Connecting the Dots between the Lone Wolf and ISIS

Alan Greene, Durham University

While the magnitude of the attack on people enjoying a Saturday evening out in London on June 3 was not on the same scale as the carnage wrought on Manchester the previous month, terrorism and fear of terrorism is not just about the body count.

If what scared the public and motivated politicians most was simply an actuarial risk-assessment exercise, we would be far more afraid of road accidents – or domestic violence, which 432 people (mostly women) lost their lives to in the UK between April 2012 and March 2015.

Rather, what makes terrorism such a visceral and emotive phenomenon is that it is, essentially, political violence. Terrorism courts publicity. It is about the “propaganda of the deed” and using violence to communicate a political message.

The form of the Manchester attack was particularly striking given its use of explosives and the targeting of mostly young teenage girls – a particularly vulnerable section of society – at a concert. But such attacks have become rare in the UK due to a multitude of surveillance and security powers and the cooperation of local communities. Instead, it seems, “low-tech” attacks that use vehicles and knives are on the rise, exploiting the banality of the objects they employ as weapons to avoid arousing suspicion.

Yet these low-tech attacks also seek to send a message. Terrorist attacks are designed to communicate strength through the use of shock tactics.

Islamic State (IS) propaganda is replete with militaristic images, and seeks to recruit followers to join its supposedly massive, well-equipped army. Ironically, low tech attacks should fail to do this – and communicate the exact opposite. They are an express admission that the individual terrorists do not possess the technical capabilities or resources to carry out other, more sophisticated forms of attack. So why then are these low-tech attacks not conceptualised as a sign of weakness?

The lone wolf needs a pack

Following the March attack on Westminster, Prime Minister Theresa May appeared on national TV to reassure the public that one man with a car and a knife would not silence democracy. Of course, he can’t. One man with a bomb in Manchester and three with knives in London could not do so either.

The following day in a speech to Parliament, the Prime Minister again stressed that the attacker acted alone; however, she then in the same speech described the attack as “an attack on free people all over the world”. In so doing, the Westminster attack was framed, not as the actions of a lone individual, but as part of a global trend of similar attacks. Connecting the dots between each so-called “lone wolf” magnifies the threat of IS – and the individuals who claim allegiance to it – increasing their perceived capabilities to “sow terror”.

Given this extra oxygen of publicity, these attacks act as either an inspiration for other copycat attacks or as a recruiting tool for IS. The lone wolf needs IS to give their actions meaning and to magnify their impact beyond the immediate “ground zero” of their attack. Without it, the attacker is just that: a killer with a car and a knife. Similarly, IS needs the lone wolves to demonstrate to the world that their reach extends their immediate sphere of influence. The lone wolf needs the pack as much as the pack needs the lone wolf.

In reality, however, there may be no real communication between IS commanders in the territory they hold in Iraq and Syria, and the attacks they inspire. In fact, there may be no link at all except for that which exists in the minds of attackers; a link that is reified by our willingness to attribute their actions to IS. In turn, we send a signal to other would-be attackers that they too will be elevated to the status of IS fighter in the minds of the public should they decide to carry out similar atrocities.

Certainly, the modus operandi of the London Bridge attack looked like previous attacks attributed to IS – for example, in Nice, France in July 2016 and at a Christmas market in Berlin, Germany in December 2016. The attack also bore a striking resemblance to that carried out by Khalid Masood on Westminster Bridge in March. That attack was also attributed to IS in the popular press yet, to date, the police have found no link between any terrorist organisation and Masood.

IS also claimed responsibility for an attack on a casino in the Philippines on 2 June that left 37 people dead. It subsequently transpired that this attack had nothing to do with IS at all. Why then are we so eager to attribute every possible terrorist attack to IS?

Politicians and the media take great pains to label IS as “so-called Islamic State” or “Daesh” so as not to legitimise it. Yet any reticence to label an incident as terrorist and linking it back to IS is wholly absent. So the group that is supposedly “delegitimised” by being referred to as “so-called” is then, often in the same sentence, aggrandised as capable of carrying out terrorist attacks across the globe, far beyond the territory under its control.

