbreadth of the terrorism offences contained in Part 5.3¹ of the Criminal Code Act 1995 (Cth) (′Criminal Code′).² Likewise, the unwieldy nature and conceptual complexity of the definition of ′terrorist act′ upon which most of the terrorism offences depend has received significant criticism.³ Whilst academic commentary based on the text of both the offences and the definition has abounded, given the few actual prosecutions in this country,⁴ there has necessarily been less scrutiny of how those offences have been dealt with in specific cases.

      As at...

    • Chapter Fourteen Executive Proscription of Terrorist Organisations in Australia: Exploring the Shifting Border between Crime and Politics
      (pp. 297-324)
      Russell Hogg

      A core feature of anti-terror laws enacted throughout the world after the events of 11 September 2001 (9/11) has been the provision for executive proscription of terrorist organisations.¹ This chapter examines the Australian provisions and their use since their enactment in 2002.

      It begins in Part I with a brief account of the background to the legislation. Part II examines in detail the legislative scheme governing the listing of terrorist organisations, including the concept of a ′terrorist act′, the statutory criteria for listing organisations, the definition of an ′organisation′, the listing procedure and the range of terrorist organisation offences. Part...

  13. Part Five Calling a Halt:: The Role of Bills of Rights

    • Chapter Fifteen Strapped to the Mast: The Siren Song of Dreadful Necessity, the United Kingdom Human Rights Act and the Terrorist Threat
      (pp. 327-360)
      Colm O′Cinneide

      The United Kingdom (UK) has a long and complex history of engagement with terrorism and other forms of violence directed at achieving political aims.¹ Acts that might be characterised as ′terrorism′ in contemporary political and media analysis have taken place in the UK as far back as the Fenian bombings of the 1860s. Similar acts occurred during the anarchist scares of the 1890s and 1900s and the repeated Irish Republican Army (IRA) bombing campaigns in Northern Ireland and mainland Britain from the 1950s to the 1990s. Now, the 11 September 2001 (9/11) terrorist attacks on New York and Washington DC...

    • Chapter Sixteen The ACT Human Rights Act 2004 and the Commonwealth Anti-Terrorism Act (No 2) 2005: A Triumph for Federalism or a Federal Triumph?
      (pp. 361-378)
      Andrew Byrnes and Gabrielle McKinnon

      In 2004 the Legislative Assembly of the Australian Capital Territory (ACT) enacted the first modern bill of rights adopted by any jurisdiction in Australia. The Human Rights Act 2004 (ACT) (HRA) which entered into operation on 1 July 2004, is a modest endeavour by comparison with many overseas models.¹ The ACT HRA is a statutory bill of rights closely modelled on the United Kingdom′s Human Rights Act 1998 and is thus not entrenched as a constitutional charter; it incorporates a limited range of human rights (the classic civil and political rights contained in the International Covenant on Civil and Political...

  14. Bibliography
    (pp. 379-412)
  15. Acronyms and Abbreviations
    (pp. 413-414)
  16. Index
    (pp. 415-420)