The Leila Khaled principle- Revisited

One of the most stimulating-and lengthy-debates on Brian Barder's "magisterial" blog was on the post here in June 2005.

This selection  of Brian's post got me and perhaps others going.

Are you seriously saying that in such circumstances ministers should have drawn back from doing what on all other grounds needed urgently to be done, for fear of provoking a terrorist attack in Britain? The Spanish electorate came perilously close to embracing that craven doctrine. I hope that we have a firmer grip on principle.

And the debate soon moved onto whether or not, and if so to what extent, any government should change its  policy when threatened by terrorist act(s) .
My view at the time and, over the couple of years that have elapsed since 2005, has remained unchanged....... there  must be circumstances when governments will and must change policy when faced with unusual and overwhelming threats.

This issue was discussed in some detail by their Lordships in the case of The Queen on the Application of Corner House Research and Campaign Against Arms Trade  - and -The Director of the Serious Fraud Office- and -BAE Systems PLC. (pdf)
Anyone who enjoys  the arrogance and illegality of Ministers excoriated in public would enjoy Lord Justice Moses' judgement, especially his last withering  paragraph.

The court has a responsibility to secure the rule of law. The Director  [of the Serious Fraud Office] was required to satisfy the court that all that could reasonably be done had been done to resist the threat [by the Saudi Arabian government to cut  off intelligence leaving the UK open to imminent terrorist attacks]. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted. No-one, whether within this country or outside is entitled to interfere with the course of our justice. It is the failure of Government and the defendant to bear that essential principle in mind that justifies the intervention of this court. We shall hear further argument as to the nature of such intervention. But we intervene in fulfilment of our responsibility to protect the independence of the Director and of our criminal justice system from threat. On 11 December 2006, the Prime Minister said that this was the clearest case for
intervention in the public interest he had seen. We agree.

But within the forty odd pages of the judgement, the court dealt with  an issue akin to the Barder question. Their Lordships discussed  the case of Leila Khalid.

[Counsel for the SFO Director] draws attention to the case of Leila Khalid in 1970 (described by Edwards, in The Attorney General, Politics and the Public Interest (1984) p.324). Khalid was a member of the PLO, in custody following her attempt to hijack an aeroplane. The PLO threatened to kill Swiss and German hostages, unless she was released. Sir Peter Rawlinson, the Attorney General accepted the advice that prosecution would increase the danger to the lives of those hostages and ordered her release. Edwards describes the decision as clearly defensible, since the Attorney General was faced with the awful dilemma of measuring the freedom and, possibly, the lives of the hostages against nonenforcement of the criminal law (p.325).
The release of Khalid was not the subject of any review by the courts. But we acknowledge that there may be circumstances so extreme that the necessity to save lives compels a decision not to detain or to prosecute. But it is for the courts to decide whether the reaction to a threat was a lawful response or an unlawful submission.

In the case of Khalid, those who had made the threat had the power to carry it out immediately; the Attorney General’s choice was to release Khalid or let the foreign nationals whose governments were in the process of negotiations be killed. Both in domestic and in customary international law [....] the law recognises the defence of duress and, in some circumstances the justification of necessity.

I'm sure it's possible to distinguish the Khaled case  from the concept of a  government "doing what on all other grounds needed urgently to be done, for fear of provoking a terrorist attack in Britain"

Faced with a threat by terrorists to to kill hundreds of innocent travellers on the London Underground, would it be acceptable for  any UK government to  tailor its foreign policy using to the Khaled defence?

Comments

[Phil]

To that last question I say more or less what I said to Brian: faced with the declared intention of organised crime to exploit and profit from any new casinos, would it be acceptable for any UK government to tailor its gambling policy accordingly? It seems fairly obvious that it would, on the general principle of minimising harm. I'm not sure why sticking a political label on organised crime makes it harder to take into account.

