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Topic- Terrorism and Counter –Terrorism:
In Respect of Human Rights
Submitted to: Submitted by:
Ms. Sangeeta Jakhar Mamta Yadav
Assistant Professor (SLS) BA LLB 4th^ Year
Mody University 412
INTRODUCTION
The human cost of terrorism has been felt in virtually every corner of the globe. The United Nations family has itself suffered tragic human loss as a result of violent terrorist acts. 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. Security of the individual is a basic human right and the protection of individuals is, accordingly, a fundamental obligation of Government. In recent years, however, the measures adopted by States to counter terrorism have themselves often posed serious challenges to human rights and the rule of law. States have returned persons suspected of engaging in terrorist activities to countries where they face a real risk of torture or other serious human rights abuse, thereby violating the international legal obligation of non-refoulement. The independence of the judiciary has been undermined, in some places, while the use of exceptional courts to try civilians has had an impact on the effectiveness of regular court systems. Repressive measures have been used to stifle the voices of human rights defenders, journalists, minorities, indigenous groups and civil society. These practices, particularly when taken together, have a corrosive effect on the rule of law, good governance and human rights. They are also counterproductive to national and international efforts to combat terrorism. Respect for human rights and the rule of law must be the bedrock of the global fight against terrorism. This requires the development of national counter-terrorism strategies that seek to prevent acts of terrorism, prosecute those responsible for such criminal acts, and promote and protect human rights and the rule of law.
Specifically, the research work and Fact Sheet is intended to:
- Raise awareness of the impact of terrorism and counter-terrorism on the enjoyment of all human rights;
- Provide a practical tool for practitioners dealing with terrorism, counter-terrorism measures and human rights;
- Provide guidance on ensuring compliance with human rights when countering terrorism;
- Illustrate specific human rights challenges in countering terrorism.
adopt a comprehensive definition of terrorism, In 1994, the General Assembly’s Declaration on Measures to Eliminate International Terrorism, set out in its resolution 49/60, stated 6 that terrorism includes “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes” and that such acts “are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.”^3 The General Assembly is currently working towards the adoption of a comprehensive convention against terrorism, which would complement the existing sectoral anti-terrorism conventions. Its draft article 2 contains a definition of terrorism which includes “unlawfully and intentionally” causing, attempting or threatening to cause: “(a) death or serious bodily injury to any person; or (b) serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or (c) damage to property, places, facilities, or systems…, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.” 4
C. The impact of terrorism on human rights
Terrorism aims at the very destruction of human rights, democracy and the rule of law. It attacks the values that lie at the heart of the Charter of the United Nations and other international instruments. Terrorism has a direct impact on the enjoyment of a number of human rights, in particular the rights to life, liberty and physical integrity. The destructive impact of terrorism on human rights and security has been recognized at the highest level of the United Nations, notably by the Security Council, the General Assembly, the
3 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, I.C.J. Reports 1986, paras. 172– 201 4 United Nations General Assembly, Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, Sixth session (28 January-1 February 2002), Annex II, art. 2.1.
