Recently the issue of terrorism has raised major security concerns throughout the world. This concern has increased the need to have effective counter terrorism measures in place. However, the fight against terrorism has led to controversy and friction between the measures taken by the state counter terrorism committee to prevent terrorism, and the views and goals of human right organisations to prevent human rights infractions. In this study, we seek to find out the implication of terrorism on human rights and the impact of terrorism on global security.
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The discussion begins with an introduction to the general issue of terrorism and its implications for human rights. The question as to whether or not human rights are being violated by current counter terrorism measures will be critically analysed throughout this study. Finally, some attention will be given to address counter terrorism measures that are implemented to solve the national and international security crises. In the process, there are human right issues that arise from the investigations, detention, and prosecution of the terrorism suspects.
Introduction and Problem Statement
Since the terrorist attacks on September 11 in New York City the issue of terrorism has become one of the major concerns in many countries. Cases of terrorism have increased significantly since 9/11; this is a fact that poses a major challenge to human rights as it raises issues for victims and perpetrators alike. Therefore, there is a need to undertake a critical analysis of the relationship between terrorism and human rights.
Terrorism can be considered an affront to humanity, because it goes against the basic human rights outlined in the Universal Declaration of Human Rights outlined by the United Nations. This study seeks to give a detailed analysis on the issue of terrorism and the differing views on how it should be dealt with by the governments that encounter it. In order to deal with terrorist activities, many countries have imposed strict measures on any individuals suspected to be involved in terrorism.
These harsh measures of punishment raise further issues, namely, do individuals found to be involved in terrorist activities forgo their fundamental human rights? Human rights activists and agencies argue that terrorists still have the right to be treated in the same manner as other members of humanity (High Commissioner for Human Rights 3). However, this latter view is often deemed impractical and naïve by anti terrorist agencies, who tend to view human rights abuses as collateral damage, one of the unfortunate yet unavoidable outcomes of the War on Terror (Goodin, 2006; Held, 2008; Luban, 2003; Pojman, 2006).
Goodin (2006) argued that terrorism “is best understood not as a psychopathology or as an ideology but, rather, as a distinctive political tactic, the essence of which lies in its attempt to frighten people for political advantage” (p. 31). Indeed, both parties involved in terrorism – those who commit terrorist acts and those who punish terrorist acts – are deeply invested in their roles, for the very fact that terrorism has a political, typically nationalistic or religious component that imbues the acts themselves, regardless of how horrific or inhuman they may be, with legitimacy and meaning beyond ordinary crime, or crime of a non-political nature. Many terrorists and anti-terrorists for the most part consider their work inspired by a higher ideal, be it religious or moral, and this belief typically infuses their actions with a sense of righteousness and purpose.
In this case, a major question we need to ask is whether or not both governments as well as human rights organisations have effectively reacted in an appropriate way to the reality of terrorism. That is, the study seeks to ascertain whether or not governments involved in anti terrorist activities have adopted an approach which does not violate the rights of both the victims and the perpetrators.
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Human rights organisations have the responsibility to ensure that the governments and other counter terrorism agencies respect the human rights and the law in their fight against terrorism. The human rights organisations also have an important role to play in the definition of terrorism at the international level. Human rights organisations also participate in proposing the best way in which the issue of terrorism should be handled (International Council on Human Rights Policy 2011: p.10).
There is a need for human rights advocates to have a clear and understandable stand on the issue of terrorism in order to come up with the most effective way to deal with terrorism in the modern world. Gani and Mathew (2008: p.142) observed that there is a need to have a modern approach towards the war against terrorism. For instance, terrorists have changed their tactics and approaches to execute terrorist acts and campaigns.
Therefore, a need exists to have more advanced security checks at airports and seaports to prevent exchange of dangerous weapons between countries and to thwart the movement of terrorist groups and actors between countries. It is also necessary to facilitate the harmonisation of international legal frameworks in order to improve efficiency when dealing with terror cases that involve cross border issues. The modern approach in turn has implications for human rights, particularly when advanced security measures often curtail the movement of individuals between countries.
As already noted, the issue of terrorism has critical human rights implications to both the victims and the perpetrators. The measures taken in an effort to deal with terrorism have raised critical human rights issues in many countries. For instance, new means of controlling the movement of people from one place to another causes human right issues, because some of the means applied are seen to violate their movement rights (Australian Human Rights Commission 2011: par 4).
Additionally, modern communication technologies have gone a long way toward the erosion of borders and barriers between countries, allowing increased interaction between different parts of the world. This makes it easier to detect any terrorist plans before they are executed. This has presented a major improvement in the war against terror. Meanwhile, several bodies are advocating for use of democratic strategies in the fight against terrorism (Weinberg, 2008: p.80).
