Terrorism And Human Rights: Use Of Force As A Response To Terrorism
TOPIC: - Terrorism
And Human Rights: Use Of Force As A Response To Terrorism
BY: HARSHIKA KAPOOR
LLM-2nd
YEAR
ILS,
PUNE
TOPIC: - Terrorism And
Human Rights: Use Of Force As A Response To Terrorism
ABSTRACT
Every
person is entitled to avail the basic human rights, on a simple pretext of he
being a human being and that being such, he has a rightful claim upon the said
rights. Human rights treaties and other key international legal instruments
have also acknowledged this idea. Despite the fact that human rights are, on
the whole, subject to derogation in light of the needs of the time, there are
some rights that simply cannot be derogated. In the eyes of international
bodies and organisations, there is no difference between those who engage in
terrorist activities and those who claim to be acting against them in order to
eradicate them; the violations committed during counter-terrorism operations
are just as grave in nature as the acts of terrorism themselves. Therefore even
the ‘Counter Terrorism Operations’ are to be discussed upon, apart from the
acts of terrorism which are the primary cause of violation of human rights.
In
the instant submission, we are going to look into certain aspects of “International
Human Rights Law” and understand as to how terrorism adversely affects the
International Human Rights Law. Apart from this we are going to analyze the
concept of Terrorism, to a greater extent and what does a ‘terrorist act’ mean,
under the arena of the International Law. Further we are going to look into the
impact of terrorism on the human rights of people globally and that as to how
the human rights could be protected while countering terrorist activities. Moreover,
we shall ponder over the “Specific Human Rights Challenges in the context of
terrorism”. Apart from the abovementioned sub-topics, we shall also be looking
into other sub-topics, as and when the need for the same arises.
Here,
Doctrinal Approach has been adopted in order to make this project. It would
deal with the current scenario and would try to throw some light upon future
prospects in relation to this topic by giving certain suggestions.
Key Words-
Counter Terrorism
Measures, Derogation, International Humanitarian Law, Terrorism.
SYNOPSIS
·
Statement of the
Problem:-
Terrorism
as we all appreciate is a great threat to the human life, which constrains the
individual human being to avail and exercise their basic human rights, which
they are naturally entitled to get as a human. Terrorism, as defined under the
British Terrorism Act, 2000, is any activity which tries to influence the policy
of any government, anywhere in the world, including, for example by damaging
the public properties. Terrorist act are generally understood to be those acts
of violence which adversely affects the life of civilians in a state.
Considering the above mentioned definition of a ‘Terrorist Act’, we tend to
condemn all sorts of terrorist activities and sympathize with the ones who
fight against these acts and thereby prevent the happening of these acts. But,
as has already been observed and analysed by the International Organizations,
that the human rights violations that take place during the counter terrorism
operations, is much more than the act of terrorism itself. This has made no
difference amongst those who perform the terrorist activities and the ones who
claim to stand against these activities.
·
Survey of existing
literature:-
Many
thinkers of International law have come forward in order to study the impact of
terrorism on the human rights across the globe and to analyze as to how and to
what extent the human rights are being violated. In relation to present
submission, through articles which dealt with the challenges to the principle
of International Human Rights due to terrorism and ways to tackle the same.
Moreover, we went through the way the right way to conduct and carry out the
counter terrorism operations.
·
Identification of
issues:-
In
the instant submission, we would be focusing on understanding the link between Terrorism
and Human Rights violation in the international arena. In order to analyze the
concepts in a proper manner, there is a need to refer to various United
Nation’s Conventions in this regard and consider the various recommendations of
the United Nations human rights committee. Further, in the present submission, we
would be dealing with specific human rights challenges in the context of
terrorism.
·
Objective and scope of
research:-
The
present submission has touched the aspect of International Terrorism and its
effects on the International Humanitarian Law. Linking the two, would help us
understand as to how the rampant terrorist activities that are taking place are
adversely affecting the basic human rights of the people. The main objective
behind this research is to highlight the challenges that would arise in the
context of terrorism and combating the terrorist activities. Further, to manage
the counter terrorist acts is another objective of this research.
