Should the BBC refer to Hamas as terrorists?

Image Credit: https://rb.gy/4fffp

A recently published letter signed by eminent KCs and sent to the BBC argues that the BBC should refer to Hamas as terrorists in its coverage for three reasons: firstly, that their actions satisfy the definition of terrorism contained in section 1 of the Terrorism Act 2000; secondly, that the British Government has declared Hamas a proscribed organization under Schedule 2 of the Terrorism Act 2000; and thirdly, that the media’s refusal to frame Hamas as a terrorist organization is somehow legitimating and, in turn resulting in the BBC “stepping into the arena and taking sides as to describe Hamas in more sympathetic terms.”

Terrorism is such a stigmatising and delegitimising label that after almost every act of political violence there is debate of the use of the term ‘terrorism’. Were the January 6th attacks on the US Capitol terrorism? What about the fire-bombing of an immigration detention centre by a far-right extremist? What about a white supremacist shooting up a synagogue? What about Russia’s invasion of Ukraine? The dispute as to the language used by the media in framing this act of political violence is not new. However, there are some particular legal arguments being used in this debate that do require addressing.

The Definition of Terrorism in Section 1

There are several problems with the argument put forward by the KCs. Firstly, while the authors rely upon the definition of terrorism in section 1 of the Terrorism Act 2000, there is no agreed upon definition of terrorism in international law. Therefore, the definition of terrorism in section 1 is not even the end of the legal debate on whether an act is terroristic or not. Indeed, the difficulty in concretely defining terrorism—in legal or other terms—is notorious; so difficult, in fact, that it has been referred to by some commentators as like the quest for the Holy Grail. Consequently, it does not  simply follow that because an organisation satisfies the British definition of terrorism that the media should be obliged to refer to it as such.

The definition of terrorism in section 1 of the Terrorism Act 2000 is so broad that it captures the actions of any belligerent in an armed conflict directed against any government, regardless of whether the British government is also hostile towards that government.  In short, the British definition makes no distinction between a good freedom fighter and bad terrorist. For instance, any armed group fighting in Syria against the Assad regime, including those groups which the British government gave military and financial assistance to, satisfied the definition in section 1. This has resulted in individuals being prosecuted for terrorist offences upon their return to the UK; however, some trials have also collapsed due to this.

The breadth of the definition of terrorism in Section 1 also potentially captures the actions of several protest groups in the UK. For example, if their actions cause serious damage to property or if they ‘create a serious risk to the health or safety of the public or a section of the public’. Like the issue of returning foreign fighters to the UK, discretion is necessary to prevent perverse application of the section 1 definition. Ultimately, all we can say is that simply because an individual or organisation’s actions satisfy the definition of section 1 is not the end of the matter.

Hamas as a Proscribed Organisation

A stronger argument can be made by virtue of the fact that Hamas is a proscribed organization under Schedule 2 of the Terrorism Act 2000. The KCs’ letter points to BBC ‘Bitesize’ guides where the BBC refers to groups like the IRA and Al Qaeda—which are both proscribed organisations— as terrorist groups and follows this by stating that ‘If the BBC is only declining to use the word “terrorist” in the context of Israel then this is further evidence of partiality (by specifically discriminating in this case only).” However, the BBC also does not refer to the PKK—also a proscribed organisation under Schedule 2— as a terrorist organisation. Instead, it often refers to it as  ‘rebels’ here,  here, and here. But these articles also state that the PKK are considered terrorist organisations by the EU, US, and UK. Likewise, many BBC articles on Hamas clearly state that the UK has proscribed Hamas.

There are more deeper issues, however, with relying on proscription as the basis for arguing that the BBC should refer to Hamas as terrorists. The purpose of proscribing an organisation in Schedule 2 is not to force everybody to henceforth refer to that organisation as a terrorist organisation. The purpose is instead to allow for certain offences to be prosecuted that are contained in section 11—13 of the Terrorism Act 2000. These offences include: membership of a proscribed organisation; support for a proscribed organisation, and the wearing or uniforms or publication of images giving rise to a reasonable suspicion that a person is a supporter or member of a proscribed organisation. There is nothing in Schedule 2 that states that once an organisation is proscribed that it should henceforth be referred to as a terrorist organisation by everybody else.