This move has resulted in decreased threats from terrorism, both at the international and the national levels (Antonio and Sánchez, 2009: p.36). However, these strategic methods have raised concerns over the violation of basic human rights, both through the act, and through the process of mitigating the act itself. For instance, terrorism cases may rise when excessive emphasis is put on democratic strategies in dealing with terror.
Human rights legislation gained international attention following the Second World War and the fall of the Nazis. The concept of human rights in the world of politics dates back to 1948 when the Universal Declaration of Human Rights (UDHR) was created (Zalman, 2011: par 1). This declaration covered both individual and collective human rights, and to this day it iterates the importance of observing the issues of human rights in the fight against terrorism.
The architects of the UDHR adopted by the United Nations in 1948 responded to the bold erasure of human rights practiced by Hitler, Stalin and other fascist regimes during the Second World War. In composing the UDHR, the delegates created a document that stated the unequivocal, universal rights of all humans “regardless of race, color, sex, or national or social origin” (Pojman, 2006: p. 75; Zalman, 2011). The impetus for the UDHR therefore was the atrocious human rights abuses perpetrated in the name of Hitler’s Nazi vision.
As Pojman (2006) explains, “the common denominator uniting the delegates was their outrage at Hitler’s ideas and actions and their determination to sound a clear message opposing them. Their sentiments took on a universal form. Generalising suggested that the purpose of the UDHR was to protect all human beings from oppression, torture, exploitation, and enslavement” (p. 76). Human rights have evolved since that time to include humanitarian intervention in cases where flagrant human rights abuses occur (Held, 2008; Pojman, 2006).
While the United Nations clarified human rights globally with the UDHR, a grey area developed between the universal rights outlined therein and the actual practice of protecting human rights within sovereign states, with this grey area growing much larger and much more complex since the end of the Second World War. As Held (2008) explains, “one can conclude that respect for human rights became part of the requirements recognised in international law. Although remaining in much greater uncertainty than the norms for self defense, standards concerning intervention were developed to prevent the massive violations of human rights that occur in genocide and ethnic cleansing” (p. 39). Regional development of human rights legislation also occurred in Europe, the Americas and Africa.
Where international law is concerned, human rights trump the rights of sovereign states. “It has become commonplace for that the international system may lawfully intervene in situations of cataclysmic civil strife and other massive violations of human rights, with or without the consent of the government of the place where the violations are occurring” (Franck, cited in Held, 2008: p. 39). Since 9/11 however, a definite weakening of the respect for international law, and by extension, the universality of human rights, has occurred in response to the perceived threat of terrorism. The weakening of the UDHR’s power was fuelled largely, as Held (2008) posits, by the efforts of the Bush administration following the destruction of the Twin Towers in 2001.
As Held (2008) notes, “despite the insularity and resistance to international cooperation by certain elements in the United States, international law had generally been deemed worthy of considerable respect by most administrations until that of George W. Bush” (p. 34). In essence, the Bush administration separated itself and the United States from the confines of the UDHR in order to conduct the War on Terror.
As Franck (cited in Held, 2008) argues, the foreign policy of the United States in regards to the War on Terror is “an approach that classifies international law as a disposable tool of diplomacy, with no greater claim that any other policy or value preference” (p. 34). Interestingly, several scholars including Held (2008) point to the fact that the United States appears to have taken it upon itself to combat global terrorism singlehandedly, without the authorisation and power of international law, a move which in recent years has proven detrimental not only to human rights in general, but also to the economy and the international reputation of the United States in particular.
As Held (2008) notes, “international law already condemns terrorism. The United States cannot defeat terrorism alone. It requires the cooperation of other states, [as their] cooperation will assure that the terrorists are increasingly marginalized” (p.34).
As mentioned earlier, there exist various forms of terrorism. Different authors classify terrorism based on varying objectives in an attempt to understand the issue clearly. The most common categories include religious terrorism, narcoterrorism, and state sponsored terrorism. In religious terrorism, terrorists of a given religion attack a large number of people from a different religion whom they consider enemies (Savitch H, 2008 p.267).
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Some of the religious terror groups include Hezbollah, Al Qaeda and Hamas. Narcoterrorism is a kind of terrorism that involves drugs. Typically, narcoterrorism involves the efforts of drug lords, cartels, or drug traffickers to manipulate the policies of their government through violence, threats, intimidation, or other criminal acts (White J, 2011 p.96). Narcoterrorists also actively thwart the efforts of law enforcement officials and the meting out of justice against their enterprises through the systematic use of intimidation, the threat of violence, or actual violence. An example is the wave of narcoterrorism in Mexico.
Though their aims may be different, drug cartel violence and political terrorism share many similarities, in that each conducts illegal activities and employs extreme violence or the threat of extreme violence, including kidnappings and assassinations, to achieve their ends (Kan, 2011: p. 37. Narcoterrorists also openly defy laws, remain exceptionally adaptable, innovative and agile, and “threaten global security” (Kan, 2011: p. 37).
