The UK government misunderstands international human rights law on terrorism

On 21 November 2024, four UN Special Rapporteurs wrote to the UK Government in relation to reports they had received about the way the UK police, prosecuting and prison authorities dealt with a number of activists who had taken “direct action” by breaking into an Israeli weapons manufacturing hub in Bristol on 6 August of that year, in protest at the Israeli military operations in Gaza (held by the International Court of Justice to “plausibly” constitute genocide). Specifically, they wrote to:

express [their] concern regarding the seemingly unjustified use of counter-terrorism laws against protest activity by political activists in a democratic society, notwithstanding that it involved some alleged violence that should be prosecuted as ordinary criminal offences. Treating “direct action”, albeit involving some violence, as “terrorism” over-states the nature of the conduct and seriously risks chilling the exercise of freedom of expression and opinion and the right to participate in public life, as well as political and public discourse.

(UNSR Ref.: AL GBR 13/2024, p. 3, emphasis added)

 On 24 January 2025, the UK Government responded by means of a Note Verbale (i.e., a diplomatic communication). In it they asserted (with reference to the views of the previous and current Independent Reviewer of Terrorism Legislation) that the UK definition of “terrorism” in the Terrorism Act 2000 “is consistent with international comparators and treaties” and “is kept under regular review”; and that “terrorism powers are complex and challenging, but … well understood, and conscientiously deployed” (p. 5).

Beyond this, the UK did not engage with the Special Rapporteur’s concerns. Rather, it referred to the Crown Prosecution Service (CPS) and quoted the CPS as follows:

The CPS prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales. The CPS is independent and all decisions to prosecute are taken in accordance with the Code for Crown Prosecutors. …

In applying the Code for Crown Prosecutors those who are the subject of the [UNSRs] letter [i.e., the activists – DK] have been charged with several substantive offences: criminal damage, violent disorder, aggravated burglary, grievous bodily harm with intent, and actual bodily harm. In accordance with the Code for Crown Prosecutors, the CPS has decided that there is sufficient evidence to submit to the court that these offences have a “terrorism connection”. We hope this clarifies that the CPS did not decide to downgrade the charges or ‘ordinary offences’, but that the substantive or ‘ordinary offences’ are to be prosecuted with a terrorist connection.

(p. 4, emphasis added)

The reference to the independence of the CPS, and the UK Government’s reliance on a statement by the CPS (rather than providing a statement of its own), are significant. The suggestion is that, since the law is “consistent with [anti-terrorism laws in other countries” (as the UK claims) and is “independently” applied by the CPS, the Government needs not answer the concern expressed by the Special Rapporteurs, that “[t]reating ‘direct action’, [even if it involv[ed] some violence, as ‘terrorism’ over-states the nature of the conduct and seriously risks chilling the exercise of freedom of expression and opinion and the right to participate in public life, as well as political and public discourse.

However, this ignores the clear principle in international law – that also applies to international human rights law – that:

The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

(ILC Article on Responsibility of States for Internationally Wrongful Acts, Article 4(1), emphasis added)

It is to be hoped that the Special Rapporteurs point this out to the UK Government in their reply to the Government’s Note Verbale.

States should not be allowed to hide behind asserted independence of state organs. They must reply in substance to serious allegations, including that the supposedly independent state organs are applying the law in an excessive and repressive manner that threatens fundamental rights.

– o – O – o –

Douwe Korff (Prof.), Cambridge (UK), 30 January 2025

PS I am expecting a further communication to the UK from the UN Special Rapporteurs relating to the abuse of UK anti-terrorism legislation. I will report on that when the communication and response become publicly available.