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2: SECURITY, POLICING AND THE RIGHT TO LIFE (i) BALANCING LIFE AND SECURITY - PRINCIPLES Campbell: the RoL, legal positivism and states of emergency Summary: Campbell considers how the RoL can be upheld where shoot to kill policies are authorized in the counter terrorism context; his argument is that prescriptive legal positivism can be used to ensure that the special rules required to deal with the terrorist threat are found within the confines of the law; under prescriptive legal positivism, the legislation must specifically and clearly state objective criteria under which the executive can propose a state of emergency; this criteria must then be assessed by the judiciary and evidence evaluated against the legislative requirements; under this model, the judiciary can provide effective oversight, outside of HR's considerations and therefore the role of the judiciary may be less controversial, instead using an administrative, black letter law approach; where the judiciary agrees that a state of emergency is in play, this will bring shoot to kill policies within the confines of the legal system, avoiding any clashes with the RoL Introduction:
? The policies relating to the use of lethal force can cover a wide variety of situations (routine police procedure vs. activities to prevent major terrorist attacks)
? If shoot to keep policies in the context of anti-terrorism are no longer to be considered exceptional, there are questions to be raised about how to legitimate such measures in a way that conforms to the RoL (rather than opting out of it) The RoL: the argument is there needs to be a system of law in place in order to authorize use of lethal force
? Campbell argues that a legal positivist construction of the RoL can be used to generate a strategy that afford effective and democratically legitimate modes of protecting and promoting defensible conceptions of rights to life in the counter T context ? he proposes that a SoP is required in a system which holds the executive to account in terms of democratically enacted laws by courts whose duties are confined to applying specific laws to concrete situations defined in terms amenable to objective assessments by courts through evidence based DM = endorsing normative legal positivism and excluding HR's constitutionalism
? In relation to defensible uses of lethal force for counter T purposes departing from those applicable to other spheres of policing, he argues this could be accommodating by limiting the applicability of uses of lethal force to periods of terrorism-defined states of emergency, whose authorization requires court approval based on positivist rule of law standards ? this provides a way for morally legitimate authorization of counter T use of lethal force which can be accommodated within a constitution of democratic ruled governance
? ***NOTE: link to Gross here ? are we within or outside of the law?
? Schmitt (Nazi philosopher): liberal states are undermined by the fact that liberal democratic states retain the power to suspend the constitution and rule by emergency powers ? highly discretionary shoot to kill policies involving powers not normally exercised in standard police practice could be an example of this sort of lawlessness
? On the other side of the debate is the argument that even a grave emergency cannot warrant the exercised of unlimited and legally unsupervised discretionary coercive power ? shoot to kill policies just like all official policies need to be subjected to a regime of legitimate law
? In response to Gross - proposal is undermined by failing to realize that it involves judicial constraint of executive action being bypassed at the very time it is most important
? Theory: prescriptive legal positivism - normative thrust is that there are major benefits to be derived from adopting an aspirational model of law; the focus is on formally good rules and a SoP
? Under this theory, there is no assumption that whatever is democratically decided is
morally right - it generates a prima facie political obligation independently of the content of the decision in question Preventing terrorist carnage
? Are the rules of engagement/police guidelines for the use of firearms relating to STK capable of being expressed in terms that can be clear guides can be useful in the moment of action and objectively adjudicated after the event?
? Broad principles might be clear (eg. SD) but there are particular needs for clarity/specificity in rules that are to be applied in the heat of dramatic events - if we rely on concepts such as reasonableness or proportionality to set the standards this is a drafting failure
? On the other hand, the rules will need to be followed in dramatic and fast moving circumstances but we shouldn't forget we are talking about personnel who should have been trained thoroughly in this area
? The rules in the AT context are likely to require significantly different conduct because of the potential extent of harm to third parties, the fear and alarm caused by terrorism to entire populations, the suffering caused by the economic damage that results from terrorist acts, the extended indiscriminatory aggressive motivation of terrorism, the complexity of the calculations of risks involved in taking pre-emptive action, the evident nature and extent of the limitations to civil liberties in counter T tactics o The De Menezes shooting supports the argument that post 9/11 there is a different style of policing emerging
? Positivist responses to these differences?