[Brian Barder]

These are fascinating questions and terrible dilemmas. I wonder whether it's perhaps helpful to distinguish between the one-off threat ("we'll kill these specific hostages on Friday unless by then you...") and the general threat ("We'll explode bombs in all your major cities unless you stop pursuing anti-Islamic policies in Iraq/Bradford/television studios/the middle east/the UN...")? It's mainly in the latter case that it seems to me utterly indefensible to yield to blackmail. To do so is to hand over control of government policy to murderous criminals whose demands can't and won't ever be satisfied. I think it's almost always wrong to yield to threats in the former case also, since to do so ensures that others will be encouraged to utter similar blackmailing threats, and the cost in lives and misery will be higher in the end. Margaret Thatcher was right (for once) to let the IRA hunger strikers in the Maze starve themselves to death. But I can envisage extreme cases where it's almost impossible to let the threat be carried out -- the Khaled case, in other words. But such cases are and should be exceedingly rare, and the harm done by appeasement has to be weighed against the harm done by the carrying out of the threat.

Hope this is not too magisterial!

Brian B.
http://www.barder.com/ephems/

[Peter Harvey]

Brian may suspect the Spanish people of cravenness, but when faced with a real dilemma of the kind discussed here they responded bravely and unanimously (Wikipedia: http://tinyurl.com/46x7ey)

Miguel Ángel Blanco Garrido (13 May 1968 – 13 July 1997) was a local politician in Ermua (Biscay), in the Basque autonomous community (Spain) for the Partido Popular.

On 10 July 1997, Blanco was kidnapped by ETA which threatened to assassinate him unless the Spanish Government transferred all ETA prisoners to prisons in the Basque Country within 48 hours. Hours before the ultimatum expired, one of the biggest demonstrations in Spanish history started in all major cities, demanding the freedom of Miguel Ángel. As soon as the ultimatum expired on 12 July he was shot in the back of the head. His kidnapping and brutal murder caused a huge outpouring of grief in Spain and beyond after his body was found with his hands tied behind his back and two bullets in his head.

[Brian Barder]

I didn't describe the Spanish people as craven: I said they came perilously close to embracing a craven doctrine when they seemingly allowed a terrorist outrage to swing the votes at a general election away from the government then in office which until then had been expected to win. (I accept of course that the government's misguided and premature attempt to blame ETA for the outrage was also a factor, possibly even the main one.) As for the unfortunate Mr Blanco, I would be inclined to say that this might possibly have been a case where acceding to the blackmailers' demands could have been justified, on the precedent of the Leila Khaled case, especially as there was no demand that the ETA prisoners should be released. The demonstrations against the blackmailers were much to the credit of the Spanish people and the pros and cons of acting as the government did are incredibly finely balanced.

I am inclined to argue that in some circumstances a terrorist threat to kill specified innocent individuals within an explicit time-frame may justify acceding to the demands made, depending of course what those demands are. What seems to me never justified is changing general government policies which on all other grounds are justified and right, purely in response to a generalised threat of terrorist activity at some future time if the change sought is not made.

But these are terrible decisions for any government to have to take, and any judgment of the decision taken needs to be expressed with proper humility.

Brian B.
http://www.barder.com/ephems/

[Peter Harvey]

The Spanish view is that you don't give in to terrorist blackmail. Full stop. No-one, including Miguel Ángel's politically prominent sister, has ever suggested otherwise.

[brendan stallard]

"Faced with a threat by terrorists to to kill hundreds of innocent travellers on the London Underground, would it be acceptable for any UK government to tailor its foreign policy using to the Khaled defence?"

Absolutely not.

At that time, governments were clearly unable to see the broader issues, few could at the time, and the horrible decisions that would have to be taken in regard to those who take hostages.

From the time of Sir Robert Mark, who forced Cabinet and the various arms of the security services to understand the point about if you give in to the bad boys even once: it'll come back and bite you on the bum.

So: from the POV of the security services: once hte hostage has been taken, as far as you are concerned, they are at that point dead (from a negotiation point of view). You deal with what you've got and give them _nothing_.

As in the Balcombe Street seige: "You're coming out in handcuffs, or in a body bag, no matter what you do".

Since the time of the Iranian Embassy, the UK has been relatively untroubled by those who take hostages, Sir Robert Mark and the tough attitude is precisely why.

brendan

[brendan stallard]

"Faced with a threat by terrorists to to kill hundreds of innocent travellers on the London Underground, would it be acceptable for any UK government to tailor its foreign policy using to the Khaled defence?"

