The Struggle of a Democracy against Terrorism: Sacrificing Civil Liberties to Reduce Terrorism Risks

By Sonakshi Verma, National Law University Jodhpur

Editor’s Note: Terrorist threats have existed throughout modern history, and the importance of deterring and preventing terrorist acts is of central importance. The impulse to abandon human rights norms in times of fear and crisis is short-sighted and self-defeating. As the revelations of shocking abuses at Abu Gharib prison have demonstrated, the world will not easily accept inhumane treatment in any context, and such treatment will tarnish and undermine even legitimate security operations. Therefore, this is an issue which requires in-depth analysis, as done by the author, due to its complex and multidimensional nature.

Introduction

“What distinguishes war conducted by a state from war conducted by its enemies—one fights in accordance with the law, and the other fights in contravention of the law. The moral strength and substantive justification for the authorities’ war depend completely on compliance with the laws of the state: in waiving this strength and this justification for its war, the authorities serve the purposes of the enemy. The moral weapon is no less important than any other weapon, and perhaps even surpasses it—and there is no more effective moral weapon than the rule of law.”

Among the principles that govern the modern civilization across the world today, human rights are arguably one of the most important. They give a plank to steer clear of the excesses of operation of state power within nations and sometimes, even in situations of inter-nation conflicts and engagements. They are consciously made supranational and supra-legal limited neither by the boundaries of state, nor made contingent upon laws passed by the state. Of course, the importance and the scope of human rights have been evolving further with the passage of time, even as the UDHR surely provide it with a firm and enduring foundation.

An inescapable link between impermissible acts of terrorism and violations of human rights exists. Because of this link, when human rights are protected, terrorism is necessarily set back.

Terrorism clearly has a very real and direct impact on human rights, with devastating consequences for the enjoyment of the right to life, liberty and physical integrity of victims. In addition to these individual costs, terrorism can destabilize Governments, undermine civil society, jeopardize peace and security, and threaten social and economic development. All of these also have a real impact on the enjoyment of human rights. Security of the individual is a basic human right and the protection of individuals is, accordingly, a fundamental obligation of Government. States therefore have an obligation to ensure the human rights of their nationals and others by taking positive measures to protect them against the threat of terrorist acts and bringing the perpetrators of such acts to justice

At one level of understanding, it is clear that strategies of impermissible terrorism necessarily involve violations of human rights law. For this reason, all forms of impermissible terrorism involve conduct that is already proscribed by international law, whether such conduct is engaged in by private individuals or official elite, for some private or political purpose, or even in the name of the state.

The 9/11/2001 terrorist attack on the United States dramatically affected the nation and the rest of the world. The attack stimulated a concerted effort to adopt measures that would reduce the risks in the future. Many of these precautions involve costs that are not financial, and some involve a reduction in civil liberties of various kinds. Although there seems to be a consensus in approving U.S.-led worldwide action against members of Al-Qaeda, such efforts were not met with comparable enthusiasm in the case of the Taliban government. Support for the U.S.-led effort has continued to wane. One criticism consistently voiced is that the global counter-terrorism campaign is subverting crucial categories in international law. The real, and perhaps most difficult, test of a democratic state lies in its ability to draw a proper balance between the two competing values of security and freedom which will prevent the imposition of avoidable restrictions on individual liberties. Finding this balance is not an easy task. Difficult legal questions are accompanied by a number of moral dilemmas.

What are human rights?

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.[i]

Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.

Universal and inalienable: The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. It is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.[ii] Human Rights are also inalienable in the sense that they cannot be taken away except in situations that render such an action necessary according to law.

Interdependent and indivisible: All rights, such as the right to life, liberty, freedom of expression, etc. are interdependent in the sense that a deprivation of one will cut back the scope of the others and the enhancement of one will advance the cause of the other.

Equal and non-discriminatory: Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions. The principle of non-discrimination is complemented by the principle of equality[iii], as all human beings are born free and equal in dignity and rights.