·
Research Methodology
adopted:-
For
this study, we elected to use a doctrinal research approach. Research on a
given thesis is being conducted by using logic to an examination of relevant
statutes and precedents. Legal reasoning and analytical deduction are used to
systematically organise and investigate legal propositions and legal
institutions, as well as analyse and organise the results of case studies. Pure
theoretical research is another name for this methodology.
·
Probable outcome:-
Probably,
by virtue of this article we would be able to analyze the extent to which,
terrorist activities are rampant internationally and understand the ways to
counter the same, specifically emphasizing upon the conduction of the counter
terrorism operations.
·
Tentative Chapterisation:-
a) The
Nature of human rights;
b)
International Human Rights Law;
c) Terrorism;
d) Protection
of human rights while countering terrorism;
e) Prescription by Law;
f) Specific
Human Rights challenges in the context of terrorism;
g) State
Violations;
h) Conclusion.
·
Nature
of Human Rights:-
Human
rights are the universal values and safeguards that shield individuals and
communities from state acts that threaten their most basic liberties and the
principles upon which human dignity rests. Since human rights essentially
belong to humans and are separate from and indivisible from other rights, it
follows that human rights are universal.
Human
rights are predicated on the idea that everyone has the right to be treated
with respect and dignity without any sort of discrimination. The grant of human
rights is based upon the following two principles:-
a) Firstly
that, they are being characterized by being- Inalienable and equally applicable
to all, and,
b) Secondly,
the duty to maintain and to make available the very basic rights to every
person by virtue their humanity alone.
The
idea of bringing the basic human rights to the forefront was just to put a halt
to the arbitrary usage of the state power. The human rights can be understood
as those rights which can have a bearing on the relationship between the state
and the individuals. [1]As
far as the bearing upon the relation between the state and individuals is
concerned, the basic human rights of the individuals is required to be
safeguarded against the arbitrary actions of the state and, on the other hand,
the state should strive to achieve a parity among the relation between the
individuals themselves, by safeguarding the individual rights from being infringed
by other individual.
In
today’s scenario, where, protection and promotion of the basic human rights of
the people is observed to be one of the duties of the state, it is a step which
infact would ensure such safeguard and invite the imposition of a sanction,
where any action to safeguard the basic rights is not undertaken.
·
International
Human Rights Law:-
Human
rights law is concerned with and seeks to defend the rights of all people,
whether they are criminals, terrorists, or just regular folks. Considering that
fighting terrorism shouldn't interfere with protecting people's human rights,
several countries have agreed to adopt measures to do so in accordance with
their commitments under international law, international human rights law, or
humanitarian law. Certain rights, such as the right to life and freedom from
torture, cannot be compromised under any circumstances and must be upheld at
all times.
By
virtue of the Security Council Resolution of 2003 and other resolutions, it was
established that all states should take all steps in combating terrorism in
accordance with the obligations of these states under the regime of
international law, and the Counter Terrorism Committee (CTC) was established in
2001. To ensure that a person has not taken part in terrorist action, nations
must take precautions before awarding refugee status. This step must comply
with all applicable laws of domestic and international law, including
international human rights norms. In 2004, the UN Security Council established
the Counter-Terrorism Committee Executive Directorate (CTED) to collaborate
with the UN High Commissioner for Human Rights. In order to ensure that human
rights are protected while countering terrorism, the Directorate was given the
responsibility of coordinating with the High Commissioner for Human Rights.
The
CTED is mandated to:-
1. The
Committee's duties include: advising the Committee, including for its ongoing
dialogue with states on their implementation of resolution 2001;
2. advising
the Committee on the appropriate measures to be taken to implement the
provisions of resolution 2005 and observing that such measures are complying
with the obligations under the international law; and
3. liaising
with the Office of the High Commissioner for Human Rights and, as appropriate,
with other human rights organisations.
