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ALRC : Security blanket

Every Issue

Cite as: (2003) 77(7) LIJ, p.90

The debate on international and national security raises many legal and policy issues.

The past decade has seen significant developments in international criminal law, including further international conventions on terrorism and the new enforcement mechanism of the International Criminal Court (ICC). However, it has also seen global trends in the nature of threats to security change from traditional warfare between states to various manifestations of terrorism, including the proliferation of suicide bombing, and biological and cyber-terrorism. In this light, it is important to recognise the limitations of current legal approaches to security as nations and the international community seek to articulate security policy for the future.[1]


Terrorism is the most salient threat to international and national security and the most difficult to define at law. Compounding the existing threat of terrorism are new and emerging terrorist threats such as those posed by cyberterrorism. Cyberterrorism has been defined as unlawful attacks against computers, networks and the information stored on them when done to intimidate or coerce a government or its people in pursuit of political or social objectives.

Most technologically advanced nations have criminalised conduct that would serve as the vehicle for a cyberterrorist attack. In Australia, the Cybercrime Act 2001 (Cth) created a number of offences relating to computer systems. The law is sufficiently broad to embrace both “ordinary” cybercriminality (such as hacking and the release of viruses) and the more serious manifestations of crime that might be identified as cyberterrorism.

It is questionable, however, whether procedural laws are in place that would permit expeditious, real-time investigation of a cyber-terrorist attack. Government agencies are limited by law in their conduct of investigations. For example, while the Australian Security Intelligence Organisation (ASIO) has powers to remotely access computers, the ASIO Act 1979 (Cth) explicitly forbids deletion or alteration of data, or “the doing of anything that interferes with, interrupts or obstructs the lawful use of the target computer by other persons, or that causes any loss or damage to other persons lawfully using the target computer”.

The ICC and terrorism

The ICC was set up by the Rome Statute in 1998 and started operation on 1 July 2002 with Australia as an original state party. Despite last-minute attempts by some nations to revive the idea, terrorism was excluded from the ICC’s jurisdiction. The refusal of the drafters of the ICC Statute to include terrorism was based partially on the absence of a widely accepted, internationally codified definition of “terrorism”, along with the fear that most acts of terrorism were not serious enough to warrant inclusion.

The jurisdiction of the ICC is further limited to crimes which:

  • occur after 1 July 2002;
  • fit the definitions of “genocide”, “crimes against humanity”, “war crimes” and, should a definition be agreed on, “aggression”;
  • are perpetrated by a national of, or on the territory of, a state party; and
  • the state party is unwilling or unable genuinely to investigate or prosecute the alleged offender.

If a major terrorist attack were to occur today, the ICC would possibly have jurisdiction as such an attack could fit the definition of a “crime against humanity” or a “war crime”. However, because the ICC’s jurisdiction is limited to crimes that occur after 1 July 2002, the prospect of the ICC trying those responsible for the attacks on the World Trade Centre and the Pentagon is effectively nil.

Human rights in the wake of terrorism

In addressing terrorism, sovereign states are not entirely unrestricted in making national law. One important consideration is that national law should not derogate from internationally or nationally recognised human rights. For example, legislative changes that ease procedures to allow prosecutions to seize the finances of terrorist organisations or allow the detention of persons with possible information about such organisations, threaten the rights and liberties of citizens and sometimes those seeking to become citizens.

Some commentators have observed that the debate about the human rights implications of the “war against terrorism” has become far too quickly polarised into a debate about human rights versus protecting the security of the civilian population, as if human rights were somehow inevitably at odds with a nation’s security interests. It has been argued that international human rights principles already strike a balance between the enjoyment of particular freedoms and national security. For example, the International Covenant on Civil and Political Rights (ICCPR) provides that some rights can be limited in very specific circumstances.

The ICCPR refers to “times of public emergency which threaten the life of the nation and [which] ... is officially proclaimed”. There are parallel provisions in all major international and regional human rights treaties.

Security within Australia

Another complication is that the power to enact national law in federations is split between the state and federal governments. Security in Australia involves agencies both at the federal level, such as the Australian Defence Force, ASIO and the Australian Federal Police, and at the state and territorial level, such as police services. This raises further issues such as who pays and who is ultimately responsible for security within Australia.

Some analysts argue that global terrorism, especially when involving suicide bombers inured to deterrence, cuts across so many traditional boundaries that it cannot be handled other than by the creation of a wholly new agency. Some believe that appointing a minister for domestic security at Cabinet level will provide unity of command and a single focal point for assessing and developing the wide range of elements that make up comprehensive security from intelligence to public health. A critical element would be public education.

Contributed by the AUSTRALIAN LAW REFORM COMMISSION, GPO Box 3708, Sydney 2001, tel (02) 8236 6333; fax (02) 8238 6363; website

[1] The latest edition of the ALRC journal Reform (Issue 82) brings together articles that highlight various issues related to laws designed to preserve national and international security, including cyberterrorism, the ICC and terrorism, human rights in the wake of terrorism, and security within Australia.


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