Lockinger categorises terrorism according to the players who are involved, the means and methods used, motives, as well as the geographical range (Schmid, 2011: p.173). In terms of geographical range, there can be either domestic or international terrorism (Schmid, 2011: p.173). Domestic terrorism is the kind of terrorism wherein terrorist activities are conducted by the people from within their own country.
This is opposed to international terrorism where the perpetrators may be from a foreign country and act outside the borders of their own country. Domestic terrorism can be more difficult to discover and prosecute, as it occurs within the confines of a sovereign nation. In terms of the methods used, terrorism can be classified as suicide terrorism, Cyber terrorism, bio-terrorism, nuclear terrorism, and chemical terrorism (Schmid, 2011: p.173).
Suicide terrorism or suicide missions under the auspices of terrorist activities are particularly difficult measures to counter. Bloom (2007) argues that suicide bombers and suicide missions can be deemed as rational acts from the perspective of both the organisation – be it Al Qaeda or the Tamil Tigers – and the individual suicide bomber, who typically have an internal covenant or understanding that promotes the status of the suicide bomber.
For counter terrorism officials however, the rationality fails, as it remains very difficult for officials to understand and predict these suicide missions given that they appear wholly irrational in a human context. Bloom (2007) instead provides three theories as to why suicide missions exist and why they are so effective: first, suicide missions work when all other terrorist acts or martial tactics fail; second, suicide missions minimise the competition between rival terrorist factions, and thirdly and most importantly, from a human rights point of view, when the rationale of the terrorist organisation condones the killing of civilians – as in the case of Al Qaeda – suicide missions will proliferate.
This speaks to a basic difference that the study will uncover in terms of the human rights – essentially, the difference in perspective on human rights and the value for human life evidenced by terrorist groups, counter terrorist organisations, and human rights organisations. Terrorist tactics such as suicide bombing indicate an essential difference in the perception of actors toward the value of human life and in turn, the perception of human rights. Fundamentally, terrorist groups that employ suicide missions for example will likely never develop a commitment to human rights, and the counter terrorist agencies who must deal with suicide bombers operate from this understanding as they conduct anti terrorist activities.
From the perspective of human rights, both parties involved in terrorism – those who use violence to further political or religious ends and those who use violence to suppress their efforts – create massive human rights violations regardless of the righteousness or validity of their cause. As Held (2008) notes, in many cases the human rights abuses caused by those who seek to prevent terrorism or block the aims of terrorists are much more substantial.
This marks one of the key points of this study and one of the key questions that the research seeks to explore – where human rights is concerned, which side causes more damage to the concept and maintenance of human rights, the terrorists themselves, or those charged with fighting the terrorists? Scholars such as Held (2008) argue convincingly that it is the latter:
In the two wars that Russia has fought to deny the Chechens independence…Russian forces have killed many thousands of civilians, including children, and turned more than half the population into refugees. Chechen terrorism has, in contrast, killed hundreds of civilians. In refusing to end its occupation of Palestinian territories and refusing for several years after 2001 to negotiate with the Palestinians to bring about a viable Palestinian state, Israel killed thousands of civilians, while Palestinian terrorists killed hundreds of Israeli civilians…Of course, religious fanatics with unjustifiable aims cannot use violence justifiably, but groups with justifiable aims may not be more to blame in using violence than are those who wage war against them (p. 57).
However, Held’s (2008) example brings up an often ignored but no less crucial question for the study to consider: who decides what is a justifiable aim? In the minds of the religious fanatics for example, the eradication of the infidel is a justifiable aim, sanctioned by Allah, an aim that many have sacrificed their lives to attain. From the perspective of the human rights organisations, no political aim that involves human rights abuses and the murder of innocents can be justified.
Similarly, just war theory, defined by Walzer (2009) as any form of aggressive military action made justifiable and applicable by certain cases and not in others, was originally “meant to be an alternative to Christian pacifism” (p. 42). In recent decades however, “many clerics, journalists, and professors…have invented a wholly different interpretation and use, making the theory more and more stringent, particularly with regard to civilian deaths” (Walzer, 2009: p. 42). Therefore, the legitimate use of violence to further a political aim – the aforementioned quintessential definition of terrorism – remains stubbornly open to multiple interpretations depending upon the context of the actors.
For Luban (2003), the War on Terrorism creates a new action for governmental involvement, one that effectively transcends law and “dramatically broadens the scope of action, because now terrorists who knew nothing about September 11 have been earmarked as enemies” (p. 51). This new type of war “offers much freer rein than that of law, and therein lies its appeal in the wake of 9/11” (Luban, 2003: p. 51).