How to fight back

In light of this, what response is needed? Much like terrorism itself, counter-terrorist responses are very often about symbolism and communicating a message, too. Counter-terrorism is about the state seeking to reassert itself and reassure its citizens following a demoralising attack. Often it is unclear whether these measures will make us any safer. Indeed, the more extreme measures may even be counter-productive as evidenced by the use of internment in Northern Ireland, which ravaged community cohesion and acted as the single biggest recruitment tool for the IRA.

Following the Westminster attack in March, Home Secretary Amber Rudd called for new powers for security agencies to access private communications such as WhatsApp which are currently protected by end-to-end encryption. Then on Sunday, Theresa May proposed a new plan centred on tackling online extremism. The difficulty is, however, that there is zero evidence at the present time suggesting that such measures would make us safer.

Low-tech attacks that use knives or vehicles demonstrate that laws surrounding the possession of fire arms or materials that could be used to manufacture explosives are more than sufficiently robust. It is difficult to see therefore what new laws, if any, the UK could enact. This is not to say, however, that we, as a society, are hopeless to confront these attacks.

There may certainly be a case for more resources for police and security services to enable them to make use of the resources they have. However, this is not a point I wish to argue here. Rather, perhaps the one thing we should all agree to do is refuse to connect the dots for IS.

The ConversationWe should refuse to aggrandise both them and the attackers that have committed these heinous atrocities, instead framing the events as the criminal actions of lone individuals. In turn, we should avoid polarising language about engagement in a war of civilisations. Such talk simultaneously divides society in the manner that IS seeks to do while also aggrandising IS into a threat that is capable of challenging our way of life.

Alan Greene, Lecturer in Law, Durham University

This article was originally published on The Conversation. Read the original article.

Fake News: The ‘Meta’ Moral Panic?

Fake News

Following Brexit in the UK and Donald Trump’s election in the US, the term ‘fake news’ has entered into everyday vocabulary. We are now, supposedly, living in a post-truth society where facts can be countered with alternative facts and there is no right answer to anything. While there are genuine concerns about the accuracy of much of the so-called ‘news’ that many people share on the internet, the reaction has, nevertheless, been one of textbook moral panic. In turn, by reacting and framing the issue in this manner, much of the media has missed the point completely, avoiding any critical self-reflection and letting itself off the hook.

What is a moral panic?

The term ‘moral panic’ was coined by Stanley Cohen to refer to the media portrayal of rival youth culture groups the ‘Mods’ and ‘Rockers’ in 1960s Britain. Cohen defined a moral panic as ‘a condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests.’ Key to a moral panic therefore is the media conception and framing of the condition, group, or episode. This framing is centred on a ‘folk devil’ the group of people or thing labelled and ‘othered’ as abnormal; as a new threat to the established order of society.

Moral panics don’t just end with op-eds in national newspapers imploring people to ‘please think of the children’. They can effect genuine legal, political and societal change. Textbook examples range from the British Dangerous Dogs Act 1991 enacted following a number of high profile dog attacks on children, to section 6 of the Irish Non-Fatal Offences Against the Person Act 1997 which outlined the specific offence of syringe attacks despite the fact that such attacks were covered by the general offence of assault contained in sections 2-4 of the same Act. Again, a series of high-profile attacks involving syringes containing allegedly contaminated blood was the primary motivation behind the section with the government bowing to media pressure and the all-important ‘we must be seen to be doing something’.

Moral panics can have even more wide-ranging impacts than these examples. The killing of Jamie Bulger and the subsequent media uproar led to an express change in penal policy from the then Conservative Government, egged on by a Labour Party pledging to be ‘tough on crime; tough on the causes of crime’. This resulted in the most rapid increase in the British prison population in history at a time when the crime rate was falling. Similarly, many counter-terrorist initiatives can be considered to be enacted in contexts that are symptomatic of a moral panic. Moral panics therefore can have a profound effect on government policy and the law.