Defining terrorism in international law

We have cause to regret that a legal concept of “terrorism” was ever inflicted upon us. The term is imprecise; it is ambiguous; and above all, it serves no operative legal purpose[iv]

During the period of de-colonisation the famous sentence that “one man’s terrorist is another man’s freedom fighter” was particularly relevant. That is why the approach of international law towards terrorism was characterised for a long time by avoiding a general definition and addressing specific issues instead.[v] Numerous countries have had to deal with the tragic consequences of terrorist attacks. However, there is still very little consensus within the international legal community concerning what behaviour constitutes an act of terrorism. This lack of consensus has made it virtually impossible to adopt an international convention on terrorism that includes a legally binding, all-inclusive definition of terrorism.[vi] In the past, the UN Security Council has considered terrorism to include violent acts by private individuals or groups which may or may not have been State sponsored. However, beyond this general description little can be learned from UN Security Council practice about what conduct constitutes terrorism other than the fact that terrorist acts constitute a threat to international peace and security.

Ways of defining terrorism: specific and general

According to the Specific approach, international legal scholars have not attempted to define terrorism as a general concept per se, but rather have attempted to define (and proscribe) specific actions such as hijacking, the taking of hostages, and so forth. This can be contrasted with the general (or deductive) model, whereby the definer attempts to articulate a general concept of terrorism by reference to certain overarching criteria (such as, for example, intention or motivation).[vii]

In adopting the specific approach, international law has adapted itself to the ‘predominant form of terrorist action at any given time’,[viii] and has attempted to sidestep the political sensitivity of the broader definitional question. As a consequence, there are some 12 international conventions directed to commonly-acknowledged terrorist modus operandi.

The utility of this specific approach has recently been questioned and criticised by international lawyers. Indeed, the international community has begun to attempt more general definitions. The first attempt – in recent times – at drafting a general definition of terrorism was in 1999, in the International Convention for the Suppression of the Financing of Terrorism.[ix] While the first limb of the definition adopts a specific approach to the question by referring to certain acts mentioned in various international conventions, the second limb refers to:

“Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in hostilities in a situation of armed conflict, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.”

Consequences of lack of a universal definition

The main consequence of the absence of a UN Security Council definition of terrorism is that it is left to States to determine whether violent acts such as the 9/11 attacks constitute an act of terrorism. Therefore, states are allowed to develop their own definitions of terrorism which may be ambiguous and contradictory.[x] This has in turn allowed states to prosecute dissidents and breach fundamental human rights under the umbrella of UN Security Council Resolutions.

It follows that permitting States to determine what conduct constitutes as terrorism creates legal ambiguity. Indeed, contradictory interpretations of what behaviour constitutes as terrorism has caused numerous discrepancies in the domestic legislation of States. In particular, the Counter-Terrorism Committee, which was established in the aftermath of the 9/11 attacks, has stated that the lack of a binding definition of terrorism is hindering its ability to operate at full capacity. The Counter-Terrorism Committee is therefore having great difficulty in taking action against groups that are not considered terrorists under the domestic legislation of some states. In addition to these difficulties, it is argued that some states may be inclined to develop broad definitions of terrorism in order to authorise counter-terrorism operations that infringe fundamental human rights.[xi] Due to the lack of a universal definition of terrorism, there is a danger that some states may develop selective definitions in order to subdue the activities of certain groups. Indeed, this practice has been publicly condemned by non-governmental agencies such as Amnesty International which have highlighted the use of counter-terrorism as a justification for human rights violations on certain individuals.

There is broad consensus that there needs to be a universally accepted definition of terrorism for analytical and practical purposes. Definitional elements shape the type data collected to develop or disprove theories in the study of terrorism.[xii] Moreover, a universally accepted definition would influence domestic policy, international agreements and global strategies to counter terrorism.

The nature of State’s obligations under International Human Rights Law

The International Convention on Economic, Social and Cultural Rights (ICESCR) and related treaties provide the individual and community with a range of guar­antees related to ESC rights.[xiii]  Each of these rights carries with it corre­sponding obligations by the state.  Examining the nature and extent of states’ obligations under international and na­tional human rights standards is essential in order to understand precisely what we can and should expect from states, and what this means for how our rights can best be guaranteed.