o Careful articulation of a distinct set of rules - making allowances for greater risks involved and difficulty of knowing whether or not the target persons are a major danger o EG. There might be less reason to give as much priority to police safety, who might be expected to take greater risks with their lives in this context o In this case, we might reasonably expect to see more tolerance of false positives, more acceptance of superior orders and a looser definition of necessity and less reliance on absolute rights in policy directives o What matters is the nature and extent of the potential damage that might be perpetrated by the target o Note the vague and open-ended definitions of T ? problematic for positivism
? The content of these rules in the AT context are likely to generate anxiety on the part of civil libertarians since the suggestion is that the rules would anticipate less protection for suspects and increased likelihood of abuse of counter terror powers in the context of police activities which is exacerbated by the pressure on police to be seen as decisively acting in these scenarios States of emergency
? If the circumstances justify a different set of rules, one obvious path for the legal positivist is to work at getting the special rules required into as good formal shape as possible
? However, it would appear there are some grounds for acknowledging that at least in some respect, operational directives are likely to be too loosely worded and discretionary to meet the positivist standards of clarity/decisiveness
? A further move therefore is to make the application of these formally unsatisfactory rules conditional on the prior existence of an officially declared state of emergency
? Suggestion: the precondition to civil liberty threatening rules should require the declaration of a state of emergency on terrorism grounds ? this takes some of the vital decisions out of the heat of the moment ? the occasions to use lethal force will be in the cauldron, but the assessment of the possible outcomes of T can be subject to measured consideration
? A possible objection: declaring a state of emergency in within the power of the executive and therefore open to abuse ? but emergency provisions could be precise in their requirements and subject to judicial oversight
? Benefits of declaring a formal state of emergency:
Avowal that the measures are exceptional and likely to be temporary or subject to review o The requirement that objective evidence be presented that there is a de facto emergency o The fact that it can operate in tandem with the requirement that the Parliament make a similar judgment after having had the opportunity to challenge such information and evidence laid before it by the government The legislature can clearly identify what is to count as an emergency in the legislation
- what constitutes an emergency can be precisely articulated and applied to a particular situation The court can then objectively judge whether these conditions exist as defined in state without having recourse to moral considerations All this must be put into the context of the wider debate concerning whether courts or legislatures are the better path for effectively protecting rights in the T context o Dealing with the fundamental RTL with respect to suspects and victims and those involved in counter T organisations o This ought to be subject to the strongest form of judicial review available o Some argue in emergency situations, the executive is better placed than the judiciary - the argument is that the judiciary is slow and lacks information ? the critique of this position is that political and legal controls in times of emergency should not be alternatives but supplementary o But the critiques miss the role of the courts ? they assume that HR's judicial review is what courts can offer and assume we are dealing with moral judgments with proportionality being desirable o The argument is that the impact of the court would be better being derived from a more traditional administrative form of judicial review, turning on the black letter legality of the official action in question o?Kleinig and Kasachkoff: civil emergencies and the claims of innocence Summary: This article considers the morality involved in determining whether or not a hijacked plane should be shot down in order to save the lives of those at the target site; the authors seem to be suggesting that this possibility cannot be ruled out, especially as the arguments which are asserted in favour of not doing anything can be subjected to criticism. For example, the authors focus on the killing/allowing distinction and argue in reality the distinction is between killing those on board or allowing those at the target site to be illegitimately killed by others with an evil purpose. Ultimately, they seem to be suggesting that it may be morally legitimate for the official who has responsibilities to protect citizens as a result of his position to order the shooting down of the plane, acknowledging that by taking this kind of job he has accepted the risk of being morally tarnished as a result.
? The decision of the German Constitutional Court that legislation authorizing a hijacked plane to be shot down would violate the RTL and human dignity has generated a great deal of discussion ? the moral questions raised by these possibilities and of great interest
? Chapter considers variants on this hypothetical and the moral potency of the debate in relation to these scenarios
? Three issues are common to each account: the deliberate downing of the aircraft will almost certainly result in the loss of what are called innocent lives; whether or not the aircraft is shot down, the passengers will be killed and if the aircraft reaches its intended targets, more lives will be lost than if it is brought down beforehand = three moral challenges Three moral challenges:
1. The claims of innocent human life
? Deliberately downing the plane will result in loss of innocent lives - innocence means those on board bear no responsibility for the threat
? These innocents have moral claims by virtue of the fact that they are human, they have lives and these lives are innocent
? Human standing: as moral agents, humans are owed special regard and have rights to self determination and are owed and owe to others some degree of non-interference and have a significant claim to be involved in decisions affecting them
? Claims of life: people have a foundational claim to life itself, especially as violating the RTL extinguishes other rights and therefore the reasons for overriding a RTL need to be stronger than those required to limit liberties; with respect to SD, not all aggressors are morally responsible for the threat they pose and what is usually argued is that although the two cannot be differentiated in terms of intrinsic worth, the fact that one party is causally responsible for the threat gives the threatened party a moral edge
? Claims of innocence: in the plane, the passengers are not aggressors but hostages and their inherent claim to self determination and life is as strong as any; but they are on board a plane being used as a weapon against otherwise and we are to assume greater devastation will be caused if they are not stopped
? Considerations relevant to the morality of a decision to shoot down the aircraft: o Appeal to dignity - passengers' dignity violated if the plane were shot down; inviolable under German Basic Law A1 (GCC - treating them as objects)
? Counter: the passengers lives are not being targeted as a means of thwarting the hijackers - rather the hijackers are being targeted and it is tragic that they cannot be effectively targeted without the passengers dying; it is tragic bc they will be killed so it is not the dignity of the passengers that is unrecognized but their RTL and the real question is whether this RTL is infringed in a defensible way o Intended v foreseen harm: ie. The deaths of the passengers is the foreseen but unintended consequence of shooting down the plane (a side effect; the doctrine of double effect)
? Counter: the distinction between foreseeability and intention does not seem to possess uniform moral significance and it may be that the two are morally indistinguishable and even if the distinction plays an active moral role, this is only in conjunction with other considerations o Doing v. allowing harm: doing harm to the passengers on the aircraft as well as those at the target site) and allowing the harm to eventuate (to both the passengers and those at the target site) ie. That it is morally worse to harm than to allow harm; this has an intuitive appeal
? Counter: not clear whether the distinction is sustainable and where it is whether and what it's moral significance is; it might simply be that we are judging motivations differently on the basis of presumptions; motivations don't tell the full moral story anyway as agency needs to be factored in; we should resist the temptation to assign greater resp to agents of harm (doer) bc the notion of agency does not always track
commissions of acts as opposed to failures to act In relation to the aircraft example - does the fact that in one case the DM would bring about the deaths of some and in the other case would simply allow the deaths to occur have any moral relevance?
