‘Temporary Exclusion Orders’ and their Implications for the United Kingdom’s International Legal Obligations, Part II

This is Part II of a two-part post, a modified version of a legal opinion submitted to the UK Parliament’s Joint Committee on Human Rights on the proposal to introduce temporary exclusion orders of British citizens suspected of engaging in terrorist activities. Part I discussed the implications of temporary exclusion orders (TEOs) for the UK’s international legal obligations to British citizens. This Part discusses the implications for its obligations to other States.

Responsibility to other States

There is no justification in international law for the exclusion, even temporarily, of British citizens from the United Kingdom. So far as such exclusion engages the legal interests of other States, there may be some scope for agreements with the UK. However, no such agreement can avoid the UK’s international legal obligations towards its citizens – they continue and cannot be outsourced.

The unstated premise of ‘host State’ assistance is, necessarily, the existence of an agreement between the United Kingdom and any such State. The Home Office Impact Assessment on temporary exclusion orders refers briefly and on just a few occasions to ‘host’ States, to describe those which will be expected to carry the burden of the TEO policy, including the risks which presumably accompany harbouring individuals suspected of terrorist associations. The Impact Assessment refers repeatedly to the risk which terrorism might pose to the United Kingdom, but not at all to any such risk to ‘host’ States. Moreover, apart from one reference to discussions with France in relation to juxtaposed controls, neither this document nor any other mentions the necessity for agreements, or considers the elements which might well be considered essential.

For example, no State has the right unilaterally to dispatch police officers or security service personnel to other States for the purpose of investigating alleged offences or questioning suspects. This can only be undertaken with the express agreement of the State in question (Oppenheim, 9^th edn., 385-90, §119).

In addition, it is reasonable to expect that an agreement with another State regarding British citizens denied return to their country will deal with the allocation of responsibility for, among others, accommodation, access to medical services, welfare, counselling and support.

The possibility of detention in a host State has been mentioned, for example, at the request of the United Kingdom (Home Office Impact Assessment, 5). The costs of such detention are not included in the Home Office Impact Assessment, but they would certainly fall on the UK. Moreover, just as Australia is responsible for the manner in which refugees and asylum seekers are treated in Nauru and Papua New Guinea, where they have been transferred after interception or rescue at sea and in return for substantial subvention, so will the UK be liable for any mistreatment, denial or violation of the human rights of its citizens who may be detained in third countries, either at the request of the UK, or because they are in an irregular situation following ‘cancellation’ of their British passports. (It cannot be assumed that, even within the European Union, conditions of detention will necessarily conform to ECHR standards; see, for example, A. E. v Greece; Efremidze v Greece. On the basis of the information regarding proposed practice presently available, it cannot be excluded that British citizens will be abandoned and denied travel possibilities, not in a ‘liberal’ host State ready to assume the necessary responsibilities, but in a territory in turmoil, where they may be at daily risk, not just of destitution, but of danger to life and limb.)

The host State, in turn, would be jointly liable with the UK for violations by the latter of the detainee’s substantive and procedural entitlements. At the least, as the European Court of Human Rights held in El Masri v The Former Yugoslav Republic of Macedonia, the host State, if party to the European Convention, will have very distinct responsibilities to ensure that the conduct of UK agents and officials within its territory conforms with the ECHR. (Recent and ongoing litigation in the UK may well induce a measure of caution among potential host States; cf. Belhaj v Straw [2014] EWCA Civ 1394; Rahmatullah v Ministry of Defence [2014] EWHC 3846; on liability in damages for detention, see Iraqi Civilians v Ministry of Defence [2014] EWHC 3686).

In addition to doubts about shouldering the material costs of ‘hosting’ an excluded British citizen, the State concerned may also be wary of the possible compromise to its own compliance with international law that could follow from ceding to the UK’s request that it accommodate a British citizen allegedly involved in or associated with terrorist activities. The Home Office Impact Assessment make frequent reference to the risks which terrorist activity may pose to the UK, but none at all to the risk which other countries may face consequential on the UK’s refusal to accept responsibility for, or to admit, its citizens.

Responsibility to the international community of States when combatting terrorism

The threat posed to the international community of States by terrorism and terrorist acts clearly demands an international and cooperative approach, rather than unilateral measures. The extent of the United Kingdom’s commitment to such action was highlighted in paragraphs 30-36 of my Opinion of 12 March 2014.