The
abovementioned guidelines shall be adopted in order to prevent the violation of
the human rights and to ensure that the universally recognized human rights
standards are followed. This is because of the fact that, apart from the
terrorist activities, even the counter terrorism policies adopted may restrict
the human rights of the individuals.[2]
At
international level, “there are two different schools of thought regarding the
strategy employed by them to counter terrorism”. One of them being, the British
School according to which performance of terrorist acts is equivalent to a
crime and therefore it encourages the adoption of measures to control it
through local enforcement agencies, on the other hand, there is American
School, according to which terrorist acts are equivalent to the war situations
and allows the use of military forces to combat.
·
Terrorism:-
In
order to understand the relationship between “Terrorism and Human Rights”, it is
important for us to understand the meaning of “Terrorism”. As defined under “Section 1 of the British Terrorism Act, 2000 as any activity which is defined to
influence the local policies of a particular state government, anywhere in the
world, including by, for example, damage to the property”.
Terrorism
is generally understood as an act, which creates a feeling of terror among the
civilians and civilian populations. Although the term terrorism has not been
defined specifically anywhere in any legislation, but it has been made
understandable through the usage of different words in a “number of
International Treaties and other international and regional instruments”. [3]These
treaties and instruments have included a variety of acts which would fall under
the ambit of Terrorism. For example- the “General
Assembly’s Declarations on Measures to Eliminate International Terrorism, 1994”,
has defined the term “Terrorism” as- “a state where the criminal acts are
intended to provoke or incite terror in the minds of the people”. The United
Nation General Assembly is currently working towards the adoption of a
comprehensive understanding on “Terrorism” which has been defined under its
draft Article 2, according to which “Terrorism” is defined as follows:-
“Unlawfully
and intentionally causing, attempting or threatening to cause:
a) Death
or serious bodily injury to any person,
b) Serious
damage to public and private property, including the place of public usage as
that provided by the local authorities or the government, or
c) To
cause a serious damage to facilities or to property resulting in or likely or
likely to result in an economic lossor compelling a government to restrain from
adopting a particular policy or to carry out a particular act”.
Now
that we have understood the meaning of the term “Terrorism”, it is now
pertinent for us to understand about the term “Terrorist Act”. A “Terrorist Act” is said to have been committed
when:-
a) The
actions of the terrorist create a sense of fear and insecurity in the minds of
the people, or in the minds of any particular section of society, where there
is an excessive usage of bombs, dynamites or any other such lethal instrument
or fire arms of such sort as to cause death or are likely to cause death of the
people, or to cause damage or destruction on a large scale or to prevent the
public servants from discharging their lawful duties, or;
b) The
commission of the scheduled offence which has an effect of creating an adverse
impact upon the harmony and peace of different sections of the society, or;
c) Commits
an act of gang rape, child molestation or any other offence.
The
European Union sees the “Terrorism Acts” as those which aim at:-
a) Seriously
intimidating a population,
b) Unduly
compelling a government or an international organization to do or refrain from
doing something,
c) Seriously
destabilizing or destroying the fundamental political, constitutional, economic
or social structures of a country or an international organization.
These
objectives can be achieved through a wide range of illegal acts. They range
from attack to individual life to cutting off vital services essential for the
survival of the society and other miscellaneous threats like- hijacking,
kidnapping and other forms of criminal activity. According to the definition
given by the European Union, “Terrorism” is not an ideology or a movement but
infact it’s a tactic adopted for the accomplishment of certain goals.
Several
conventions have been adopted in recent years to counteract terrorist
activities; these accords require states to implement various counterterrorism
measures and give legal help. The enforcement of human rights and the fact that
many states have been prosecuted for conduct contributing to human rights
abuses can be better understood with knowledge of the connection between human
rights law and international criminal law.
In
view of the foregoing, the question "Does terrorism actually work?"
may appear rhetorical, yet this is not the case. Weighing the psychological and
emotional effects of terrorism aside, it is important to determine if and to
what extent terrorists have been able to influence state policies, or if they
have been effective in coercing states to act in a particular way. To begin,
it's vital to consider the terrorists' ultimate objectives and the methods they
use to carry them out. Terrorists are viewed as too weak to enforce their will
directly, therefore they try to persuade their targets that they are more
determined and capable of imposing costs on them than they actually are. Here
are five long-term aims terrorists have been pursuing through their violence:-
a) Regime
Change;
b) Territorial
Change;
c) Policy
Change;
d) Status
Quo Maintenance;
e) Maintaining
Social Control
And,
the strategies through which these goals and objectives are accomplished:-
1) Attrition,
2) Intimidation,
3) Provocation,
4) Spoiling,
and,
5) Outbidding.