Human rights, like all other rights, are based on a relation between two parties.[xiv]  The two par­ties are the claimant of a right and the entity that has an obligation to ensure that the claim is met.  It is important to identify the beneficiaries of a right and the corresponding obligations of the entity that would meet that claim. Human rights standards must be guaranteed by law, which is something only states can do. This is the essence of human rights: not to establish humane ethics, but to put obligations on states for certain minimum norms of conduct vis-à-vis vulnerable persons-and all persons.

The generic Obligations: Respect, Protect and Fulfil

Respect for human rights primarily involves not interfering with their enjoyment. Such obligations are sometimes also called negative obligations, since they tell states what they must not do. Protection is focused on taking positive steps to ensure that others do not interfere with the enjoyment of rights. States have to prevent third parties from destroying this quality of life.  States have to ensure that children are not pre­vented from attending school. The fulfilment of human rights requires States to adopt appropriate measures, including legislative, judicial, administrative or educative measures, in order to fulfil their legal obligations.[xv] States have to guarantee access to education (public or private).  States have to provide for inter­vention in situations of torture to stop it.

The impact of terrorism on human rights

“Acts of terrorism continue to remind us of the very real and direct impact of this scourge on human rights. It destabilizes Governments, undermines civil society, jeopardizes peace and security, and threatens economic and social development.”[xvi]

                                                           -Navi Pillay, UN High Commissioner for Human Rights

Human rights and counter terrorism: the essential relationship

The link between the guarantee of human rights and protection from terrorism cannot be over-emphasized. Combating and ultimately overcoming terrorism will not succeed if the means to secure that society are not consistent with human rights standards.

Counter-terrorism, security, human rights and law enforcement are not mutually exclusive. In the context of the threat of terrorism, they should be designed to work together.[xvii] In most circumstances, they cannot work effectively independent of each other. Counter-terrorism measures need human rights standards to ensure that their implementation does not undermine their very purpose, which is to protect and maintain a democratic society. At the same time, human rights standards may need counter-terrorism measures to ensure that human rights can thrive. What is certain is that human rights are not an optional extra or luxury to any counter-terrorism strategy; human rights must be at the core of that strategy.

In November 2001, a joint statement by the OSCE’s Office for Democratic Institutions and  Human Rights (ODIHR), the UN High Commissioner for Human Rights, and the Council of  Europe reminded governments that:

“While we recognise that the threat of terrorism requires specific measures, we call on all governments to refrain from any excessive steps which would violate fundamental freedoms and undermine legitimate dissent. In pursuing the objective of eradicating terrorism, it is essential that States strictly adhere to their international obligations to uphold human rights and fundamental freedoms.”[xviii]

Terrorism seriously violates human rights

International criminal law often prohibits conduct which infringes values protected by human rights law, without proclaiming those values directly. Many resolutions of the UN General Assembly and the Commission on Human Rights assert that terrorism seriously threatens or destroys basic human rights and freedoms, particularly life, liberty and security, but also the full range of civil and political, and economic, social and cultural rights.[xix] Regional anti-terrorism instruments and the preamble to the UN Draft Comprehensive Terrorism Convention support this idea, while the UN Special Rapporteur on terrorism observes that ‘there is probably not a single human right exempt from the impact of terrorism’.

The Controversial Divide

Though some writers have identified specific human rights as significant casualties in the struggle against terrorism,[xx] it has been argued that the notion of ‘equality of esteem’ which goes to the heart of all human rights is under greatest threat as a result of ‘judging people not by the fact that they simply are but by where they are from and by which culture or faith it is to which they belong.’ The fundamental flaw then springs from the categorization of people into ‘good’ and ‘bad’, as this distinction is seen to be drawn on arbitrary grounds.[xxi]

The disturbing consequence of such a paradigm is that ‘it creates an “ethical dilemma” which leads them to see human rights not as a subject concerned with the powerless individual wherever he or she might be….but rather as an idea which finds its clearest expression in the West…In this way “human is taken out of “human rights,” the particular is superseded by the general, and the subject becomes one that is more about the values than it is about the people.

