What does “National Security” actually mean?

The Committee on the Administration of Justice (CAJ) published a report in late 2012 entitled “The Policing You Don’t See”. It highlighted the ‘parallel justice system’ currently operating in Northern Ireland. This consists of a police force accountable to local mechanisms and another “force outside a force” responsible for national security issues, operating from within the Security Service (MI5) in London.[1]

In order to decipher precisely which actions MI5 is to be held legally accountable for, it is important that the meaning of ‘national security’ in international law is clarified. The national security doctrine is notoriously elusive and its definition has been debated for centuries. This post will briefly summarise the points from a longer essay submitted to the Irish Centre for Human Rights in May 2013.[2] It will illustrate the broad interpretative scope of the national security doctrine in the United States of America (‘the US’), the United Kingdom (‘the UK’) and Turkey. It will be shown that the European Union (EU) and other international bodies, including the United Nations (UN), have spoken out on the need to clarify the national security doctrine for the purposes of safeguarding human rights. Judgments in the European Court of Human Rights (ECtHR) confirm this sentiment. It appears contrary to current international thinking on the issue that the UK has recently legislated for so-called ‘secret courts’, which relies on the obscurity of ‘national security issues’. It is hoped that this discussion might contribute to clarifying the interface between domestic counter-terrorism strategy and international human rights protections.

From the academic debate on its definition, two elements of national security can be drawn out. First, in the context of military defence, several academics[3] have highlighted the importance of territorial sovereignty – as monitored internally within a state’s jurisdiction and externally, beyond the state’s borders. The modern etymology of the phrase dates to the US Senate in August 1945 when Navy Secretary James Forestall spoke about military preparedness in the shadow of the Second World War. The other element that presents itself in the academic writings is the protection of democratic constitutional values. As will be seen in states’ interpretations, national security has been construed so as to include political and economic ‘interests’ (another ambiguous term) – not only domestically, but worldwide.

The definition currently employed by the Obama Administration entails the seemingly unlimited promotion of US interests “around the globe”.[4] Worryingly, it even goes so far as to explicitly mention as a priority for US national security the protection of the ‘interests’ of “its allies”.[5] The US could therefore justify limiting an individual’s human rights if, for example, the constitutional values of “its ally” were deemed to be threatened. The broad scope of such an interpretation is a cause for concern for international human rights law.

The UK government interprets its ‘interests’ as ensuring its international political and economic influence. Notably, the UK cites national security interests as the primary obligation of government.[6] This seems to prioritise state interests over its citizens’ rights (despite international human rights obligations to the contrary).

Hale Akay has labelled Turkey a “security state” that has assigned itself “supreme rights”.[7] For the national security doctrine, the problem lies with the subjective definitions of nationhood, existence and – most obscure of all – “interests”. Akay has highlighted the increasing militarisation of Turkey and warns that the national security doctrine “must be redefined clearly, unequivocally” so as to avoid “further expansion of the military into the civilian sphere”.[8]

The European Union has directed that all state parties’ national security interests are subsidiary to the security of “the Union as a whole”. This does not provide much information as to the definition of what that such security protects, but there have been more useful statements from international bodies, such as the NGO, Article 19. According to Article 19’s Johannesburg Principles, states are justified in combating threats either within the state (internal) or those coming from outside the jurisdiction (external). Significantly, the Principles highlight as relevant both the intent with which the threat to national security was made and the likelihood of that threat materialising. This suggests that where the likelihood is low that a national security interest is threatened, the state will not be justified in limiting individual rights. Therefore, governments must balance the protection of their interests with the intent and likelihood that its ‘national security’ will be threatened. Admittedly, this assessment is a delicate balance, but it serves to rein in states’ powers to limit the rights of individuals who are deemed to constitute a threat. This sentiment appears to be a general consensus at the international level, with the relevant UN Special Rapporteur announcing in 2012 that states must clearly define their interests so as to avoid unnecessary limitations of human rights.[9]

A chronological approach to ECtHR jurisprudence shows a common theme of the national security doctrine. Due to the tendency of political and economic interests to alter over time, a definition of national security interests is probably unattainable. However, since the case of Leander [1987], the ECtHR has ruled time and time again that the determination of national security threats must not be arbitrary. Most recently, the ECtHR held that determinations of national security threats must be subjected to “meaningful judicial scrutiny” whereby such determinations can be challenged by the individuals affected before an independent review body.[10] Threats to national security must therefore be demonstrable and individuals whose rights have been limited for national security reasons should be able to challenge this reasoning. Otherwise, there is no limit on the state’s power to restrict the rights of those who challenge its hegemony.

In spite of these Strasbourg judgments, the UK has just introduced the Justice and Security Act 2013, which widens the scope of so-called ‘secret courts’ in which individuals deemed to constitute a national security threat may be tried without hearing the evidence against them. Instead, security-cleared “special advocates” provided by the state will represent the accused. This legislation exposes the importance to rights protections of defining national security interests. Moreover, it highlights the delicacy of the balance between granting power to a state in order to protect itself and the prevention from state abuse of such power.

Likewise, in order to contain the “force outside a force” and thus prevent MI5 from operating independently of established legal restraints, the UK government must observe the obligations to which it has signed itself up. From the European Union to the United Nations to the European Court of Human Rights, the international community has spoken. For the survival of international law, the necessary next step is for states to listen and act accordingly. In order to set the international example it strives to set, the UK must not abandon its obligations and abuse its power.

[1] Committee on the Administration of Justice. “The Policing You Don’t See – Covert Policing and the accountability gap: five years on from the transfer of ‘national security’ primacy to MI5”, Belfast (2012) http://www.caj.org.uk/contents/1141

[2] Kearney, ‘Re-Redefining the National Security doctrine’ [2013] (available on request)

[3] Explored in Romm, J.J., “Defining National Security: The non-military aspects” Council on Foreign Relations Press (New York), 1993 

[4] United States government, National Security Strategy (Washington) (2010) http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf

[5] United States Department of Defense, “Dictionary of Military and Associated Terms” [2010/2013], p. 198 http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf

[6] United Kingdom government “A Strong Britain in an Age of Uncertainty: The National Security Strategy” (London) [2010] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61936/national-security-strategy.pdf

[7] Akay, Hale, Security Sector in Turkey: Questions, Problems and Solutions”, Tesev Democratisation Program Policy Report Series, Istanbul (2010), p. 8

[8] Ibid.

[9] Emmerson, Ben, “Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Framework principles for securing the human rights of victims of terrorism, United Nations General Assembly (2012) http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A-HRC-20-14_en.pdf

[10] M & Others v Russia (Application no. 41416/08) ECHR [2011]