Legal Arguments in Political Debates

This point about the purpose of proscription is, I think, fundamentally important. Lawyers often think that our legal definitions should shape and frame the language other people use in describing acts. There is some sense to this thinking. Whether something is a crime or not is dictated by law, not vibes. But other terms are simply beyond law’s scope or capacity to control. In thinking that law can frame political or media use of the term ‘terrorism’, we are putting the cart before the horse; in reality, it is the other way around and it is political and media use of the term that shapes the law. Again the example of prosecuting overseas fighters returning from Syria is a case in point. It is not the clear and unambiguous wording of section 1 that distinguishes the bad terrorist fighters for Islamic extremist groups from the ‘good’ freedom fighters that joined other pro-democracy militias. It is prosecutorial and Attorney General discretion making this distinction.

None of this is to detract or somehow mitigate the atrocities committed by Hamas on Saturday.  Personally, I would agree that this indiscriminate killing of civilians appears to be ‘terrorism’ but this different to me insisting that others should use this term too.  An equally legally valid term to use  to describe these atrocities would be to refer to them as war crimes. That language of war crimes and emphasis on international humanitarian law would have the further advantage of being a useful lens to also evaluate Israel’s actions in the conflict. But the BBC—and the media generally— is reticent to use this legal framework as the lens through which to view the conflict.

Ultimately, when defining terrorism in law—and particularly in domestic law— we should focus primarily on the powers and offences that will be dependent upon this definition. We should be less concerned about whether this definition can and should shape political and media discourse. It cannot. In reality, when we make legal arguments to say that an act should be described as terrorism or individuals should be described as terrorists, we are also making subjective political arguments; we are revealing as much about ourselves as we are about what we are describing. Pleading legality is a vain attempt to cloak this argument in neutrality and terrorism is too loaded and too politically useful a term for law to hope to control.  

Human Rights and Suella Braverman: On Kayfabe Island?

Image credit: https://shorturl.at/uHKT9

I am acutely aware of the irony of writing this piece but… should human rights lawyers, practitioners and academics waste any intellectual energy engaging with government criticism of the Human Rights Act (HRA) and European Convention on Human Rights (ECHR)?

Lies about Human Rights

To be clear, I am not referring to critics of human rights making genuine arguments as to the legitimate scope of judicial scrutiny of elected officials. These arguments are, however, at the fringe of the government-peddled narrative on human rights.

Case in point, how much effort has been spent in recent years pointing out that the European Court of Human Rights (ECtHR) does not, in fact, have the power to invalidate British laws? How many pages have been written and submissions sent to various review groups, independent commissions and parliamentary committees pointing out that section 2 of the HRA does not bind British Courts to Strasbourg jurisprudence or that a declaration of incompatibility under section 4 does not affect the validity of legislation? How many times have people pointed out that the ECtHR is not an EU court? How many times have people had to point out—and I’m not making this up— that somebody’s deportation was not stopped because they had a pet cat? Really, is there any point in engaging with a Home Secretary who proclaims that a better name for the HRA would be to call it the Criminal Rights Act?

By engaging with these debates and proposals, are we making a mistake in assuming that the government cares? Or are we merely treating them as bona fides when in reality we know they’re being disingenuous? Does it matter either way?

Kayfabe

In 2016, Conor Gearty called the British debate on human rights a ‘Fantasy Island’. I think we have now moved beyond this. The human rights debate in Britain is more like kayfabe—a term coined by professional wrestling as the idea of presenting staged performances as genuine or authentic. The wrestlers know it’s fake. The audience too knows it’s fake. But everybody pretends that it’s real. Even when the wrestler leaves the stage, they stay in character. They never break the charade. You never break kayfabe.