After
conducting the necessary research on the strengths and weaknesses of various
techniques, the authors in this field came to the conclusion that
"Information" is a significant aspect in the success of various
terror campaigns. Terrorists need to know how to exactly convey their desire to
the people ahead of time, and they need to be well informed on the subject.
Success with counterstrategies is also dependent on data. The study also drew a
second conclusion, which had to do with the kind of regime that was the target
of the terrorist attacks. This analysis led to the conclusion that democracies
are more vulnerable to terrorist attacks than other types of governments.
One
of the most influential theorists in this area, "Robert Pape,"
suggested that the weaker actor, the attacker, is the one who causes
considerable devastation to the property and other amenities made available by
the local authority or the government. Terrorists' readiness to give their own
life for their cause is indicative of how seriously they take their mission to
destroy. Terrorists, by picking a democracy as their target, are more likely to
face a restrained response, because democracies are known for being selective
when it comes to the use of force. Acts that are only lightly penalised or not
punished at all tend to be repeated. However, it must be noted that terrorists
may only be able to successfully coerce governments if they seek the
realisation of moderate aims and do not attempt to force states to forsake
their critical interests. Terrorist groups are more likely to achieve their
goals if they focus on military and political targets and less on the civilian
population, according to a study. This is because attacks on civilians are
often seen as evidence that terrorists want to wipe out an entire society along
with its norms and values, which leads states to respond defensively.
Therefore, it has been established that terrorism is a defective means of
coercion since attacks on the society and its values are viewed by the state as
an existential danger, regardless of the actual policy intentions of the
terrorists.
The
goal of this research was to take stock of where we are in terms of terrorism's
development and where we might go from here. We are currently living in the
fourth stage of terrorism, which follows three previous phases over the past
120–130 years. One of the most well-known terrorist organisations, Al Qaeda,
has changed and adapted so much in recent years that it has outlasted every
military effort to eradicate it. Plus, it has managed to spread its influence
to the Muslim communities that already exist in European countries. For very
some time, Al Qaeda has not existed as a terrorist organisation, but rather as
a religious organisation that speaks for a certain community. If it were a
conventional terrorist organisation, its destruction could be reasonably
predicted within a few years. There are already second-, third-, and even
fourth-generation Al Qaeda members, and the group seems to be following a
reasonably consistent strategy and clearly outlining its aims. In spite of
military suppression, it continues to enjoy widespread support, as evidenced by
the success of insurgencies in Iraq and Afghanistan. Since this terrorist group
is immune to the usual factors that lead to their death, and has expanded its
influence, reach, and resources to an unprecedented level, the current scenario
is quite concerning, to say the least. Nonetheless, despite everything, it is
not unreasonable to wish for a spark of light amidst all this gloom.
·
Protection
of Human Rights while countering terrorism:-
It's
important to remember that state-level counterterrorism efforts can have just
as much of an effect on human rights and social order as terrorism itself. It
is the responsibility of states to implement effective anti terrorism measures
since terrorism threatens a variety of basic liberties. Human rights protection
and promotion are mutually supportive of efforts to combat terrorism.
The
United Nations Security Council has moved swiftly to strengthen the legal
framework for international cooperation and common approaches to the threat of
terrorism in areas such as preventing the financing, lowering the risk that
terrorists might acquire weapons of mass destruction, and improving
cross-border information sharing, as well as establishing a monitoring body
(The Counter Terrorism Committee) to supervise the implementation of these
measures.
Human
rights and its protection can be a key obstacle when it comes to confronting and
overcoming the growing threat of terrorism posed by non-state actors around the
world. We all know that terrorist acts hurt society, but sometimes the measures
taken to stop them might have unintended negative consequences itself. Every
government has a responsibility under international law to combat terrorism and
safeguard its citizens' fundamental freedoms.