former Commission on Human Rights and the new Human Rights Council. 5 Specifically, Member States have set out that terrorism:
- Threatens the dignity and security of human beings everywhere, endangers or takes innocent lives, creates an environment that destroys the freedom from fear of the people, jeopardizes fundamental freedoms, and aims at the destruction of human rights;
- Has an adverse effect on the establishment of the rule of law, undermines pluralistic civil society, aims at the destruction of the democratic bases of society, and destabilizes legitimately constituted Governments;
- Has links with transnational organized crime, drug trafficking, money-laundering and trafficking in arms, as well as illegal transfers of nuclear, chemical and biological materials, and is linked to the consequent commission of serious crimes such as murder, extortion, kidnapping, assault, hostage-taking and robbery; 6
- Has adverse consequences for the economic and social development of States, jeopardizes friendly relations among States, and has a pernicious impact on relations of cooperation among States, including cooperation for development; and
- Threatens the territorial integrity and security of States, constitutes a grave violation of the purpose and principles of the United Nations, is a threat to international peace and security, and must be suppressed as an essential element for the maintenance of international peace and security. In order to fulfil their obligations under human rights law to protect the life and security of individuals under their jurisdiction, States have a right 7 and a duty to take effective counter-
5 in particular, Security Council resolutions 1373 (2001) and 1377 (2001); General Assembly resolutions 48/122, 49/185, 50/186, 52/133, 56/160 and 58/174, as well as its Declaration on Measures to Eliminate International Terrorism (resolution 49/60); Commission on Human Rights resolutions 2001/37 and 2004/44, Human Rights Council resolution 6/28 and its recent resolution on the protection of human rights and fundamental freedoms while countering terrorism (28 March 2008). 6 Human Rights Committee, general comment N° 6 (1982). 7 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd rev. ed. (N.P. Engel, 2005), p. 121
- Enjoy restitution and compensation, as appropriate; and
- Receive the necessary material, medical, psychological and social assistance. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights 11 Law and Serious Violations of International Humanitarian Law, adopted in 2005 by the General Assembly in its resolution 60/147, underscore the need for victims to be treated with humanity and respect for their dignity and human rights, and emphasize that appropriate measures should be taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families. 9
II. HUMAN RIGHTS AND COUNTERTERRORISM
As seen above, terrorism has a direct impact on the enjoyment of human rights. As such, States have a duty to take effective counterterrorism measures.
A. The promotion and protection of human rights while countering terrorism
Just as terrorism impacts on human rights and the functioning of society, so too can measures adopted by States to counter terrorism. Effective counter-terrorism measures and the protection of human rights are complementary and mutually reinforcing objectives which must be pursued together as part of States’ duty to protect individuals within their jurisdiction. There has been a proliferation of security and counter-terrorism legislation and policy throughout the world since the adoption of Security Council resolution 1373 (2001), much of which has an impact on the enjoyment of human rights. Most countries, when meeting their obligations to counter terrorism by rushing through legislative and practical measures, have created negative consequences for civil liberties and fundamental human rights. The United Nations Global Counter-Terrorism Strategy reaffirms the inextricable links between human rights and security, and places respect for the rule of law and human rights at the core of national and international counter-terrorism efforts. Through the Strategy, Member States have committed to ensuring respect for human rights and the rule of law as the fundamental basis of the fight against terrorism. To be effective, this should include the development of national
9 the European Convention on the Compensation of Victims of Violent Crimes; Recommendation N° R (85) 11 of the Committee of Ministers on the Position of the Victim in the Framework of Criminal Law and Procedure.
counter-terrorism strategies that seek to prevent acts of terrorism and address the conditions conducive to their spread; to prosecute or lawfully extradite those responsible for such criminal acts; to foster the active participation and leadership of civil society; and to give due attention to the rights of all victims of human rights violations. 10
III. SPECIFIC HUMAN RIGHTS CHALLENGES IN THE CONTEXT OF
TERRORISM AND COUNTER-TERRORISM
As discussed previously, both terrorism and counter-terrorism affect the enjoyment of human rights. While it is not possible to provide an in-depth analysis of all human rights concerns in the context of terrorism and counter-terrorism measures, this paper identifies a selection of current and emerging human rights challenges.
A. The right to life
States have adopted to protect individuals from acts of terrorism have themselves posed grave challenges to the right to life. They include “deliberate” or “targeted killings” to eliminate specific individuals as an alternative to arresting them and bringing them to justice. The Human Rights Committee has stated that targeted killings should not be used as a deterrent or punishment and that the utmost consideration should be given to the principle of proportionality. State policies should be spelled out clearly in guidelines to military commanders and complaints about the disproportionate use of force should be investigated promptly by an independent body. Before any contemplation of resort to the use of deadly force, all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted. The Special Rapporteur has suggested that States that adopt shoot-to-kill policies for dealing with, for example, suicide bombers “must develop legal frameworks to properly incorporate intelligence information and analysis into both the operational planning and post incident accountability phases of State responsibility.” They must further ensure that “only such solid information, combined with the adoption of appropriate procedural safeguards, will lead to the use of lethal force.^11
10 A more secure world…, para. 21. 11 See A/58/40 (vol. I), para. 85 (15)
intelligence about terrorist activities). Adherence to due process and the right to a fair hearing are essential for the proper safeguarding of a person’s liberty and security.