In short, the United Kingdom is party to many treaties dealing with ‘terrorist acts’, which it undertakes to criminalize, to make punishable by appropriate penalties, and to establish jurisdiction, for example, when the alleged offender is a national (1979 International Convention against the Taking of Hostages, the 1997 International Convention for the Suppression of Terrorist Bombings, 2000 International Convention for the Suppression of the Financing of Terrorism). The United Kingdom is also party to the 1998 Statute of the International Criminal Court, the Preamble to which affirms that, ‘the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’, and recalls that, ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes…’

The United Kingdom’s obligations also include taking ‘appropriate measures’ to ensure the presence of the offender or alleged offender for the purpose of prosecution or extradition (Article 9(2), 2000 Terrorism Financing Convention; article 7(2), 1997 Terrorist Bombings Convention; article 6(1), 1979 Hostages Convention). If it does not extradite that person, then ‘without exception whatsoever’, it must submit the case without undue delay to its competent authorities for the purpose of prosecution…’(Article 10, 2000 Terrorism Financing Convention; article 8, 1997 Terrorist Bombings Convention; article 8(1), 1979 Hostages Convention).

Comparable provisions of the 1984 Convention against Torture were considered by the International Court of Justice in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). The Court referred expressly to, ‘the common interest in compliance’ with the Convention, which entitles each State party to make a claim concerning alleged breaches by another State party (para. 69), and emphasised the ‘preventive and deterrent character’ of the obligation to criminalize and establish jurisdiction (para. 75). It added that the State’s obligations, ‘taken as a whole, may be regarded as elements of a single conventional mechanism aimed at preventing suspects from escaping the consequences of their criminal responsibility, if proven’ (para. 91). Moreover, while extradition is an option, ‘… prosecution is an international obligation under the Convention, the violation of which is a wrongful act engaging the responsibility of the State’ (para. 95 (emphasis supplied)). By failing to comply with its obligations under the Convention, Senegal had engaged its international responsibility.

In much the same way, the proposed scheme of TEOs appears likely to lead to a failure on the part of the UK to fulfil, effectively and in good faith, many of its obligations in relation to those who may be alleged to have committed, or otherwise to have been involved in, terrorist-related acts, and to seek to off-load them unilaterally.

In this context, it should be recalled that Security Council resolution 2178 (2014), adopted unanimously on 24 September 2014 and with wide support among other member States, emphasises that any measures which States may adopt to deal with ‘foreign terrorist fighters’ must comply with all their obligations under international law, including therefore its obligations to investigate, to ensure the presence of alleged offenders, and to prosecute (SC res. 2178 (2014), seventh preambular paragraph).

In calling on States to meet the threat, the Security Council stresses not only preventive and criminal sanctions, but also addressing the underlying factors and implementing ‘rehabilitation and reintegration strategies’. It affirms the obligation of States to prevent the movement of terrorists by effective border and passport controls, and encourages the use of ‘evidence-based traveller risk assessment, but ‘without resorting to profiling based on stereotypes founded on grounds of discrimination prohibited by international law’ (Ibid, operative paragraph 2).

What this resolution definitely does not do is to authorise or to require that States deny their citizens their right to return. The resolution focuses on travel from the State of nationality or residence to another State for the purpose of engaging in terrorist acts (Ibid, operative paragraph 6). Nowhere does it suggest that Member States may rid themselves of or deny entry to their own citizens, either permanently or temporarily, for this would be manifestly incompatible with their obligations under international law. ‘Exile’ is expressly prohibited by Article 9 of the 1948 Universal Declaration of Human Rights; in addition, Article 12(4) of the 1966 International Covenant on Civil and Political Rights declares that, ‘No one shall be arbitrarily deprived of the right to enter his own country’. The word ‘exile’ may appear excessive, but the circumstances in which return may be denied and the sanction for unauthorised return (imprisonment) fit well with the historical sense of exile recorded in the Oxford English Dictionary, as ‘enforced removal from one’s native land according to an edict or sentence… the state or condition of being penally banished’. It would also be incompatible with their duty to cooperate with other States to address the threat posed by foreign terrorist fighters (SC res. 2178 (2014), para. 8).