Absolutely not.

At that time, governments were clearly unable to see the broader issues, few could at the time, and the horrible decisions that would have to be taken in regard to those who take hostages.

From the time of Sir Robert Mark, who forced Cabinet and the various arms of the security services to understand the point about if you give in to the bad boys even once: it'll come back and bite you on the bum.

So: from the POV of the security services: once hte hostage has been taken, as far as you are concerned, they are at that point dead (from a negotiation point of view). You deal with what you've got and give them _nothing_.

As in the Balcombe Street seige: "You're coming out in handcuffs, or in a body bag, no matter what you do".

Since the time of the Iranian Embassy, the UK has been relatively untroubled by those who take hostages, Sir Robert Mark and the tough attitude is precisely why.

brendan

[Peter Harvey]

This is from the Independent, 13-7-97, but I can't find it there. I have it from http://tinyurl.com/4yw5sa

Spain was poised on the brink of a renewed wave of political violence last night after a Basque politician, kidnapped by Eta separatists, was found shot in the head just hours after half a million demonstrators had thronged the streets of the northern city of Bilbao to demand his release...

Eta had threatened to kill Mr Blanco by 4pm yesterday unless Madrid met its demand to transfer 450 Eta prisoners to jails in the Basque Country. The government said it would not give in. Bearing anti-Eta blue ribbons, applauding and crying "Libertad! Libertad!", ("Freedom!"), the demonstrators, led by the Conservative Prime Minister, Jose Mari Aznar, and leaders of the Basque Nationalist regional government and opposition Socialists, filled the streets in the biggest such demonstration the region has seen for years. The [Basque] regional interior minister, Juan Maria Atutxa, hailed the demonstration as "the voice of the vast majority" but warned: "Eta always carries out its threats." Security forces had worked flat out to find Mr Blanco before the deadline expired. It was the third time Eta had set a deadline to kill a hostage. In the previous cases, both were eventually killed. Less than a fortnight ago, a prison officer, Jose Antonio Ortega Lara, was freed by the Civil Guard after being held hostage by Eta in an underground cell for 18 months. The conditions endured by Mr Ortega Lara, who looked like a concentration camp victim when he emerged, shocked the nation.

It was because the Spanish government lost track of the broader issues in March 2004 -- by concentrating on ETA and ignoring Islamist terrorism -- that it was caught out so badly. It tried to lie its way out of the difficulty and lost the election.

[Peter Harvey]

This is from the Independent, 13-7-97, but I can't find it there. I have it from http://tinyurl.com/4yw5sa

QUOTE

Spain was poised on the brink of a renewed wave of political violence last night after a Basque politician, kidnapped by Eta separatists, was found shot in the head just hours after half a million demonstrators had thronged the streets of the northern city of Bilbao to demand his release...

Eta had threatened to kill Mr Blanco by 4pm yesterday unless Madrid met its demand to transfer 450 Eta prisoners to jails in the Basque Country. The government said it would not give in. Bearing anti-Eta blue ribbons, applauding and crying "Libertad! Libertad!", ("Freedom!"), the demonstrators, led by the Conservative Prime Minister, Jose Mari Aznar, and leaders of the Basque Nationalist regional government and opposition Socialists, filled the streets in the biggest such demonstration the region has seen for years. The [Basque] regional interior minister, Juan Maria Atutxa, hailed the demonstration as "the voice of the vast majority" but warned: "Eta always carries out its threats." Security forces had worked flat out to find Mr Blanco before the deadline expired. It was the third time Eta had set a deadline to kill a hostage. In the previous cases, both were eventually killed. Less than a fortnight ago, a prison officer, Jose Antonio Ortega Lara, was freed by the Civil Guard after being held hostage by Eta in an underground cell for 18 months. The conditions endured by Mr Ortega Lara, who looked like a concentration camp victim when he emerged, shocked the nation.

END QUOTE

It was because the Spanish government lost track of the broader issues in March 2004 -- by concentrating on ETA and ignoring Islamist terrorism -- that it was caught out so badly. It tried to lie its way out of the difficulty and lost the election.