Fake News as a Moral Panic

Following both Brexit the election of Trump, the media began to discuss this ‘new’ phenomenon of fake news. Fake news, we are told, threatens our democracy to such an extent that it resulted in a Parliamentary Inquiry by the Culture, Media and Sport Committee into ‘fake news’ in the UK. The fake news moral panic centred on non-traditional media sources such as emerging news websites and the sharing of these stories on social media platforms such as Facebook or Twitter. In the context of Trump, focus was on websites such as Breitbart, The Drudge Report and InfoWars. That was until Trump appropriated the term for himself with his ire directed firmly against CNN.

The fake news moral panic was, in essence, a media panic about itself— a meta-moral panic; an existential crisis. However, as most moral panics pan out, the folk devil identified was ‘othered’ significantly. In the context of Trump, some fingers of blame were even pointed at Macedonia which, apparently, became a hotbed of different networks churning out fake story after fake story. What was completely absent from all of this was any critical self-reflection of these traditional media forms on their own content.

This is not to say that ‘fake news websites’ are not a problem. Of course they are; however, more traditional media sources also need to engage in some critical self-reflection. Many ‘mainstream’ media outlets during the Brexit campaign carried stories that were verifiably false.

Stories may also be run that are not ostensibly ‘fake’ in the sense that they deal with deliberately fictitious stories with no basis in fact. Rather, a fact, or a particular interpretation of a fact is presented and the subjective framing of the story is stressed to such an extent that it becomes difficult to identify the objectivity of the story from the subjective opinion. Thus Brexit was not won by obscure clandestine news outlets that nobody had heard of. The agenda was instead set and dominated by the traditional right-wing press of Fleet Street. This was anything but a new phenomenon with research on the 2015 General Election indicating the exact same thing. That stated, we’ve all had quite enough of experts, thank you very much.

Relatedly, while some media outlets have a clear editorial bias, this can infect even those that claim to be impartial. A campaign has recently been launched arguing that the BBC should drop its ‘review of the papers’. Key to this campaign is the idea of how a story is framed and how this shapes and influences the news agenda for the day. In this regard, the BBC is not being expressly or intentionally biased; rather, the manner in which the right wing press is able to spread its subjective framing of the issues beyond its primary readership puts the left on the back foot across all platforms.

The quest for impartiality can even result in extremist voices being given a platform all in the name of balance. The Irish Times, for example, was widely condemned for running an op-ed on the terminology used by the alt-right which was written by a member of the alt-right. Those defending the article reverted to simplistic free speech arguments, while others resorted to calling those who were offended ‘snowflakes’. That snowflake, and ‘alt-right’, both term coined by far-right groups have now entered the popular lexicon shows how impactful a classic mainstream platform can be.

There is nothing new therefore about ‘fake news’. What is new, however, is the manner in which we consume these stories and the emergence of a ‘folk devil’ sufficiently ‘other’ to the mainstream establishment that can be blamed for the phenomenon.

Combating ‘Fake News’

At the outset of the 2017 British General Election campaign, Facebook launched a series of adverts highlighting ‘fake news’ and the importance of checking the veracity of the source in question. How will this team deal with stories that are open to interpretation, however, remains to be seen. The Guardian recently ran a story on the team; however, focus again was on a specific story from one of these ‘folk devils’—a so-called news website called YourBrexit.co.uk which was written by a 19-year old teenager in Southend.

It will be interesting to see whether such Fact-checking initiatives target more mainstream news outlets. For example, fabricated stories surrounding the operation of human rights law in the UK abound. Theresa May’s widely reported comments concerning the case of a man could not be deported because he owned a cat was nothing less than fake news. Inaccurate reporting can also occur through the manipulation of statistics. For example, much of the right wing press ran a story about how the European Court of Human Rights found against the UK in 75% of cases. This figure, however, was reached by excluding the vast majority of cases against the UK which the European Court of Human Rights found to be inadmissible. When these cases are rightly included, the UK wins 99% of the time.  Will such stories be caught by these fact-checking initiatives? The result may that these stories continue to be shared and the root causes of misinformation go unchecked. Instead, the ‘fake news’ moral panic may targets the scapegoat, leaving the dominant voices unchallenged.

