2012年-CEPS欧洲政策研究中心_Miscarriages_of_Justice_and_Exceptional_Procedures_in_the_‘War_against_Terrorism_11页_121kb

Summary of Miscarriages of Justice and Exceptional Procedures in the 'War against Terrorism'

Core Content

This CEPS Special Report, published in September 2008 by Emmanuel-Pierre Guittet, examines the impact of the "war against terrorism" on judicial procedures, highlighting the tension between security imperatives and the principles of fair trial and justice. The report analyzes three case studies to illustrate how the logic of generalized suspicion and reliance on intelligence data can lead to judicial abuse and miscarriages of justice.

Main Cases and Key Findings

1. Guildford Four (1974)

• Overview: Four individuals were wrongly convicted of bombing pubs in Guildford, England, which were frequented by British soldiers. The IRA claimed responsibility for the attacks.
• Legal Context: The convictions were based largely on coerced confessions and a climate of fear and suspicion, particularly against the Irish community.
• Outcome: The Guildford Four were released in 1989 after 15 years in prison, and the Birmingham Six were released in 1990 after 16 years.
• Key Point: The judiciary in this case deferred to intelligence and police pressure, bypassing the presumption of innocence and the requirement to prove guilt beyond a reasonable doubt.

2. Batasuna (2002)

• Overview: The Spanish government banned the Basque nationalist party Batasuna, citing its alleged connection to ETA.
• Legal Context: The law allowed for the condemnation of political parties that failed to publicly condemn terrorism. This was used to justify the illegalization of Batasuna, which was seen as a political front for ETA.
• Outcome: Batasuna's activities were suspended for three years, with a possible extension to five years. The party was prevented from participating in local elections.
• Key Point: The judiciary used circumstantial evidence and generalized suspicion to justify the condemnation of a political party, blurring the line between intelligence data and probative evidence.

3. Maher Arar (2002)

• Overview: A Canadian citizen was detained and deported to Syria based on false information from the RCMP, leading to his torture.
• Legal Context: The case highlights the lack of accountability in anti-terrorist cooperation between states and the use of intelligence data without due process.
• Outcome: Arar was released in 2003 and a commission was established to investigate the case. The US acknowledged mishandling but kept him on the TerrorWatch list.
• Key Point: The case exemplifies how intelligence-based decisions can override due process, leading to a lack of justice rather than a miscarriage of it.

Main Arguments

• Generalized Suspicion: The war against terrorism has fostered a culture of suspicion, where individuals or groups are considered guilty by association rather than proven guilty through evidence.
• Judicial Deference: Courts have increasingly deferred to intelligence and security agencies, undermining the principle of a fair trial.
• Exceptional Procedures: The use of emergency and exceptional measures has led to a distortion of classical judicial procedures and a legitimization of preventive strategies over proof-based convictions.
• Impact on Justice: These practices have resulted in the erosion of individual rights and the normalization of detention and surveillance without due process.

Key Implications

• The legal system's reliance on intelligence data and the suspension of normal judicial procedures in the name of security has led to significant injustices.
• The concept of a "state of exception" has become a tool for justifying the bypassing of legal norms in favor of political and security objectives.
• The report underscores the need to maintain the balance between security and justice, particularly in the context of counter-terrorism.

Conclusion

The report concludes that the war against terrorism has not only transformed the legal landscape but also created a framework where the rule of law is often suspended in favor of security measures. This has led to a series of judicial failures and abuses, where the logic of suspicion and the primacy of intelligence data have taken precedence over the fundamental rights of individuals.

References

• CEPS Project: The work is part of the EU-Canada project on Justice and Home Affairs Cooperation.
• Key Authors: The report references scholars like Kent Roach, Gary Trotter, David Bigo, and Elspeth Guild, who have analyzed similar issues in different jurisdictions.
• Legal Context: The cases are analyzed within the framework of European and Canadian legal systems, highlighting the transnational impact of the "war on terror" on judicial processes.

Conclusion

The report emphasizes that the war against terrorism has created a legal environment where the principles of justice are compromised by the logic of suspicion and the prioritization of security. Judicial systems, in their response to this new threat, have increasingly relied on intelligence and exceptional procedures, leading to a form of legal distortion that affects the fairness and legitimacy of the judicial process.