In essence, once 9/11 occurred, a new model of governmental power became the norm, one that poses a serious and all-encompassing threat to human rights all over the world, a model that Luban (2003) calls the “hybrid war-law approach” (p. 51). When the War on Terrorism was initiated, it combined selected elements of the traditional war model with selected elements of the traditional law model to create far-reaching powers for the state to seek out and punish terrorism in any and all forms, with a greatly diminished requirement for evidence (Luban, 2003). In the traditional war model, the use of lethal force on enemy combatants is sanctioned, “regardless of the personal involvement [of] the enemy” (Luban, 2003: p. 51).
In the realm of war, so-called collateral damage, the unintentional killing of civilians, while considered regrettable, is nonetheless sanctioned and to a certain extent expected behaviour in a war zone. In law, police cannot bomb an apartment complex if they have intelligence that someone inside the building harbours a terrorist, whereas in war, an “air force can bomb the building if it contains a military target” (Luban, 2003: p. 52).
In addition, the burden of evidence and requirements of proof remain significantly less stringent in war than in law. As Luban (2003) explains, “soldiers do not need proof beyond a reasonable doubt, or even proof by a preponderance of evidence, that someone is an enemy soldier before firing on him or capturing and imprisoning him; they don’t need proof at all, merely plausible intelligence” (p. 52). The War on Terror refashions the legitimate target into “those who in the course of combat might harm us, not those who have” (Luban, 2003: p. 52). This preventative strike approach to terrorism therefore can potentially impede the human rights of any and all actors deemed legitimate targets by counterterrorist agents.
Another important development in human rights caused by the War on Terror is the circumvention of certain key articles in the Geneva Convention (Luban, 2003). The U.S. government in particular has reinterpreted the Geneva Convention in a way that is “designed to eliminate [the] tactical advantages” afforded to the enemy combatant via the Geneva Convention, namely the right to fight back and the right to avoid punishment for active service, by utilising the traditional law model (Luban, 2003: p. 52).
International terrorist agencies and actors view international terrorism “not only as a military adversary, but…as a criminal activity and criminal conspiracy” wherein terrorist actors receive punishment for whatever acts of violence they commit, punishment which they would not receive in a legitimate war governed by the Geneva Convention protocols. As Luban (2003) explains, “captured terrorists may be tried before military or civilian tribunals, and shooting back at Americans, including American troops, is a federal crime” (p. 52).
Therefore, the amalgam of the traditional models of war and law adopted by the War on Terrorism officials since 9/11 has effectively transformed the world into a war zone and the defence of home and country (for anyone other than an American) into a crime, with obvious negative ramifications for human rights.
The promotion of universal human rights under the auspices of global governance have led to the creation of a number of articles such as the Responsibility to Protect, a new endeavour created by NGOs from all over the world (International Relations and Security Network, 2011). The Responsibility to Protect represents an international human rights and security document designed to attend to the continued failure of the international society to stop human rights abuses such as “genocides, war crimes, ethnic cleansing and crimes against humanity” (International Relations and Security Network, 2011: n. pag.).
Organisations such as Human Rights Watch, Amnesty International and the International Relations and Security Network have created these initiatives to speak to the reality that, especially in the case of terrorism and counter terrorism measures, “formal mechanisms of global governance often fail to uphold universal minimum standards” (International Relations and Security Network, 2011: n. pag.).
The goal of initiatives such as the Responsibility to Protect and other norms advance the global governance ideal that originated with the United Nations in 1948 – the aim that a norm for human rights will become standardised across the world and that all states will adhere to it as they conduct counter terrorist activities and exact counter terrorist measures. The continued failure of the international community to respect basic human rights has led to the creation of “civil society organisations [or CSOs] to fill gaps or put pressure upon states and formal international institutions to change their behavior” (International Relations and Security Network, 2011, n.pag.).
This study seeks to examine these aforementioned conflicting issues in detail and attempt to determine the best approach to use to handle terrorist perpetrators without infringing upon their human rights. There are conflicting ideas on human rights concerning how the perpetrators should be treated from their trial through to their judgment. In other words, the study will help in understanding better the issue of terrorism and its effective mitigation.
The key issue for this study to consider therefore lies in the quality of the evidence authorities use to assess and label a person as terrorist victim or perpetrator of terrorism, and if these criteria infringe upon individual’s human rights. In the case of insufficient, contradictory, or suspicious evidence, authorities must maintain the innocence of the suspected terrorist until proven definitively in a court of law.
However, as Farrell (2011) notes, this did not happen in the aftermath of the 9/11 attacks. As a result, since 2001, countless individuals have lost years of their lives, their reputations, their assets, their families, their peace of mind, and their most fundamental human rights as wrongly accused terrorists. These individuals form a significant body of human rights victims of the War on Terror, one that seldom receives mention.
How are human rights affected, both by terrorism as a political act and by the policies that aim at mitigating it?