Finally, while this initiative may, on the face of it, seem like a good thing, in the context of a potential Zuckerberg 2020 campaign and our understanding of how Facebook data was used to target specific political advertisements at certain people to influence both the US Presidential election and the 2016 Brexit vote, the ‘fake news checking team’ becomes much more sinister. There is a clear potential conflict of interest between an independent fact-checking initiative telling Facebook users what news stories they can trust and the owner of Facebook’s own political ambitions.

Image Credit: http://bit.ly/2ralWeO Hrag Vartanian

General Election 2017 and the Conservatives’ Plans to Derogate from the ECHR for British Armed Forces Overseas

 

ECtHR

The European Court of Human Rights

Since Theresa May’s decision to call a snap General Election, there has been speculation as to whether the Conservative Party’s manifesto will contain a commitment to repeal the Human Rights Act 1998 (HRA) and replace it with a British Bill of Rights. What we are less likely to see is a commitment Theresa May’s preferred course of action on human rights—complete withdrawal from the European Convention on Human Rights (ECHR).

That stated, the Tory Party’s manifesto may contain a proposal that could set up an inevitable showdown with the European Court of Human Rights (ECtHR): a plan to provide for a ‘presumption to derogate from the ECHR for UK armed forces overseas.’ The Joint Committee on Human Rights (JCHR) was in the process of an inquiry into the legality of these proposals; however, this will come to a halt before any recommendations will be made due to the snap General Election. My full submission to the Inquiry is available here. For the present purposes, I want to highlight my key concern as to why the proposals are not compatible with the ECHR and why this may be setting the stage for a full scale withdrawal from the Convention and the jurisdiction of the ECtHR.   

Key problems with the plan: Threatening the life of the Nation

My main concern with the plan is that the overseas armed conflicts that the UK will be engaged in will not amount to a state of emergency under the meaning of Article 15 ECHR. Article 15.1 ECHR states as follows:

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 its other obligations under international law.

The key requirement in Article 15 therefore is that there must exist  ‘a war or other public emergency threatening the life of the nation’. While the ECtHR has been incredibly deferential on this question and has never, to date, found that an emergency did not exist in a state that had declared one, the case law on this question  concerns declared emergencies within the Contracting Party’s territory. They do not refer to derogations made in an extra-territorial context. Indeed, no state has ever derogated from a human rights treaty in an extra-territorial setting. These overseas armed conflicts or military operations that the UK armed forces are engaged in must ‘threaten the life of the nation’. On this issue, Lord Bingham in R(Al-Jedda) v Secretary of State for Defence remarked that:

It is hard to think that these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw. The Secretary of State does not contend that the UK could exercise its power to derogate in Iraq (although he does not accept that it could not). It has not been the practice of states to derogate in such situations, and since subsequent practice in the application of a treaty may (under article 31(3)(b) of the Vienna Convention) be taken into account in interpreting the treaty it seems proper to regard article 15 as inapplicable.

While the ECtHR does not object in principle to extra-territorial derogations, it is difficult therefore to see how conflicts in Afghanistan, Iraq, Libya or Syria could threaten the life of the UK nation. An argument could be made that overseas deployment of British armed forces is in fact necessary to protect the life of the nation; for example, a key justification for the UK’s invasion of Iraq was on the grounds that Saddam Hussein posed an imminent threat to the UK. Such claims would, however, be reviewable by the ECtHR. In light of the experience of the Iraq War, one would hope that a more critical approach to the Government’s claim as to possessing special intelligence pertaining to national security would be taken by the ECtHR.