? The DM in this case is an official who bears public resp for protecting citizens - if he does not order the shooting down of the plane, he allows for a course of events that goes contrary to his terms of public office (protecting citizens) ? he can protect those at the hijacker site but he cannot protect those on the plane and he cannot protect them all by allowing the hijackers to continue or by ordering the plane to be shot down o Killing v letting die v allowing to be killed: it might be argued we don't have the choice between killing and letting them die but rather a choice between killing and allowing them to be killed ? does it matter in the example morally whether the choice of the official is between killing (shooting down the plane) and letting (those at the target site) be killed, rather than a choice between killing and letting those at the target site die - this depends on the moral difference between the two
? The suggestions is there is a difference - in one case where someone allows another to be killed cf. to die, what one allows is not only the death of another but death brought about by evil intentions and actions and therefore one allows undeserved death of an innocent and the additional evil of someone bringing about that death unjustifiably The imminence of death:
? What is the relevance of the inevitability/imminence of the deaths of the passengers? ?
the passengers are going to die either way - what moral relevance might an imminent death have?
? The relevance of contingencies: o GCC refused to give moral significance to the imminence of the deaths of the passengers, taking the view that each life has equal value and appeals to factors like this as a basis for decisions about whether humans should live opens the door to a way of thinking about what constitutes a worthwhile human life that the court wished to put behind it o Counter: the passengers were unlikely to have more fulfilled lives as a result of the extra half hour; quality of lives the same and a small increment in quantity without quality amounts to nothing of moral significance against the number of lives to be saved o Reply: it's not for others to determine what would be of value to the passengers of an extra thirty minutes (eg. Could be making calls to loved ones or engaging in prayer) o Could the passengers be consulted about their fate? Some might decide to endorse being shot down
? A rawlsian strategy: o Could we approach the issue by a rawlsian hypothetical? Putting to a group of people charged with drawing up social rules whether there should be a rule - might accept the reasonableness of having a social rule that would permit an official to make such a determination
? Triage situations: o Could argue not concerned with judging the worth of lives but the relative worth of saving lives - akin to medical triage situations - eg. Passing over patients who cannot be saved to attend to patients with a chance of survival (clearly important differences between medical triage cases and this situation as the physician is not killing patients and this is also acknowledged to be right)
? Public officials have the resp of protecting the community - it might just be difficult to accept that those charged with citizen protection are those charged with ordering deaths Comparing devastation:
? Greater devastation caused if the plane is not shot down - not as simple as a numbersgame; also need to consider the strategic significance of the target which could lead to administrative chaos
? It is also important to note if the government authorizes the shooting down of the plane, the government will have brought about deaths of its own citizens and there are important moral costs to address here ? it's not just simple consequentialist costs in play The base case
? This is a dirty hands case - whatever the official does, the decision results in him doing something that will involve violating an important moral principle - bc of protective rule, whatever the official does he cannot escape being complicit in the events
? In this case, the official cannot just argue he was justified in shooting down the plane as a lesser of two evils - the responsibilities of his office have made it morally obligatory that he view his actions through the lens of his role - he may argue this required the shooting down of the plane and he is responsible for the deaths of innocent passengers and he might believe that this means as a consequence of accepting his responsibilities to his office he incurred the risk of tarnishing his soul
? But contrary to the view of many - the dirty hands characterization does not resolve the moral issue - it is not clear what we should say
? Authors say we need to recognize that sometimes the circumstances call for us to do what is wrong ? the case is one where the official is called upon to make a decision carrying a terrible moral cost with the proviso that the official who makes the decision be held accountable for it (ie. Determine whether he acted with due diligence and due regard)
? This account trades on the ethical obligations of the government official ? what happens if the decision is being made from another source?