This study will be based on the global perspective on human rights and human rights violations, in light of the war against terrorism. International data will therefore be necessary in this case to cover the terrorist activities in the Middle East, the United States and the United Kingdom. The main sources of information in this study will be a variety of literature sources that contain issues and perspectives from both human rights organisations as well as from governments’ counter terrorism legislations. These sources will be helpful in the provision of the necessary information which will help in understanding the issue of combating terrorism and its implication on human rights.
The paper will be an advocacy document that sets out to determine the nature of current anti-terrorism legislations and measures, and ascertain the impact these measures have had upon the human rights of both the victims of terrorism and the perpetrators of terrorism, since the 9/11 attacks. The study will be built upon research studies that have been carried out by various agencies on terrorism, counter- terrorism, policing, and human rights of both the perpetrators and the victims.
The initial data for this study will be sourced from individual country reports written by the Commonwealth Human Rights Initiative (CHRI) and the Human Rights Watch (HRW), along with other human rights organisations and non-governmental agencies. Case studies drawn from these reports will also be used to develop a comprehensive analysis of terrorism as a case of political violence, and the impact of counter-terrorism on human rights.
The study will be desk-based and will primarily rely on Internet sources such as government and non-governmental reports, journals, media reports, policy documents, articles, and backgrounders, amongst other publications. Contacts in the government, academia and the civil society will also supplement information and provide additional expertise in the spheres of counter-terrorism legislation, human rights legislation, and security.
The paper will finally undergo review by the lecturers and these reviews will be included in the final paper. Specific reference will be given to international conventions such as the United Nations Charter of 1945, the International Covenant on Civil and Political Rights of 1966, and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, among other crucial sources.
Several studies have been done on the implication of terrorism on human rights.
This paper seeks to identify the main contributions to this issue, after which gaps in these studies will be identified and addressed. The literature reviewed will be useful in answering the central research question that guides this study: How are human rights affected, both by terrorism as a political act and by the policies that aim at mitigating it?
After 9/11 international cases of terrorism have increased significantly. This development has posed a considerable threat to the maintenance of human rights globally, largely because the issue of terrorism raises critical human rights concerns from both perspectives. There are critical human rights concerns that affect both the victims of terrorism as well as the perpetrators of terrorism (Strossen, 2003:p.7). The argument will be divided into two separate sections, one to analyse the case of terrorism as a political act of violence with political intentions, and the second to analyse the impact of counterterrorism tactics on human rights in the current arena.
Terrorism as a Case of Political Violence
Terrorism and Politics
Political violence is a much broader category than terrorism. However, terrorism and political violence can be used interchangeably, especially when the context encompasses guerrilla warfare, national liberation movements, and strikes and demonstrations whenever they turn violent.
Terrorism in the context of political violence intends to overthrow a tyrannical regime; to redefine and realise justice and equality; to achieve independence or territorial autonomy, or to impose one’s religious or doctrinal beliefs on another group. This violence can be directed towards a wide range of targets including property, political authorities and law enforcement. However, it is rarely directed towards civilians but all things considered, it has a far more negative connotation. Many terrorist acts are classified as the intentional use of violence either against civilians or civilian targets to realise political aims, draw international attention to the political cause, and recruit sympathisers to engage in the violent acts.
There are three main components of terrorism: one, the threat or the use of violence; two, a political aim such as changing the regime, changing the people in authority, or altering the current social and economic policies; and three, the targeting of civilian victims for terrorist acts. This latter component is attractive to terrorist organisations because civilians represent an easy target and tend to draw large scale attention due to their innocence (English, 2009; Held, 2008; Luban, 2003; Zalman, 2011).
While Al Qaeda represents the most recent addition to the terrorist ranks, several other terrorist organisations have been in play over the last 40 to 50 years in Europe and internationally: the provisional Irish Republican Army (IRA), the ETA Basque separatist group in Spain, and the Tamil Tigers, a terrorist group from Sri Lanka.
Richard English (2009), an IRA expert and political science professor at Queen’s University in Belfast, Ireland, elucidates the unique political character of terrorism herein:
Terrorism involves heterogeneous violence used or threatened with a political aim; it can involve a variety of acts, targets, and actors; it possesses an important psychological dimension, producing terror or fear among a directly threatened group and also a wider implied audience in the hope of maximising political communication and achievement; it embodies the exerting and implementing of power, and the attempted redressing of power relations; it represents a subspecies of warfare, and as such it can form part of a wider campaign of violent and non-violent attempts at political leverage (p.44).
In the case of the provisional IRA, a protracted campaign of terror designed to unify Ireland and eradicate the presence of British troops lasted decades (English, 2009; Gregory, 2010). The provisional IRA or “provos” carried out sniper attacks, several bombings in Northern Ireland, and numerous assassinations as part of their 30-year political violence campaign. Since the 1960s, the provos terrorists have been directly responsible for the death of roughly 1,800 people (English, 2009; Gregory, 2010). The victims of the provisional IRA’s terrorist campaign were mainly British officers, police, prison guards, legal officials, militants from rival factions, drug lords, informants, and over 600 civilians (English, 2009; Gregory, 2010).
