Supporting terrorism and the criminal law [updated]

Posted on by Adam Wagner

The criminalisation of support for terrorist organisations has arisen in various domestic and international contexts recently, and it is likely that the issue will continue to attract controversy as states attempt to trace the boundaries of what can fairly be considered “support” for terrorism, and risk criminal legislation unjustifiably infringing on human rights.

The Human Rights in Ireland blog has posted the first in a series addressing the issue (update – the second post in the series is now available, see below). In the post, Dr. Cian Murphy suggests that “One of the most corrosive effects on political freedom during the “war on terrorism” has been that caused by material support legislation.” He goes on to refer to three recent decisions, including the 2008 Kadi case on EU implementation of UN sanctions against individuals linked to the Taleban, al-Qaeda and bin Laden (see ASIL case comment).

We posted recently on the case of Holder v. Humanitarian Law Project in the United States Supreme Court, and asked whether the decision, which many in the US have seen as an unjustified intrusion on freedom of expression rights, could happen here. We pointed out that similar powers already exist in the UK, with Section 12 of the Terrorism Act 2000 providing a fairly wide-ranging prohibition on supporting terrorist organisations.

A growing issue in the UK

The issue of what constitutes “support” for terrorist groups has recently arisen in the UK courts, notably in the Bank Mellat case where sanctions were imposed on an Iranian bank suspected of aiding its home state’s nuclear weapons program. In another recent case, M and Others v HM Treasury, the European Court of Justice ruled that social security benefits cannot be withheld from family members of those suspected of being associated with the Al Qaeda terrorist network (see our post). Murphy says of the case:

The ECJ rejected HM Treasury’s argument (which had been upheld in both the High Court and Court of Appeal) that the strict terms of the Regulation caught the social security payments and therefore necessitated the licensing system. The Court noted that different language versions of the Regulation pointed to different interpretations and therefore a strict textual approach was not appropriate. Instead the Court took a purposive approach akin to that of the House of Lords and held that the payments fell outside the scope of the Regulation. In doing so it rejected the argument that by providing for their spouses’ basic needs, the applicants would free those spouses to use other funds for terrorism (any such other funds would, of course, be subject to the sanctions regime). The judgment represents a welcome continuation of the European Courts’ efforts to curtail the worst effects of a sanctions regime that can best be described as an affront to the rule of law.

Murphy says that whilst the decision in M and Others represents a “welcome relaxing of the wider effects of the UN/EU/UK sanctions regime”, the decision of the US Supreme Court in Holder is disappointing:

Holder v HLP on the other hand is a disappointing decision from the US Supreme Court. In addition to the attack on political speech, it explicitly defends the preventive/pre-emptive paradigm of counter-terrorism that has been so damaging to the rule of law:

“The material-support statute is, on its face, a preventive measure – it criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur. The Government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions (page 30).”

A vexed question

The question of what it means to “support” a terrorist organisation will always be a vexed one for legislators and the police. This question is not limited to anti-terrorism legislation; any student of the criminal law will recognise the great difficulties courts regularly face in deciding whether someone can truly said to have aided or abetted a criminal act.

Modern terrorist organisations are clandestine and diffuse, and preventing support can therefore fairly require wide powers. However, with harsh penalties available for those convicted of such offences, authorities must tread very carefully when enforcing such laws, for risk of finding themselves on the wrong end of a court judgment and in breach of human rights law.

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