An increasing number of scholars studying so-called populism are turning to kayfabe as a lens through which to understand the current political zeitgeist. Kayfabe allows politicians to ground reality in a fictional story of their own creation rather than objective truth. The Kayfabe analogy therefore does not stop at human rights discourse. It can apply to all sorts of conspiracy theories the government is hawking—from 15 minute cities to all the non-existent proposals to tackle climate change the Prime Minister announced he was scrapping. If a government is comfortable peddling clearly false narratives, it demonstrates that it doesn’t think that truth matters and this points to something deeply sinister. As Hannah Arendt cautioned:

 the ideal subject of totalitarian rule is not the convinced Nazi or the convinced Communist, but people for whom the distinction between fact and fiction (ie the reality of experience) and the distinction between true and false (ie the standards of thought) no longer exist. So it is for this reason that kayfabe matters and that expressly acknowledging that the government is being disingenuous matters.

And so I fear that attempting to rebut clearly false narratives about human rights does not break the kayfabe. We may think that we are an audience member pointing out that it is fake, trying to convince others that it is fake too; however, I’m not sure that this is right. We are not only stuck watching this fake performance; we are actively participating in it. We are the Wokerati elite. We are playing our part when we pretend that the government and their supporters are open to persuasion. We are pretending that they will be bowled over by our intellectual superiority; that the moral and factual force of our reasoning is irresistible; we pretend that they may have a Damascene conversion and change their minds. But ultimately, we are pretending.

Escaping Kayfabe Island?

So how do we escape Kayfabe Island? Is the solution just to not participate? I deeply resent adding even more words to the ‘human rights debate’. I deeply resent dignifying this discourse by referring to it as a debate. And I cannot help but feel that trying to rebut their arguments through reasons and facts only serves to legitimate them and make it appear like there is actually a genuine debate to be had. Can’t I just opt out? Can’t I just turn off the TV and make it go away?

And at the same time, I understand why people want to make these arguments and try to rebut the government’s falsehoods. After all, surely it’s better to do that than to be silent and let the untruths pass unchallenged? Maybe we convince ourselves that our job is not to persuade the politicians spreading falsehoods—to get the wrestler to admit that it’s all fake— instead, our job is to convince the audience. But this is easier said than done, not least given the British media ecosystem which is more than willing to frame us as playing our Wokerati elite character. And so do we end up ossifying rather than confronting the denigration of human rights?

Maybe our ultimate job is to make the show unwatchable but again, how do we do this? I don’t have an answer. But maybe there is some value in better understanding the human rights debate in the UK in terms of Kayfabe. Maybe this lens will provide us with alternative solutions.

Maybe our only answer to the fake is to insist upon the real but not in a way that has us playing our Wokerati elite character.  The human rights kayfabe has real world consequences. I am writing this in the aftermath of Suella Braverman’s horrific speech to the Conservative Party Conference where she referred to a ‘hurricane of migration’. This is nothing short of fascistic rhetoric and words alone don’t stop fascism.  For many, human rights are a genuine bulwark against state power and those whose rights are at most risk of being abused do not have the luxury of treating this as merely as a performative show. If human rights are to have value, it is in their real world application. We must praxis what we preach. It is through showing people the value of human rights rather than telling them of its value that we can, perhaps, best rebut the anti-human rights narrative.

Alongside this, I don’t think it can hurt to point out disingenuousness when we hear it. We need to stop pretending that it’s real and that certain politicians are being genuine in the arguments that they are making. We need call out their intentional bullshit; not just the bullshit itself, but the person spouting it.

Austria’s lockdown for the unvaccinated: what does human rights law say?

Alan Greene, University of Birmingham

As winter sets in across Europe, COVID-19 cases are beginning to rise, despite the vast roll-out of mass vaccination programmes earlier this year. Austria’s government has pointed the finger of blame firmly at the unvaccinated, announcing a new lockdown only for those who have not had the jab.

Like other pandemic policy decisions, this lockdown raises questions about how far states can take emergency powers, and whether they will violate human rights law in doing so. What might the European Convention on Human Rights say about this particular case?