As Gregory (2010) highlights, the major political violence committed by the IRA occurred between the early 1970s and the early 1990s and included the “1972 bombing spree known as Bloody Friday, in which downtown Belfast was rocked by twenty-two bombs in seventy-five minutes, leaving nine dead and 130 injured; the 1979 assassination of Lord Mountbatten, Queen Elizabeth II’s uncle and the last Viceroy of India; the 1984 bombing of a Brighton hotel where then British Prime Minister Margaret Thatcher and her cabinet were meeting, which wounded several British officials and killed four other Britons; a 1993 car bombing in London’s financial district, Canary Wharf, that killed one person and caused $1 billion of damage; [and] mortar attacks on the British prime minister’s residence and London’s Heathrow Airport in the early 1990s” (p.1).
Public support for the provisional IRA remained middling until 1972, when British soldiers killed 14 unarmed Catholic demonstrators in Londonderry, Ireland (Gregory, 2010). In total, roughly 3,600 people lost their lives directly or indirectly as a result of “the troubles,” which ended with the signing of a peace accord in 1998 (English, 2009; Gregory, 2010). Although a negotiated settlement eventually occurred between the leaders of Sinn Fein – the IRA’s political wing – and the British government, this action occurs rarely, as Burleigh (2009) notes, because it “is not possible where governments have assassinated successive terrorist leaders, as the Israelis have done in the case of Hamas” (p.44).
The provisional IRA example remains significant because the main architects of the peace accord were the Sinn Fein leaders Gerry Adams and Martin McGuinness who had managed to avoid assassination throughout their rule (Burleigh, 2009). For the most part, terrorist factions live short, brutal lives characterised by violence; once killed, the terrorist leaders are typically replaced by avid followers, and the cycle of violence continues.
The Basque separatist movement represents another terrorist organisation with a long history. The party Batasuna or Sozialista Abertzaleak is a nationalist political entity localised in the Basque region – mainly northern Spain and pockets of the southwest region of France. Its mandate has been the independence of the Basque people from Spain since its inception in the late 1970s. The Euskadi Ta Askatasuna or ETA is the military faction of the Batasuna; since 1968, the ETA has killed over 800 people in its quest to realise its political aims (Moore, 2005).
The ETA’s most recent large scale terrorist campaign resulted in the 2006 bombing of the Madrid airport; this event ended a nine month end to hostilities, and also caused the deaths of two civilians. Unlike the IRA, the ETA has not enjoyed a great deal of success in its efforts to negotiate freedom for the Basques, since “Spain’s counterterrorism police have been so assiduous in either covertly killing or arresting many ETA leaders that there is no coherent leadership with which to deal” (Burleigh, 2009: p.45).
The Liberation Tigers of Tamil Eelam, also known as the LTTE or the Tamil Tigers, were a separatist terrorist group located in Sri Lanka. In Sri Lanka, the majority of the population – 74 percent – are Sinhalese, while the Tamil minority constitute only 11 percent of the island’s population (Soherwordi, 2010: p. 1). Similar to the ETA, the cause of the Tamil Tigers was the creation of a free and independent state in Tamil Eelam, an area in the north eastern region of Sri Lanka (CBC News, 2009; Galster, 2008; Soherwordi, 2010).
The conflict between the Tamil Tigers and the Sri Lankan government was essentially a form of “ethnic fratricide,” a civil war that grew out of riots and bloody clashes between Tamils and government troops in the summer of 1983 and ended officially in 2009 with the killing of the LTTE’s leader, Velupillai Prabhakaran, in an air strike by the Sri Lankan army (Soherwordi, 2010: p. 1). Prabhakaran represented one of the founding members of the group and his death was widely viewed as the death blow for the organization’s leadership (CBC News, 2009; Galster, 2008; Soherwordi, 2010)
As a terrorist organization, the Tamil Tigers perfected the use of suicide bombers. The organization was credited with the earliest use of suicide vests in suicide attacks on civilians; the Tamil Tigers were also infamous for using children and females as suicide bombers (CBC News, 2009; Galster, 2008; Soherwordi, 2010). The conflict between the Tamil Tigers and the Sri Lankan government resulted in the deaths of well over 70,000 people in its 26 year history (Galster, 2008; Soherwordi, 2010). Several world leaders were counted among the victims of the Tamil Tigers, including the Indian Prime Minister Rajiv Gandhi in 1991 (CBC News, 2009).
In direct contrast to the IRA, the ETA, and the LTTE, Al Qaeda represents a new breed of terrorism; this form of terrorism contains no real centralized leadership. Despite the death of its “visible public face” Osama bin Laden in 2011, a number of theorists maintain that “bin Laden’s close circle continues to pose the main global threat, while decentralization theorists…state that the main threat no longer comes from a cohesive organization but from local, homegrown groups” such as Pakistan’s Lashkar-e-Taiba (Padukone, 2011: p. 67).