D. Profiling and the principle of non-discrimination
The principles of equality and non-discrimination are central to human rights law and are recognized as norms of jus cogens 14. The Inter-American Court of Human Rights, for example, has stated that “the principle of equality before the law, equal protection before the law and non- discrimination belong to jus cogens, because the whole legal structure of national and international public order rests on it and it is a principle that permeates all law.” In the specific context of counter-terrorism, the Committee on the Elimination of Racial Discrimination has said that the principle of non-discrimination is not capable of limitation since it has become a norm of jus cogens. This is reflected within various international and regional documents on the promotion and protection of human rights while countering terrorism. Generally speaking, profiling is a filtering process involving a single indicator or a cluster of indicators that, when grouped together, present the characteristics of a high-risk person, passenger or consignment. When law enforcement agents use broad profiles that reflect unexamined generalizations, including for the purposes of countering terrorism, these practices may constitute disproportionate interference with human rights. In particular, if one of the indicators on which profiling is based is a person’s ethnic or national origin, this raises the question of the conformity of profiling with the principle of non-discrimination. 15
E. Due process and the right to a fair trial
Guaranteeing due process rights, including for individuals suspected of terrorist activity, is critical for ensuring that anti-terrorism measures are effective and respect the rule of law. The human rights protections for all persons charged with criminal offences, including terrorism- related crimes, include the right to be presumed innocent, the right to a hearing with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, and the right to have a conviction and sentence reviewed by a higher tribunal satisfying the same 14 Universal Declaration of Human Rights(arts. 1 and 2) and International Covenant on Civil and Political Rights (art. 26). See further Digest of jurisprudence… (chap. III, sect. K). 15 Inter-American Commission on Human Rights, “Report on terrorism and human rights”, para. 353.
standards. International humanitarian law provides for substantially similar protections for the trial of persons in the context of armed conflicts.
F. Freedom of expression and the prohibition of incitement to terrorism
Incitement to terrorism is a strategy commonly used by terrorist organizations to further support for their cause and call for violent action. The Security Council has identified it as conduct which is contrary to the purposes and principles of the United Nations and called on States to adopt measures to prohibit and prevent it.89 Proscribing incitement to terrorism is integral to the protection of national security and public order, which are both set out as legitimate grounds for limiting freedom of expression in article 19 (3) of the International Covenant on Civil and Political Rights. It is also consistent with its article 20 (2), which require States to prohibit any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Great care must be taken, however, to ensure that any restriction on the right to freedom of expression is both necessary and proportional.^16
G. Freedom of association
The right to freedom of association, like the right to freedom of expression, is a platform for the exercise and defence of other rights, such as political participation rights and cultural rights. Human rights defenders often use this right as a legal basis for their action. It is central to a democratic society.
H. Surveillance, data protection and the right to privacy
Article 17 of the International Covenant on Civil and Political Rights prohibits States parties from interfering with the privacy of those within their jurisdiction and requires them to protect those persons by law against arbitrary or unlawful interference with their privacy. Privacy includes information about an individual’s identity, as well as the private life of the person. 17 Most States have stepped up security at airports and other places of transit, for instance by (^16) Security Council resolution 1624 (2005), para. 1 17 Human Rights Committee, views on communication N° 453/1991, Coeriel et al. v. the Netherlands, 31 October 1994 (A/50/40 (vol. II), annex X, sect. D). As to the meaning and extent of “private life” see, for example, European Court of Human Rights, Amann v. Switzerland, N° 27798/95, Judgement of 16 February 2000, and Rotaru v. Romania, N° 28341/95, Judgement of 4 May 2000.