Following
the UNGA's (United Nations General Assembly) ratification of the United Nations
Global Counter-Terrorism Strategy, the international community has begun
implementing measures to defend human rights in the battle against terrorism.
They have promised to comply with their broad commitments under international
law in any counterterrorism efforts. Human rights abuses created outside of a
country's boundaries are rarely criticised or observed by the international
community, even when internal critics may accuse other states of doing little
to stop the crimes. The time has arrived for states to take responsibility for
their citizens. The United Nations Security Council has on multiple occasions
condemned states for aiding and abetting terrorists and that strong measures be
taken against those responsible for human rights abuses in such countries.
However, depending on the specifics of the situation, states can restrict the
exercise of some human rights (such as the right to freedom of association and
assembly, the right to freedom of movement, etc.) for a limited amount of time.
Nonetheless, every state must follow certain guidelines when exercising this
power.
·
Prescription
by law:-
According
to this concept, while limiting the exercise and enjoyment of human rights by
the regional or domestic human rights instruments, the parameters of such
limitations should be made clear, so that every individual can have recourse to
an appropriate legal remedy and that the people are able to regulate their
conduct accordingly. In accordance with this principle, the right to due
process of law is regarded as one of the most important right of the people.
It
is further important to note that, the permissible and legitimate restrictions
and limitations on the enjoyment of fundamental human rights will vary
according to the need of the time. Usually the main grounds for imposition of
such limitations and restrictions are- national security, public safety, public
order, health and human rights and freedoms of other people living in the
society.
The
principles of “necessity” and “proportionality” are of fundamental nature with
respect to the limitations on human rights. These principles are dependent upon
the pressing nature of “need”. The human rights available with the people are
to be limited only in the case of necessity or in other words, the limitations
on the human rights are to be proportional to necessity. In order to understand
this concept and how the aforementioned principles are applied in the real
scenario, we take an example of “Freedom to express”. [4]Freedom
to express is a recognized human right and that it is required to be utilized
by the people in a good sense, but if such right is being used by the people
for the purpose of incitement and promotion of terrorism, then the exercise of
such right can be restricted by the authorities which too shall be done in
accordance with law and to achieve a legitimate purpose.
“Derogation”
of human rights is a big question that revolves around in the minds of many. By
Derogation, we mean- “the rights which can be annulled or cancelled”. No doubt
that certain treaties governed by the international law provide for the
derogation of human rights, but it must be remembered that such derogation is
subject to restrictions and limitations. In emergency situations or in
emergency like situations, such derogation is made permissible under the
international law. This principle has been laid down in “Article 4 of
International Covenant on Civil and Political Rights”. Under Article 4(2) of
ICCPR, certain human rights have been brought under the umbrella of
non-derogable human rights, which means that even in emergency or in emergency
like situations, such human rights cannot be derogated by the authorities.
Among such rights are- the right to life; freedom from torture or inhuman
behavior or degrading treatment; prohibition against slavery and servitude;
freedom from being imprisoned for failure to fulfill a contract; freedom from
retrospective penalties; right to be recognized as a person before law and freedom
of thought, conscience and religion.
It
is alleged that derogation of human rights is a rational response and the
states can use it while facing serious threats. Moreover even the power of a
state to derogate certain human rights within the ambit of Article 4 of ICCPR
is not unlimited, but there is a permissible extent for such exercise of
derogation. Therefore, it is to state that the activity of derogating the human
rights should be temporary in nature and that the main aim of the state should
be restore a situation of normalcy as soon as possible.
·
Specific
Human Rights Challenges in context of terrorism;
Human
rights violations are commonly associated with terrorist groups and their
operations, yet it has been discovered that states are also complicit in these
abuses. Right to Life is a basic human right that, if violated, would prevent
the enjoyment of all other human rights. States are obligated to adopt
counterterrorism measures under the terms of those policies, but the targeted
execution of suspected terrorists as an alternative to arrest and prosecution
has done more harm than good to society as a whole. States frequently resort to
carpet bombing and targeted bombing in their efforts to combat terrorism,
despite the fact that both strategies have a negative impact on human rights
and ultimately fail to achieve their stated goals.