Padukone (2011) in fact argues that “operating freely, globally, and with a large infrastructure and support base, Lashkar-e-Taiba is in many ways becoming the new regional leader of the global Islamist movement created by Al Qaeda. In an age of globalization, the ability to connect micro-level activities to macro-level trends is a key source of power. It is this ability that gave Al Qaeda its strength in 2001, and it is this potential that is empowering Lashkar today” (p. 72).
Extremist Islamic groups like Al Qaeda harbour no nationalist agenda. In fact, Al Qaeda is not affiliated with any particular nation at all. Rather, the Al Qaeda terrorist organisation is best described as an “amorphous entity” with no fixed address, and no real core identity in the historical sense of terrorism, as characterised by group such as the IRA, the RTA, and the Tamil Tigers (Burleigh, 2009; P. 46).
In contrast to the terrorist organisations of the 20th century, Al Qaeda represents a “collection point for displaced men with a myriad of local grievances against regimes which the West opposes as well as supports, either as a hangover from the Cold War or by virtue of their oil and gas resources. Its deracinated ranks include Afghans, Algerians, Egyptians, Indonesians, Libyans, Moroccans, Palestinians, Pakistanis, Saudis, Uzbeks, and Yemenis” (Burleigh, 2009; p. 46). The Al Qaeda terrorist organisation “has global aspirations and no firm territorial base, and there is no clearly defined territory in which its aims could be satisfied through constitutional means,” which for the most part precludes any bargaining or leveraging chip a government might use to negotiate a temporary moratorium on hostile actions (Neumann, 2007: p.128).
In addition, Al Qaeda’s brand of terrorism threatens the very core of the liberal democratic state. While “terrorism has been a threat to the liberal democratic state since this form of government came into existence,” the new form of terrorism embodied by Al Qaeda seems wholly resistant to the idea of negotiation and bent on the destruction of democracy in general. “Historically, terrorism has been used to further a relatively narrow political objective, for example, Basque separatism or Irish republicanism, and terrorist acts have been directed against a particular state government purportedly standing in the way of the terrorists’ objective” (Iacobucci, 2011: p.187).
However, as Iacobucci (2011) explains, in the case of Al Qaeda, these older forms of terrorist motivations appear to be obsolete. “International terrorism waged by Islamic terrorists represents a paradigm shift in two respects. First, Islamic terrorists are not motivated by a narrow political objective, but by contempt for liberal democratic ideals. Second, it is not one single state that is threatened, but rather the entire democratic world” (Iacobucci, 2011: p.187).
The Al Qaeda model of terrorism is also difficult to prevent, because the perpetrators are almost impossible to catch. As Iacobucci (2011) notes, the terrorist campaigns of the Al Qaeda organisation “are coordinated internationally, which makes it difficult to target terrorists and easy for them to permeate our society” (p.188). Also, the cells that oversee these terrorist campaigns are highly mobile and global in scope.
As Iacobucci (2011) notes, “instructions for the events of 9/11 were given in Afghanistan, planning took place in Italy and Germany, preparations were made in the south-eastern United States, and the attacks were executed in the north-eastern United States. Associates of those who flew the planes and others trained by Al Qaeda at its camps in Afghanistan have been traced to connections in widely dispersed parts of the world, including Canada. Under these circumstances, while there may be preferred targets, no country is immune from the risk of a terrorist attack” (p.188).
Lindsey Graham, a United States Republican senator and supporter of a controversial new counter terrorism law that allows the United States military to detain a terrorist suspect indefinitely without trial, argues that extraordinary measures remain necessary to effectively contain the threat of Al Qaeda. “We’re facing an enemy, not a common criminal organisation, which will do anything and everything possible to destroy our way of life…When you join Al Qaeda you haven’t joined the mafia, you haven’t joined a gang. You’ve joined people who are bent on our destruction and who are a military threat” (Graham, cited in McGreal, 2011: n. pag.).
In dealing with terrorist factions, governments also appear to apply a distinction, consciously or unconsciously, between so-called “rational terrorists and irrational ones” (Neumann, 2007: p. 128). Though the violence perpetrated by groups such as the IRA, the ETA and the LTTE is unconscionable, its political aims are far more recognisable and understandable to the Western mind. As Neumann (2007) asserts, “if the IRA and ETA appear to be more rational than, say, Al Qaeda, it is because their goals – nationalism and separatism – have a long history in Western political thought. Al Qaeda’s aim of re-creating an Islamic empire is no more absolutist, or realistic, than was imposing a nationality on a reluctant population or turning East Germany into a Marxist workers’ republic. The difference is that Al Qaeda’s ideology has not become part of the twenty-first century’s DNA and thus remains difficult to rationalise” (Neumann, 2007: p. 128).