Lord Bingham further highlighted in Al-Jedda that as the state voluntarily embarked on an overseas military operation from which it could withdraw [the Iraq War], the voluntary nature of such a conflict could not be considered to amount to a ‘threat to the life of the nation’. This reasoning has been criticised by Professor Marko Milanovic, on the grounds that ‘Ireland and the UK could also have given in to the IRA’s demands and thus had averted or mitigate the public emergency. And so could any other state that derogated due to an internal problem.’ Milanovic’s criticism of Lord Bingham’s judgment, however, depreciates the concept of ‘necessity’ in Article 15 and states of emergency more generally.  Although the word ‘necessary’ is not expressly mentioned in Article 15, ‘necessity’ is a fundamental concept that justifies provisions for declaring a state of emergency in international human rights treaties and constitutions. Derogations under Article 15 must be ‘necessary’ in the sense that they must ‘protect the life of the nation’ rather than being necessary in order to permit the government to undertake the steps they wish to take. Necessity does not mean that the government has ‘no choice’; rather it means that there is such a constraint in choice due to the duress of circumstances that the Government experiences that it has to choose between ‘the lesser of two evils’. Hence, it must sacrifice its ordinary commitment to human rights in order to prevent the greater evil— the threat to the life of the nation— from coming to fruition. The concept of necessity therefore conveys a degree of objectivity in the choice that the Government is taking; however, there will, invariably, be subjective factors at play to determine the best course of action to take. Nevertheless, the degree of objectivity regarding the existence of a state of emergency is often reflected in the fact that there is a convergence of opinion between the Government and opposition in times of crisis that an emergency exits. In contrast, it is difficult to see how such a degree of objectivity could be gleaned from recent decisions to deploy UK armed forces overseas, for example in Iraq and recently to undertake military operations in Syria. Both decisions followed divisive parliamentary debates and in the case of the former, mass public opposition to the decision.

Separating ‘war’ from ‘other public emergency threatening the life of the nation’?

An alternative approach may be for the UK to argue that as Article 15 allows for derogations ‘in time of war or other public emergency threatening the life of the nation’, only the latter of these two conditions—‘public emergency’— needs to ‘threaten the life of the nation.’ According to this argument, any war, regardless of whether it threatens the life of the nation, would result in conditions under which a state could lawfully derogate from the Convention.

There are a number of difficulties with this argument, however. To date, the ECtHR has not been required to pronounce upon the meaning of ‘war’ under Article 15.  Moreover, the UK does not generally declare war in the deployment of armed forces overseas. Indeed, the very phrase ‘war’ is problematic given that it has fallen out of use in international law with the terms ‘international armed conflict’ or ‘non-international armed conflict’ being preferred. War therefore is a somewhat archaic term. Milanovic thus argues that ‘war’ in Article 15 could be subject to three separate interpretations:

  1. As a reference to the technical legal concept of ‘war’ as it existed in classical international law;
  2. As a reference to the modern concept of international armed conflict, which is like ‘war’ inter-state in nature but is objective and factual, and was indeed meant as a replacement for ‘war,’ with perhaps the addition of belligerent occupation as a sub-species of international armed conflict ;
  3. As a reference to any type of armed conflict regulated by contemporary IHL, thus including both international and non-international armed conflict as well as occupation and possibly any third type of armed conflict if it ever evolves through custom or is created by treaty.

As there is no guidance from the case law on this issue, any of the three interpretations may be followed. If interpretation (c) were followed, separating ‘war’ from ‘public emergency threatening the life of the nation’ could, for example, legitimate derogations from the Convention in international and non-international armed conflicts that did not ‘threaten the life of the nation’. It would merely be for the Court to assess whether such an international or non-international armed conflict did exist. Again, this argument has not been litigated before the Court; however, the Council of Europe’s own guide to Article 15 conceptualises war at the upper end of the scale of what constitutes a state of emergency with ‘any substantial violence or unrest short of war…likely to fall within the scope of the second limb or Article 15.1, a “public emergency threatening the life of the nation.”’ This interpretation is in line with other international human rights treaties.