? Does the pilot have special moral resp to his passengers? - probably does not go far enough as the pilot could say he has a moral resp to passengers but there is nothing he can do to relieve their circumstances and has a wider resp to fly the plane without risk to the public and he should act to minimize it
? We might believe he has acted as we might have expected of someone in his circ's as had he continued to pilot the plane he would have been responsible for the deaths of passengers and those at the target site and so at some level, this decision reflects a heroic if tragic moral choice HEROIC PASSENGERS
? In this case, we might describe the situation as the passengers having consented to placing themselves at risk of dying sooner and were justified in their actions - heroic decision and moral blame for their deaths fell to the hijackers
? But what if there was a voting majority?
? What if there is no vote of the passengers but passengers take it into their own hands without consultation? - the idea is that they go down fighting and assert their dignity and the decision appears to be an act that is public-spirited, self-sacrificial and done with heavy hearts A PUBLIC SPIRITED CITIZEN (opportunity and means to shoot down the plane)
? Concern about citizen pursuing this task on his own - what if he is wrong?
? Strong social reasons for deterring this behavior Conclusion
? Innocents on a hijacked plane need to be accorded their full rights as human beings, including RTL and self determination, even if their lives will be terminated ? this is what makes the decisions of those in the position to make decisions so problematic
? Any action to save those on targeted will violate the rights of the hijacked passengers
? BUT those at the target site also have rights to life and self determination and although a decision not to shoot down the plane will be a decision to allow them to be killed, we wonder whether the doing/allowing distinction can bear so much moral weight that it should rule out moral legitimacy of someone with an appropriate role giving overriding weight to the claims of those at the target site
Moller: the RTL between absolute and proportional protection Summary: Moller argues we need a theoretical basis for distinguishing between absolute and non-absolute rights. She argues the RTL will under certain circumstances be absolute or near-absolute, but these circumstances will be rarer than sometimes thought. She argues that the court mischaracterized Kant's objection to people being used as means to an end and not an end in themselves, instead arguing that the passengers on the plane were disablers not enablers and therefore proportionality could take place and shooting down the plane would be justified. Her theory is that this distinction between enablers and disablers provides a distinction for when rights will and won't be absolute - proportionality can only come in to play where the person is not being treated as an object/enabler. Introduction:
? Few ideas have spread as quickly and pervaded an entire area of law as thoroughly as proportionality
? Alexy's model of rights as principles which have to balanced against conflicting principles if one of the most influential theoretical accounts of this development - Moller is critical of some aspects of this model but accepts and subscribes to the desirability of balancing in rights law but this doesn't mean all rights are open to balancing in all situations but that some are and some are not or it may depend on the situation
? We need a theory which distinguishes absolute from non-absolute rights The German Constitutional Court decision
? Under German law, the RTL is not absolute, but can be interfered with pursuant to law but the doctrine of proportionality comes into play as well - each interference with constitutional rights has to be prescribed by law and also proportional - serving a legitimate goal, suitable to further this goal, necessary in that there is no other less restrictive but equally effective means to reach the goal and it must not impose a disproportionate burden on the right-holder
? Applying the proportionality approach to the hijacked plane situation, it would seem that shooting down the plane could easily be justified in cases where the number of people likely to die would exceed the number on board but relying on the principle of German criminal law according to which lives must never be balanced, the argument in this case was that the proportionality principle could have no application in the case of intentionally killing innocent people
? A1(1) affords a special place to human dignity - human dignity is untouchable (cannot be interfered with) and this principle has huge consequences
? The most widespread definition of human dignity is that put forward by Durig who employing the Kantian distinction between treating people as ends and as means to an end, argued that dignity required treating persons as subjects rather than objects
? Although dignity is difficult to define, it has become one of the cornerstones of German constitutional jurisprudence and has also become a major export (eg. SA Constitution)
? The German FCC regards dignity as the basis of all constitutional rights and the central value in the basic law and has referred to dignity as a principle guiding other provisions of the basic law
? The court decided the Act was unconstitutional on two grounds: o The legislature lacked legislative competence o Violation of constitutional rights - to human dignity and to life
? ???? An analysis of the decision: o Judgment begins with general remarks on RTL and dignity and notes that the RTL is guaranteed only pursuant to law but moves on to argue that any law that interferes with it needs to be interpreted in line with the RTL and human dignity
- 'human life is the vital basis of human dignity as the primary structural principle and superior constitutional value' o This bridge between the RTL and the right to dignity allows the court to leave the right to life behind and focus on dignity, relying on the doctrine of treating
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