Sacrifice of civil rights for the curtailment of terrorism risks

The tragic and previously unimaginable events of 9/11 have changed the United States and indeed the world in ways that are still emerging and difficult to comprehend. Leaders in many countries are struggling to find appropriate policies to deal with the new reality that this level of terrorism presents.[xxii]

This is not a new problem and has been a challenge in many countries for many years. Governments combating terrorism in democracies have an additional burden. They are required to balance efficient law enforcement with respect for the civil liberties of their citizens. There is a consensus that all lawful means must be used to prevent such terrible crimes. The problem relates to the legitimacy, and sometimes the lawfulness, of those means. In particular, to what extent can civil liberties be curtailed and normal legal processes circumvented? Too much momentum has been gathered during the past sixty years to allow the recognition and implementation of human rights to be derailed.[xxiii] At the same time there is danger in complacency and the setbacks to the human rights movement since 9/11 must be acknowledged and recognised as a challenge.

Effects of 9/11 in some democracies

Repressive actions by Governments have also been taken in democracies other than the United States of America.

The United Kingdom: Prior to 9/11, the United Kingdom had enacted wide-ranging measures to counter terrorism. It did so predominantly in the face of the Irish Republican Army terrorist activities in London. After 9/11, a new antiterrorism statute was enacted. Its most controversial provision provides for the internment, without trial, of a “suspected international terrorist” if the Home Secretary reasonably believes that such person’s presence in the United Kingdom is a risk to national security, and suspects that such person is a terrorist. If the person is not a United Kingdom citizen, he or she may be detained for an unspecified period of time without charge or trial. There is no appeal to the ordinary courts but only to a government appointed commission.[xxiv] It was this provision that led the United Kingdom to derogate from the human rights provisions of the European Convention on Human Rights.

India: Similarly, the Indian legislation passed in the aftermath of 9/11 substantially invaded the rights of privacy and allowed for the detention of suspected terrorists without trial for periods of up to ninety days. When, a few months ago, a new legislature and executive were voted into power, the whole enactment was repealed by Parliament.

South Africa: Post 9/11 draft South African legislation also made provision for detention without trial for periods of ninety days. After protests from leading politicians who had themselves been held under such provisions by the Apartheid authorities, the Parliamentary Committee on Justice caused these provisions to be removed.

The knock on effect

Since 9/11, in a number of democracies, racial profiling and the detention of illegal immigrants from Muslim countries has become a common occurrence. This cannot be justified unless there is a factual basis that makes it both effective and proportionate to the perceived danger. Disproportionate invasions of civil liberties, especially in the United States, are causing an unfortunate domino effect in other nations. It is being used to justify far more repressive actions. President Mugabe of Zimbabwe and Charles Taylor, the former head of state of Sierra Leone, both relied on the United States’ classification of “unlawful combatant” to justify wholly oppressive actions against journalists critical of their leadership. Leaders in Indonesia have talked about establishing their own “Guantanamo Bay”.

Security v. Liberty: a question of reasonableness

“We’re likely to experience more restrictions on our personal freedom than has ever been the case in our country…It will cause us to re-examine some of our laws pertaining to criminal surveillance, wire-trapping, immigration and so on.”

                                                                                                  -Justice Sandra Day O’Connor[xxv]

It is often said that that there is a trade–off to be had between liberty and security but in fact the debate has become unnecessarily polarised. Why can we as a society only have one without the other?

New thinking is needed to ensure that liberty and security are tied into our national security framework.[xxvi] It is essential that legitimate concerns about terrorism and state infringements into privacy are accommodated in security policy.

As part of its efforts to counter terrorism, a State may lawfully detain persons suspected of terrorist activity, as with any other crime. However, if a measure involves the deprivation of an individual’s liberty, strict compliance with international and regional human rights law related to the liberty and security of persons, the right to recognition before the law and the right to due process are essential. Any such measures must, at the very least, provide for judicial scrutiny and the ability of detained persons to have the lawfulness of their detention determined by a judicial.