Article
1 of the International Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment specifically names torture as a violation of
human rights. Further, the prohibition of torture and other cruel and inhuman
treatment and the norm to grant punishment is one of the most significant norm
of the International Law, and is a rule of jus cogens, therefore is a binding
norm under the International Law. To be clear, no state has the right to
arbitrarily detain, arrest, or transfer someone suspected of terrorism without
following the established standards of international law.
But
unfortunately, the states do not go with the set principles and that the states
where any such terrorist activity takes place, either arrest, detain or
transfer such offenders without complying with the due process of law. During
this process, even the ones who have no direct role to play in any of the
offensive acts or whose involvement in the alleged wrongful act is quite
doubtful in itself, are unnecessarily being targeted, as a result of which such
people are being forced to seek asylum.
Liberty
and security of individuals needs to be taken care of. Some states have come up
with new provisions to effectively counter terrorism, but these provisions or
the steps taken to counter terrorism might be against the basic norms
recognized worldwide. These provisions consist of- provisions regarding bail,
remand and arrest of the suspects. Many a times the states to compress the
liberty and security of a person tries to keep a person in constant detention,
which allows the authorities to carry out compulsory questioning in order to
gather some sort of information from the suspects.
Concluding
this stance, it is to be stated that, many challenges come across in the path
to safeguard the basic human rights of the individuals, no matter who such
person is. Irrespective of the fact that such person is a terrorist, engaged in
carrying out various terrorist activities, no state has the authority to snatch
away such person’s individual rights, except according to the due process of
law.
·
State
Violations:-
Under
this concept of “State Violations”, we are going to comparatively analyze
“State Terrorism” with “Combating Terrorism”.
It
is a well-known fact that, “human rights violations are committed by the states
in various situations, for instance- during the search operations, during
encounters which are sometimes fake and at other times sometimes genuine”,
therefore, these at many occasions result in human rights violations. For
example, if we consider the manner in which the search operations are being
carried out or the manner in which encounters take place, no one can actually
make out as to which encounter made by the authorities was genuine or which
amongst those was fake. As far as the search operations are concerned, the
authorities, in general, carry out these operations so ruthlessly, that it
violates the basic human rights of the people, including, the right and freedom
to move, right to life etc. This can also be referred to as “State Terrorism”
which is in a total contrast with what the state claims to do as its function
that is, countering terrorist activities. It is to state here that, when the
state itself is spreading “State Terrorism”, then it is quite difficult to
accept that it will engage in such activities which would counter/combat
terrorism.The issues of 9-11 attacks and the development of counter terrorism
efforts, had a long standing effect on human rights and terrorist activities.
·
Conclusion
Concluding
this article, it is to be stated herein that, some difference between the
terrorist activities and the counter terrorist activities should be maintained.
It should not be the case that efforts made to prevent the commission of
wrongful act becomes equally wrongful as that the act itself. The authorities
should keep in mind that the basic human rights of the citizens are not
violated irrespective of the fact that terrorists fall under the term “people”.
The rights cannot be taken away except with the authority of law.
[1] https://kanoongurus.com/blog/terrorism-and-human-rights
( Last visited 28th Sep, 2022)
[2] https://www.bing.com/ck/a?!&&p=1d2f3902d802d530JmltdHM9MTY2NDY2ODgwMCZpZ3VpZD0xNWNkZDNiMi1jN2Y2LTZhMDYtMDExOC1jMTgzYzZkZTZiZWMmaW5zaWQ9NTE0Mg&ptn=3&hsh=3&fclid=15cdd3b2-c7f6-6a06-0118-c183c6de6bec&psq=%22The+abovementioned+guidelines+shall+be+adopted+in+order+to+prevent+the+violation+of+the+human+rights+and+to+ensure+that+the+universally+recognized+human+rights+standards+are+followed.%22&u=a1aHR0cHM6Ly9rYW5vb25ndXJ1cy5jb20vYmxvZy90ZXJyb3Jpc20tYW5kLWh1bWFuLXJpZ2h0cy8&ntb=1
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