"Freedom Fighter" not a defence

Via Jurist, I see that the English Criminal Court of Appeal has held in R v F [2007] EWCA Crim 243 that being a “freedom fighter” is not a defence to offences under UK terrorism laws. The defendant, known only as “F”, is a Libyan refugee who was granted asylum in the UK in 2003 after his family was allegedly murdered by Colonel Gaddafi’s regime. F was arrested in late 2005 and charged with possessing two documents useful in furtherance of terrorism, pursuant to s 58(1)(b) of the Terrorism Act 2000 (UK).

The first document consisted of 21 files downloaded from a Jihadist website, entitled “a special training course on the manufacture of explosives for the righteous fighting group until God’s will is established”. The document provided detailed instructions on how explosive devices may be made. The second document was a handwritten document consisting of a “blueprint” for establishing a terrorist cell. It describes a route to Jihad, involving the removal of Colonel Gaddafi from power in Libya and establishing the rule of Allah. It recommends the acquisition of firearms suitable for action within cities and the need “to try to learn to use explosives and mining”.

F denied knowingly possessing the first document, and said that he had the second document from a leader of the Libyan resistance. In the alternative, he argued that he was a freedom fighter against a repressive regime. F’s appeal was dismissed.

I think it is worth quoting from paragraphs [8] – [10] of the judgment:

We shall not attempt to discuss the history of political thought, or the principles of political theory and obligation, as developed in this country and abroad, or indeed to refer to the many important texts included in our papers and referred to in argument. However as the argument advanced it became increasingly clear that, despite the commonality of view that terrorism was detestable, subtle refinements and differences about its true meaning could legitimately arise for discussion. Much thought was given to the right to rebel against a tyrannous or unrepresentative regime. We were shown that John Locke observed in his Second Treatise of Government that the “people” were entitled to resume “their original liberty” when the legislators sought to “reduce them to slavery under arbitrary power”. The United States Declaration of Independence (1776) having identified the famous “self evident” truths, added that “whenever any Form of Government becomes destructive of these ends, it is the Right of People to alter or to abolish it, and institute new Government”. The preamble to the Universal Declaration of Human Rights 1948 acknowledges the possibility of citizens having recourse “as a last resort to rebellion against tyranny and oppression”. Article 1 of the International Covenant on Civil and Political Rights 1966 underlines that “all peoples have the right to self determination”. By virtue of that right they freely determine their political status. We rather doubt whether the authors of these texts would have supported terrorism in its modern form. That said, we were also told that protection is provided in international law for a number of categories of “freedom fighters”, by making it clear that if they avoid “war crimes”, they may be treated as legitimate combatants. If so, violence in a justified cause cannot be said to be the exclusive prerogative of governments.

The call of resistance to tyranny and invasion evokes an echoing response down the ages. We note, as a matter of historical knowledge, that many of those whose violent activities in support of national independence or freedom from oppression, who were once described as terrorists, are now honoured as “freedom fighters”. Others, who continued to use violence to maintain resistance to national enslavement by invading forces, after the official surrender by their own governments, are regarded as heroes and heroines. Those who died in these causes were “martyrs” for them. Indeed we can look about the world today and identify former “terrorists” who are treated as respected, and in one case at least, an internationally revered statesmen. In many countries statues have been erected to celebrate the memory of those who have died in the course of, or have been executed as a result of, their violent activities, but who in time have come to be identified as men and women who died for the freedom and liberty of their countries or their consciences.

Violence, of course, is not the only way. In “Non-Violence in Peace and War” (1942) Mahatma Ghandi posed the question which demands an answer every time violence is used, even in a just cause. “What difference does it make to the dead, the orphans and homeless, whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty or democracy?

That question posed by Ghandi epitomises my own personal ambivalence about terrorism (see my previous post).

It also put me in mind of Good Omens by Terry Pratchett and Neil Gaiman. In it, an angel (Aziraphale) and a demon (Crowley) are trying to stave off Armageddon, during which they have the following conversation:

“Maybe some terrorist-?” Aziraphale began.
“Not one of ours,” said Crowley.
“Or ours,” said Aziraphale. “Although ours are freedom fighters, of course.”
“I’ll tell you what,” said Crowley, scorching rubber on the Tadfield bypass. “Cards on the table time. I’ll tell you ours if you tell me yours.”
“All right. You first.”
“Oh, no. You first.”
“But you’re a demon.”
“Yes, but a demon of my word, I should hope.”
Aziraphale named five political leaders. Crowley named six. Three names appeared on both lists.
“See?” said Crowley. “It’s just like I’ve always said. They’re cunning buggers, humans. You can’t trust them an inch.”
“But I don’t think any of ours have any big plans afoot,” said Aziraphale. “Just minor acts of ter – political protest,” he corrected.
“Ah,” said Crowley bitterly. “You mean none of this cheap, mass-produced murder? Just personal service, every bullet individually fired by skilled craftsmen?”

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2 Comments

Filed under criminal law, law, terrorism

2 responses to “"Freedom Fighter" not a defence

  1. Rich

    It’s been pointed out elsewhere that Gandhi’s philosophy of non-violence worked well against 1930’s Britain – it would not, I think, have worked against the Nazis.

    The trouble with anti-terrorism law is that it’s entirely dependent on governmental fiat. Terrorism equates to “non-governmental combat disapproved of by the prosecuting nation”. Had “F” been part of a pro-western group at a time when Gaddafi was seen as a threat, he would not have been prosecuted.

  2. Legal Eagle

    It’s true, sometimes you can’t just sit idly by and watch injustice occur. But does that mean one has to commit terrorism? To me, terrorism is when someone kills innocent people at random in a cold-blooded way for a political reason (suicide bombing, random shooting, car bombs, flying a plane into a building). I don’t care whether you’re pro-West or anti-West, left or right, or doing it for a particular religion or ideology – it’s all equally as bad in my mind. I just hate the idea of innocents dying in pursuit of “justice” where they have no choice in the matter. I guess the cold-blooded nature of terrorism really freaks me out.

    If F had wanted to go and fight Gaddafi’s government and security guards, I would have less of a problem with his actions – because those people have chosen to be allied with or employed by Gaddafi, and there are consequences in that. That way, there is at least a nexus between the cause and the victims.

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