Striking a balance

What measures may a democratic state properly take to protect itself in times of emergency? Clearly, not every measure is permissible. Both in times of peace and in times of crisis, it is the legal norms which set the boundaries for what is permissible and what is prohibited. Although the law does not fall silent in times of war, it may occasionally permit a deviation from the legal norms applicable in times of peace. In its hour of crisis a state is not required to sacrifice itself on the altar of the basic rights and freedoms of its citizens, but is entitled to restrict these rights and freedoms in so far as is necessary to effectively deal with its enemies: There is no choice—in a democratic society seeking freedom and security but to create a balance between freedom and dignity on one hand and security on the other. Human rights cannot become an excuse for denying public and state security. A “war on terrorism” waged without respect for the rule of law undermines the very values that it presumes to protect. We must restore the balance between liberty and security by reasserting the human rights framework, which provides for legitimate and effective efforts to respond to terrorist attacks.[xxvii] A balance is needed—a sensitive and difficult balance—between the freedom and dignity of the individual and state and public security.

We should acknowledge and rely upon the legal safety net offered by international human rights norms, which serve as a minimal threshold of reasonableness. In this light, it is clear that indefinite detention and targeted killing of suspected terrorists are both deplorable practices under international law. In addition to circumventing crucial due process safeguards, they both erode the legitimacy of states subscribing to such policies. There is no denying that the post-9/11 legal reality is all about tradeoffs.[xxviii] We must not only invoke the human rights project to vindicate our own rights whenever convenient, but we must also aim to promote the international human rights scheme as a truly enforceable mechanism across the board. As Professor Thomas Franck notes: “The increase in individuals’ human rights is inevitably accompanied by an increase in their responsibility for human wrongs, even when committed under the colour of state authority.”[xxix] Hence, this global campaign against terrorism should not lose sight of human rights and fundamental rules of humanitarian law. It is undeniable that a delicate balance between security and human liberty must be struck. However, we must not forget that human beings form an integral part of the equation.[xxx]

Understanding the “war on terror”

Within hours of the September 11 attacks President Bush declared that the United States was at war.[xxxi]  Shortly, thereafter, he said the “war” “will not end until every terrorist group of global reach has been found, stopped, and defeated.”

About a week later, the world learned how serious the Administration really was about treating the entire world as a war zone. On November 3, 2002, agents of the CIA, using an unmanned Predator drone, launched a Hellfire missile at a vehicle in remote Yemen, killing six men. Yemen recognized no armed conflict on its territory at the time of the strike, nor was the United States at war with Yemen. National Security Adviser Condoleeza Rice explained, however, that “We are in a new kind of war. And we’ve made very clear that it is important that this new kind of war be fought on different battlefields.”[xxxii] The Deputy General Counsel of the Department of Defence for International Affairs said in the global war on terrorism the U.S. could target Al Qaeda suspects and kill them without warning wherever they are found. He indicated that that included targeting persons on the streets of a peaceful city like Hamburg, Germany.[xxxiii]

It is clear that the Administration following September 11 wanted the wartime privileges of killing without warning, detention without trial, and trials under wartime rather than peacetime rules. It has exercised all of these rights quite separately from the wars in Afghanistan and Iraq.

The meaning of war or armed conflict in international law (iternational committee of the red cross?)

A war or armed conflict has two important components: It consists of two or more organized armed groups engaged in protracted and intense armed hostilities. It is said to be existing “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.”[xxxiv] It has been suggested that a worldwide struggle with al Qaeda could meet the definition of armed conflict as long as “protracted” is deemed to include “a conflict that is both spatially dispersed and temporally discontinuous, waxing and waning by fits and starts for over ten years—and provided that such a discontinuous conflict is not disqualified as an armed conflict by describing it as ‘sporadic’.[xxxv]

Some try to argue that a war began on September 11 because the attacks were an “act of war,” or those attacks plus others by al Qaeda during the previous ten years. Wars, however, do not begin with an attack. They begin with a counter-attack. States may have the right to engage in a war of self-defence following an attack. If they chose not to do so, there is no war. War, as discussed above requires exchange, intensity and duration.[xxxvi]

Need for a narrow and definite meaning of war

International law has a definition of war and it refers to places where intense, protracted, organized inter-group fighting occurs. It does not refer to places merely where terrorist suspects are found. Nevertheless, the definition may not be clear enough or comprehensive enough given the lack of international protest against the Bush Administration, especially following the Yemen strike. There appears to be some tolerance for a return to the old days of formalism when a government’s declaration of war was all it took for international law to recognize a de jure war. Yet, in war human beings and the natural world lose important protections. Therefore, it is time to restate and strengthen a narrow definition of war. War should be considered an aberration. It should only be recognized when compelled by the facts: facts of real fighting and situations of emergency where normal peacetime law and protections cannot operate. Doubtful situations should be treated under the law of peace. The human right to life, to a speedy trial, to peacetime due process, and the duty to protect the environment should be respected unless the state is compelled by intense and protracted armed hostilities from doing so.