In justifying his country’s new policy, the Austrian chancellor, Alexander Schallenberg, said: “My aim is very clear: to get the unvaccinated to get vaccinated, not to lock up the unvaccinated.” The move is an attempt to get people to get vaccinated without making vaccination compulsory. In this sense, it may be seen as less intrusive on human rights than compulsory vaccination.

While Austria’s new lockdown is different from earlier lockdowns. by drawing a clear distinction between the vaccinated and unvaccinated, any challenge based on discriminatory treatment is unlikely to succeed. The lack of antibodies against specific disease is not a “protected characteristic” under discrimination law.

Many European states have already introduced compulsory vaccinations for certain sectors such as healthcare professionals and other public sector workers. Notably, in a case earlier this year, the European Court of Human Rights held that compulsory vaccination of children for certain diseases does not necessarily violate human rights.

The case, from pre-pandemic days, centred on the Czech Republic’s requirement that children be vaccinated against nine diseases to be allowed attend nursery school. The court found that this did not violate the right to respect for private life, as the policy pursued the legitimate aim of protecting health and the lives of others. It was also not a blanket ban on unvaccinated children attending school. Additionally, several grounds for exemption were built into the programme and it did not apply to older children who had reached primary school age.

This case therefore means that a compulsory vaccination policy does not, on its face, violate convention rights. But much will depend upon the actual policy in question. Many European states are requiring vaccines on a sector-by-sector basis – which, for those working in sectors where vaccinations are required, presents a stark choice: choose to get vaccinated or choose not to work.

Austria’s new policy may be viewed in a similar vein: choose to get vaccinated, or choose to go into lockdown. This may be the closest we get to mandatory vaccinations, as legally requiring everybody in a state to get vaccinated would probably be practically unworkable.

Whether Austrians now have free choice on whether to get vaccinated is a debate the European Court of Human Rights will be reluctant to get involved in. In the Czech case, the court stated that states have a “wide margin of appreciation” when assessing how best to strike the balance between individual freedom and the greater good. While this does not give states carte blanche, it does mean the court will largely defer to individual states’ views on this issue.

Human rights and the pandemic

The court’s reluctance to interfere can be seen in some of the early human rights cases of the pandemic. Earlier this year, it found a challenge against Romania’s lockdown laws to be “inadmissible” because the Romanian MEP who brought the case failed to show that lockdowns were particularly injurious to him. Lockdowns were, according to the court, very clearly a “restriction”, not a deprivation of liberty, and so did not violate the convention’s right to liberty under Article 5 of the European Convention on Human Rights.

This is not to say that other convention rights may not also be affected by lockdowns. The right to private family life, or the right to freedom of association may be affected. But again it is likely that a wide margin of appreciation will be afforded to states.

It is understandable that courts may not wish to tie the government’s hands behind its back when responding to a crisis such as the pandemic. Lockdowns are a vital response to the pandemic and can even be justified on human rights grounds as protecting people’s right to life. But we may nevertheless be uneasy about courts’ hands-off approach and the legal manner in which lockdowns have been enacted.

In my book Emergency Powers in a Time of Pandemic, I argue that states should have formally declared emergencies in accordance with Article 15 of the European Convention on Human Rights so as to “quarantine exceptional powers to exceptional situations”. This way, any “hands-off” court ruling allowing these exceptional powers cannot be used to justify similar interference of human rights outside the pandemic. For example, ensuring that states do not introduce similar lockdown powers to deal with less obvious threats such as terrorism when there does not exist a “public emergency threatening the life of the nation”.

Whether other states follow Austria’s lead on selective lockdowns is likely to depend on how successful it is in increasing vaccination rates and stopping cases. But the long-term human rights legacy of these powers will not be clear until long after the pandemic has waned.

Alan Greene, Reader in Constitutional Law and Human Rights, University of Birmingham

This article is republished from The Conversation under a Creative Commons license. Read the original article.