It was recently announced that the security measures for this year’s London Olympics will include the deployment of surface to air missiles in the vicinity of the various Olympic venues. Oddly, there has been very little discussion of the implications that these security measures might have for civil liberties or human rights. Unlike the games themselves, these legal issues are important in the wider scheme of things.
Call me cynical, or at least bitter and twisted, if you like. I simply have never seen the point of the Olympic Games, unless one sees it as a continuation of politics through sport (which we now have to assume includes synchronised swimming, (see this YouTube clip), or as a nice little revenue stream for construction companies, fund-raisers, and those successful in their chosen sport, or as a laboratory for the development of new undetectable drugs. With few exceptions, for instance Bannister’s achievement in breaking the four-minute mile, who remembers a world-record-breaking performance once it has itself been broken? This is an investment in ephemera, and the substitution of chauvinistic public emotion for reason and decorum.
So I, for one, am dreading the descent of the Olympics on London later this summer. I shall not be waving flags or cheering the athletes on, and that is not simply because there is no Scottish team. It is bad enough that I cannot look out my office window without seeing the “count-down to the games” revolving around the top of what used to be called the Post Office Tower. It is a constant reminder of dread. A dread which has been increased by the press reports of the enhanced security measures currently being proposed—in particular, the deployment of surface–to–air missiles which some reports claim can down a 747 (see here and here).
Perky army types in uniform have stressed that any decision to use missiles against a threat from the air will be taken not by them on the ground, but rather at the highest levels of government. Security analysts are, of course, claiming that the aim of these draconian measures is to reassure the public and deter potential air attacks.
Oh really? Even if we assume that the current crop of senior UK politicians might be able to make a sensible decision under extreme pressure, I am not at all reassured by the thought that they might entertain the possibility of shooting down planes over central London. And all the publicity that has been given to these extreme security measures might simply give rise to the new unofficial Olympic sport of outwitting security in a spectacular manner. And it too will be televised. Rather than being a deterrent, this might be seen as a challenge—and if an aerial threat were to be posed by, say, a drone, or those intent on a suicide attack, how could these measures deter in the first place? Leaving unmanned aircraft to one side, the question that I have not yet seen discussed is the threat that these measures pose to civil liberties and human rights. Are these, once again, to be swept aside without comment by alleged considerations of “security”? Is this, once again, politicians goading the public into mute acceptance and aquiescent complicity by ratcheting up a climate of fear? Is this just one more step to dystopia?
I must admit that I am surprised that lawyers have been silent because we have been here before. In 2006, the German Federal Constitutional Court ruled that section 14.3 of the 2004 Aerial Security Act was unconstitutional. This provision empowered the Minister of Defence to order a civilian passenger airline to be shot down by the military if it could be assumed that the aircraft would be used to kill others, and that this could only be prevented by shooting it down. (See: N.Naske and G.Nolte, “Aerial Security Law. Case No.1 BvR 357/05. 115 BVerfGE 118″, 101 AJIL 466 (2007); and commentaries in the German Law Journal by O.Lepsius, “Human dignity and the downing of aircraft: the German Federal Constitutional Court strikes down a prominent anti-terrorist provision in the new Air-transport Security Act”, (2006) and F.Muller and T.Richter, “Report on the Bundesverfassungsgericht’s (Federal Constitutional Court) jurisprudence in 2005/2006”, (2008) at 184–193).
The Constitutional Court could simply have based its ruling on a separation of powers issue—that, under the German Constitution, the federal government does not have the power to deploy the armed forces domestically except for defensive purposes against military attacks per se—but it also proceeded to rule that the legislation violated the fundamental rights to human dignity and life guaranteed by the Constitution because:
it allows the armed forces to shoot down aircraft aboard which there are people who are victims of an attack on the security of aviation. This provision is unobjectionable only so far as measures are directed against unmanned aircraft or against those who are responsible for the attack. (para.118: Naske and Nolte translation, 101 AJIL 467 (2007))
The Court ruled that, under the Constitution, human dignity was a value inherent in everyone which the State could not violate, even when acting in pursuit of the right to life:
the duty to respect and protect human dignity generally forbids making any human being a mere object of the actions of the state. Any treatment of a human being by the state that—because it lacks the respect for the value that is inherent in every human being—would call into question his or her quality as a subject, [his or] her status as a subject of law, is strictly forbidden. (para.121: Naske and Nolte translation, 101 AJIL 467 (2007))
In reaching this decision, the Constitutional Court implicitly employed a test of proportionality which requires that the measure under scrutiny must be shown to be pursuing some legitimate end, and the means used to do so must be suitable, necessary and appropriate or fair. The Court found the statutory provision to be disproportionate because it could not achieve the end it claimed to pursue: the information that a passenger aircraft was to be used as a weapon could never be definitive at the time when the Minister of Defence ordered its destruction. This order could only be given on the basis of a presumption, not a certainty, and this could not justify depriving the passengers of their human rights.
When courts attempt to balance issues of security against the values embedded in human rights norms, one may legitimately wonder if judges are attempting the impossible by trying to weigh incommensurables. As the Aerial Security Law judgment demonstrates, however, reliance on factual considerations in assessing the efficacy of a proposed measure evaluates it on the basis of its own assumptions and can avoid or negate a conflict between fact and value. It also throws into relief one facet of cases involving governmental action in response to terrorism and threats to national security: whether these threats exist is essentially a factual, and not a normative, question.
Nevertheless, the judicial scrutiny of national security claims involves inherent difficulties. As Lord Walker of Gestingthorpe observed in the Belmarsh detainees case, this process is:
heightened by the secrecy which necessarily attends most issues of national security…a portentous but non-specific appeal to the interests of national security can be used as a cloak for arbitrary and oppressive action on the part of government. Whether or not patriotism is the last refuge of the scoundrel, national security can be the last refuge of the tyrant. (A (FC) and others (FC) v Secretary of State for the Home Department  UKHL 56, 84, para.193)
No one has apparently claimed that the deployment of surface-to-air missiles as a deterrent measure to “protect” the Olympic Games may be seen as action taken during an armed conflict, for instance, some deemed “war on terror”. Its legitimacy therefore surely falls to be determined by reference to human rights law. What seems to underpin this current proposal is some crude utilitarianism—that it is better to shoot down a plane, inevitably killing those on board, in order to prevent greater casualties on the ground. But two imponderable factors are missing from this calculation. If a plane is shot out of the sky, then the debris has to fall somewhere. In December 1988, when Pan Am flight 103 came to earth in or near Lockerbie, which is a small town in an essentially rural area, there were ground casualties. One should expect that these would be much magnified if a plane were to fall out of the sky over London. But, apart from these unknown secondary ground casualties, there is an even more profound objection to this utilitarian calculus. It entails an impossible comparison. While the deaths of those on board the plane are certain, any ground casualties are contingent—they might be expected, but they are not definite. As the Federal Constitutional Court ruled, at the time when an order to shoot down a plane must be given, the fact that it is to be used as a weapon is conjectural.
As you may gather, I am not reassured by the deployment of these weapons. I also fail to see how this might deter, and worry that it only throws down a gauntlet for an unpleasant television spectacular which would, undoubtedly, unofficially close the London Games.