Post 9/11 policies: the inherent double standards

Since 9/11, much has been written on the legality of the war on terror and, more importantly, on the legal repercussions and changes it has endangered on the international scene. Although there seems to be a consensus in approving U.S.-led worldwide action against members of Al-Qaeda, such efforts were not met with comparable enthusiasm in the case of the Taliban government.[xxxvii]

The United States’ rationale of pre-emptive action in Iraq did not generate the expected approval among the international community, especially within the UN Security Council framework. Support for the U.S. led effort has continued to wane. One criticism consistently voiced is that the global counter-terrorism campaign is subverting crucial categories in international law.[xxxviii]

As a direct consequence of the war on terror, international human rights of suspected terrorists often take a back seat to more pressing needs, as required by any emergency situation. This reality is further exacerbated by the legal characterization and treatment of suspected terrorists espoused by the Bush Administration. In mounting Operation Enduring Freedom, the United States was adamant in expounding that Taliban members would be stripped of prisoner of war (“POW”) status, while it also claimed that members of the Al Qaeda network would not benefit at all from the protection of the Geneva Conventions.

Denial of prisoner of war status to the Taliban government

When a doubt arises as to the status of a prisoner, there is a presumption of POW (Person of Interest) status until a competent tribunal has determined the status of said suspect.[xxxix] The main advantage of POW status lays in immunity against prosecution for acts committed in combat but does not cover crimes falling outside the Geneva Convention.

The underlying rationale behind the United States’ decision to forego the application of POW status to the Taliban government was, at best, poorly-justified. To systematically deny this status, and the rights flowing from it, to Taliban members, which, based on the publicly available facts, did not participate in the planning or execution of the 9/11 attacks,[xl] seems hardly defensible. However, to substantiate this position through a flimsy application of the Geneva Conventions, namely by stripping Taliban members of POW status because their black turbans were not sufficiently visible or distinctive and because they did not conduct their operations in accordance with the laws and customs of war, as the Bush administration did, yields perverse results for the international human rights framework.

Denial of protection under the Geneva convention to al Qaeda members

The decision to deny Al Qaeda members the protection afforded by the Geneva Conventions is equally problematic under international law. Before the response to 9/11 was deployed, international human rights discourse had always specifically recognized two types of individuals in times of turmoil, with no margin for alternate designations: prisoners of war and protected persons. With regard to Al Qaeda, the Bush administration created a third category: “international outlaws.”

This action is tantamount to an affront to the current human rights scheme. While fundamental freedoms have sometimes been curtailed in times of chaos, human rights proponents should nevertheless voice their opposition, as a substantial portion of the Geneva Conventions is being undermined by the war on terror. Although it has sometimes proved difficult to implement the rule of law in the Middle East,[xli] it does not follow that Western forces should short-circuit the application of well established legal principles and capitalize on self-serving and superficial interpretations of international law in favour of strategic or political gains.[xlii]

Conclusion

Did the events of September 11, 2001, change the world forever? Is the possibility that a terrorist cell will detonate weapons of mass destruction in a large city so imminent a threat that the entire structure of international law and society must bend to the imperative of doing whatever is necessary to meet this threat regardless of the human rights consequences? Can we afford universal human rights norms in a time of perpetual crisis and exceptional danger? Will there be a “war on terrorism” exception to the international human rights framework?