Under this understanding of Article 15, a ‘war’ or armed conflict can only justify a derogation under Article 15 if it ‘threatened the life of the nation’. To parse ‘war’ from ‘public emergency threatening the life of the nation’ would be a fundamental misinterpretation of Article 15. ‘War’ is not just an illustrative example of a public emergency threatening the life of the nation; it is a ‘core’ or paradigmatic example of this. The phrase ‘Public emergency threatening the life of the nation’ subsequently expands Article 15 to conditions falling short of this. To interpret war as amounting to a phenomenon that does not amount to a ‘threat to the life of the nation’ is to flip Article 15 on its head, making war the term in Article 15 that expands its application and the phrase ‘public emergency threatening the life of the nation’ the limiting aspect of Article 15. Consequently, ‘war’ under Article 15 must be considered a ‘core’ example of a phenomenon that can amount to a ‘public emergency threatening the life of the nation’. Thus if the actions of British armed forces overseas are not engaged in an armed conflict that ‘threatens the life of the nation,’ then the state cannot lawfully derogate under Article 15.

‘The nation’

A further argument may be to interpret ‘the nation’ to mean not the UK but rather the state or community in which the armed conflict is taking place. Again, there is no case law on this issue and it would be difficult to reconcile this argument with principles laid down by the ECtHR in Lawless v Ireland that an emergency must affect ‘the whole population and constitutes a threat to the organised life of the community of which the state is composed.’ It would also be difficult to reconcile with the statement of the European Commission of Human Rights in The Greek Case that an emergency should ‘involve the whole nation’.

It may be argued that the own ECtHR’s jurisprudence on this issue may itself be irreconcilable with these statements. For example, that the IRA only posed a threat to Northern Ireland as distinct from the UK as a whole, or that Turkish derogations regarding the PKK and Kurdish political violence related to specific areas in Turkey in which there is a substantial Kurdish population. Although these emergencies may be conceptualised as ‘local’, in actuality, they affected the territorial integrity of the entire state. This point was acknowledged by Lord Hoffmann in the Belmarsh Case who believed that al Qaeda did not threaten the life of the UK nation although the IRA did. Moreover, the conflict in Northern Ireland did have a ‘spill-over’ effect to the rest of the UK with attacks being carried out, for example, in Birmingham, Brighton, and Guildford. Events of The Troubles even spread as far as Gibraltar.

‘Presumptive’ Derogations?

A final difficulty with the Government’s proposal is the very idea of a ‘presumptive derogation’ itself. The UK’s armed forces may certainly be engaged in an overseas armed conflict that may amount to a threat to the life of the nation; however, each armed conflict or deployment of troops overseas must be assessed on its merits in order for a derogation to be justified under Article 15. It appears that the Ministry of Defence is acutely aware of this as it has stated that there will be an intention to derogate only if it is ‘possible in the circumstances that exist at the time’. If this is true, it raises the question of what, if anything, is novel about this proposal, save for the fact that it would be the first time a state derogated from a human rights treaty on the grounds of an extra-territorial conflict. In essence, it would not be ‘presumptive’ as the Government would still have to undertake the necessary assessment as to the conditions warranting the justification of a state of emergency and communicate this decision to the Secretary General of the Council of Europe in accordance with Article 15.3 of the Convention.

Conclusions: An inevitable Clash?

In conclusion, it is difficult to see how the outgoing Government’s proposals, vague as they are at present, can reduce judicial scrutiny of British armed forces overseas. What is foreseeable, however, is that the Government’s proposals may lead to a clash with the ECtHR. During the 2016 Brexit campaign, Theresa May was what could be best described as a ‘soft’ Remainer, keeping a low profile throughout. Her most prolific contribution to the Remain campaign was to argue for staying in the EU and instead repeal the ECHR:

‘…if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.’

While the UK has clashed with the ECtHR before, most notably over the issue of prisoner voting, using such a minor issue as grounds for leaving the jurisdiction of the ECtHR may not prove that popular, notwithstanding the Daily Mail’s best efforts. What may provide more attractive political ground would be leaving the ECtHR on a judgment of the ECtHR framed as hampering “Our Boys Overseas”. In turn, this could further encourage other states with express hostility towards enforcing ECtHR Court judgments such as Russia and Turkey to maintain or increase their intransigence.

Image Credit: Outlyndos[YM]  http://bit.ly/2oBqiJ7