These questions will define the landscape of human rights practices for a long time. Terrorist threats have existed throughout modern history, and the importance of deterring and preventing terrorist acts is of central importance. The impulse to abandon human rights norms in times of fear and crisis is short-sighted and self-defeating. As the revelations of shocking abuses at Abu Gharib prison have demonstrated, the world will not easily accept inhumane treatment in any context, and such treatment will tarnish and undermine even legitimate security operations.[xliii]

Need of the present times

We now live in an era dominated by security concerns, while chasing a threat that is new and polymorph. Whether obscured by intricate information networks, new technologies like the Internet, the sophisticated cellular structure of organizations like Al Qaeda, complex financial systems, or convoluted political realities, certain legal protections have begun to blur indelibly. In the upcoming years, executive branches and judiciaries across the globe will engage in balancing acts in an attempt to balance security and liberty. With this in mind, we must remember that no balancer can ever be completely impartial: we all carry some forms of prejudice, life experience, and baggage.[xliv]

At the same time, we must also stress that the war on terror cannot operate in a legal or conceptual vacuum; it must absolutely be co-extensive with a set of international norms and values underpinned by the rule of law.[xlv] If we fail to adequately promote and enforce the international human rights scheme, we will continue to witness results similar to the aftermath of 9/11: deleterious consequences on the social, economical, and political levels, unnecessary civilian casualties, indiscriminate and irrational violence or counterattacks, a widening of the gap between Western and Arab societies, a recrudescence of anti-Semitic, anti-Muslim, and anti-West sentiments, an explosion of guerrilla warfare as currently seen in Iraq, and human rights abuses across the board.[xlvi] It is no secret that international human rights norms embody the “common interest of all humanity” and that their aim is to generate the right incentives so that individual behaviour conforms to the law.

The prosecution of terrorists and war criminals can be successfully pursued through normal judicial channels, be they national or international, without using the Geneva Conventions as a screening device to selectively or unilaterally confer protection upon prisoners, while also stripping countless innocent civilians of their fundamental rights. It follows that prisoners and captives in the war on terror should be afforded fundamental international protections, not based on their particular membership to a given group, belief system, or nation, but rather as an irreducible acknowledgement of their status as human beings.

Edited by Kanchi Kaushik

[i] United Nations Human Rights, Office of High Commissioner Human Rights, available at www.ohchr.org

[ii] 1993 Vienna World Conference on Human Rights

[iii] Article 1 of the Universal Declaration of Human Rights

[iv] R.R. Baxter, A Sceptical Look at the Concept of Terrorism, Arkon Law Review 7 (19973/74)

[v] Christian Walter, Defining Terrorism in National and International Law, available at www.jsyor.com

[vi] Gilbert Guillaum, Terrorism and International Law, International and Comparative Law Quarterly, Vol. 53

[vii] Krzystof Skubiszewski, Definition of Terrorism, (1989) 19 Israel Yearbook on Human Rights 39, 39

[viii] Jean-Marc Sorel, Some Questions About the Definition of Terrorism and the Fight against its Financing (2003) 14 European Journal of International Law 365, 368

[ix] International Convention for the Suppression of the Financing of Terrorism, opened for signature 9 December 1999, 2178 ILM 229

[x] The Difficulties in Defining Terrorism Under International Law, available at www.humanrights.ie

[xi] Leonard Weinberg, The Challenges of Conceptualising Terrorism, Terrorism and Political Violence, Vol. 16 (2004)

[xii] Eric Chase, Defining Terrorism: A Strategic Imperative, available at www.smallwarsjournal.com

[xiii] Mowbray, Alastair, The Development of Positive Obligations Under the European Convention on Human Rights by the European Court of Human Right,. Hart Publishing (2004)

[xiv] Xenos, Dimitris, The Positive Obligations of the State under the European Convention of Human Rights, available at www.jstor.com.

[xv] Human Rights, Terrorism and Counter Terrorism, Office of The United Nations High Commissioner for Human Rights, Fact Sheet No. 32

[xvi] Security Council Counter Terrorism Committee, available at www.un.org

[xvii] Counter Terrorism, Protecting Human Rights; A Manual, Published by The OSCE Office for Democratic Institutions and Human Rights(ODIHR) available at www.osce.org

[xviii] Joint statement by Mary Robinson, UN High Commissioner for Human Rights, Walter Schwimmer, Secretary General of the Council of Europe, and, November 29th 2001, available at www.unhcr.ch

[xix] Ben Saul, Defining Terrorism to Protect Human Rights, The University of Sydney, October 2008, available at www.ssrn.com

[xx] A.P. Schmid, “Terrorism and Human Rights: A Perspective from the United Nations” in M. Ranstorp and P.Wilkinson

[xxi]  Michael Ignatieff, The Lesser Evil, Political Ethnics in an Age of Terror (Princeton University Press 2004)

[xxii] Richard Goldstone, The Tension Between Combating Terrorism and Protecting Civil Rights, available at www.humanrights.uconn.edu

[xxiii] Barak, A., A Judge on Judging: The Role of a Supreme Court in a Democracy, Harvard Law Review(2002, November)

[xxiv] Dicey, A.V., The Law of the Constitution (10th ed.). London: Macmillian (1973).

[xxv] New York Times, September 29th 2001

[xxvi] Darren W. Davis and Brian D. Silver, Civil Liberties vs. Security: Public Opinion in the Context of the Terrorism Attacks on America, available at www.jstor.com

[xxvii] Sen, Amartya Identity and Violence, Allen Lane (an imprint of Penguin Books), England 2006

[xxviii] Erik Eckholm & David Johnston, Qaeda Suspect Sound Asleep at Trail’s End, N.Y. TIMES, March 3, 2003

[xxix] Dinda Jouhana & Richard C. Paddock, Top Indonesian Suspect Leaves Jail, L.A. TIMES, June 14, 2006

[xxx] Thomas Hemingway, Wartime Detention of Enemy Combatants: What If There

Were a War and No One Could Be Detained Without an Attorney, 34 DENV. J. INT’L L. & POL’Y 63 (2006)

[xxxi] George W. Bush, President’s September 11, 2001 Address to the Nation on the Terrorist Attacks, 37 WEEKLY COMP. PRES

[xxxii] Interview: Tony Snow and Condoleeza Rice (FOX NEWS SUNDAY, Nov. 11, 2002), available at http://www.foxnews.com/printer_friendly_story/0,3566,69783,00.html

[xxxiii] Anthony Dworkin, Crimes Of War Project, Law And The Campaign Against Terrorism: The View From The Pentagon (Dec. 16, 2002), available at http://www.crimesofwar.org/print/onnews/pentagon-print.html

[xxxiv] Prosecutor v. Tadić, Case No. IT–94–I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 70 (Oct. 2, 1995).

[xxxv] Mary Ellen O’Connell, When is War Not A War? The Myth of The Global War On Terror, available at www.ssrn.com

[xxxvi] Ibid

[xxxvii] Michael Byers, Terrorism, the Use of Force and International Law After 11 September, 51 Int’l & Comp. L.Q. 401, 408 (2002)

[xxxviii] Noah Feldman, Choices of Law, Choices of War, 25 Harv. J.L. Pub. Pol’y 457 (2002).

[xxxix] Article 5 of the Geneva Convention III

[xl] Manooher Mofidi & Amy E. Eckert, “Unlawful Combatants” or “Prisoners of War”: The Law and Politics of Labels, 36 Cornell Int’l L.J. 59, 75 (2003).

[xli] Muhamad Mugraby, Some Impediments to the Rule of Law in the Middle East and Beyond, 26 Fordham Int’l L.J. 771 (2003).

[xlii] Sabrina Tavernise, Dexter Filkins & Khalid W. Hassan, Scores Are Dead After Violence Spreads In Iraq, N.Y. Times, Sept. 13, 2004

[xliii] Paul Hoffman, Human Rights and Terrorism, Human Rights Quarterly, available at www.heinonline.com

[xliv] Vincent Joel Proulx, If The Hat Fits, Wear It, If The Turban Fits, Run For Your Life: Reflections On The Indefinite Detention And Targeted Killing Of Suspected Terrorists,  Hastings Law Journal, available at www.ssrn.com

[xlv] Tom Bingham, Personal Freedom and the Dilemma of Democracies, 52 Int’l & Comp. L.Q. 841, 842 (2003).

[xlvi] Donald A. Dripps, Terror and Tolerance: Criminal Justice for the New Age of Anxiety, 1 Ohio St. J. Crim. L. 9, 10 (2003)

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