Thus, in the case of terrorist organisations with clearly defined political aims that wage violent campaigns against civilians in order to manifest those goals, human rights are affected both by the political act of terrorism and the policies that governments employ in their efforts to deal with terrorism. In recent years however, specifically in the example of Al Qaeda, the political aims of the group appear to be the eradication of the liberal democracies of the world, to be replaced by fundamentalist Islamic states that intend to crush universal human rights entirely. While many scholars argue that Al Qaeda itself was formed in response to the continual, long term infringement of human rights that occurred in the Middle East from the Cold War onward, the group’s goal nonetheless counters any hope for human rights whatsoever.
Through terrorism, however politically motivated or justifiable, innocent people nonetheless suffer needlessly as a result of attacks that lead to violation of their basic rights to live in security and peace. Therefore, these rights must also be considered in the process of prosecution.
Terrorists’ Human Rights and the Implication for the Rights of Victims of Terrorism
Human rights organisations have in many cases differed with the counter terrorist campaigners in the way in which the issue of terrorism should be handled. These differences are based on the fact that the rectification of the terrorist actions should not in any way violate the basic rights of individuals who are all part of humanity.
On the other hand, the attempts made by the human rights organisations to protect the rights of the terrorist suspects is viewed as violating the human rights of the terrorist victims whose security, peace and life is threatened by their actions. The office of the United Nations High Commission of Human Rights has however chosen to perceive the issue optimistically, arguing that the protection of human rights acts as a supplement to the measures taken to combat terrorism, rather than undermining its efficiency (Office of the United Nations High Commissioner for Human Rights 2008: p.66).
The research question that guides this study asks how are human rights affected, both by terrorism as a political act and by the policies that aim at dealing with terrorism, begs the question, what about the human rights of the victims? In the case of the 9/11 attack, 2,753 human beings lost their lives, 3,051 children lost one of their parents, and only 291 bodies were ever recovered from the debris once the World Trade Centre had fallen (The Ottawa Citizen, 2011).
What of the human rights of these victims, human rights victims advocates argue? What of the rights of these victims to go to work, raise their families and live their lives without being killed? Herein lies the friction between human rights advocates who argue that terrorists must receive the same human rights as the victims of their terrorist campaigns. This reveals some of the issues that lead to a clash between human rights organisations and advocates, and governmental efforts to combat terrorism. Both sides seem to be in perpetual disagreement, arising from their differences on the most appropriate approach.
Following the 9/11 terrorist attacks in New York City, civil liberties and human rights came under duress. 1,200 males of Middle Eastern descent were immediately detained; 775 were sent to the infamous Guantanamo Bay detention complex in Cuba, although these numbers have not been verified (Farrell, 2011; Held, 2008; Pojman, 2006). The United States government, under the administration of George W. Bush, initiated a series of “military, law enforcement, and intelligence efforts [that] resulted in a wide range of terrorism-related detentions” (Farrell, 2011: p.3).
For the Guantanamo detainees, both Amnesty International and the Centre for Constitutional Rights condemned the actions of the government of the United States following 9/11, in terms of its complete lack of respect for the human rights articulated by the United Nations.
One of the most egregious human rights abuses that occurred during that time in history was the denial of habeas corpus, the legal action via which a prisoner may be freed from detention when his or her case lacks sufficient evidence. Habeas corpus represents one of the fundamental tenets of the International Covenant on Civil and Political Rights, a proposal adopted by the United Nations Human Rights Commission as part of an international rights provision in 1952 (Farrell, 2011; Sterba, 2003). As Farrell (2011) explains, “habeas corpus, an ancient writ considered to be one of the most fundamental guarantees of personal liberty, provides for the judicial determination of the legality of a person’s detention, and for the person’s release if the detention is unlawful” (p.3).
The importance of habeas corpus, from a human rights perspective, lies in its value as “a critical safeguard against the arbitrary imprisonment of any person” (Farrell, 2011: p.4). Habeas corpus is understood by legal experts as one of the cornerstones of human rights. This fact exists because the habeas corpus writ “performs a vital role in ensuring that a person’s life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or treatment” (Farrell, 2011: p.4). Legal opinion demonstrates that “the right to life and the right to humane treatment are threatened when habeas corpus is unavailable” (Farrell, 2011: p.4).
In the case of the Bush administration following 9/11, the unilateral decision of the government to transfer detainees to Guantanamo Bay struck a sour chord with human rights advocates and legal scholars alike. As Farrell (2011) notes, once “the Bush Administration announced its decision to move detainees to the U.S. naval facility at Guantanamo Bay, Cuba, military law experts suspected that the administration chose the location in part because of the view that it would be beyond the reach of federal courts” who would grant habeas corpus” (p.18).
Counter-Terrorism and Human Rights
The increasing threat of terrorism in the world today has resulted in an equal increase in the efforts to combat terrorism. As a matter of fact, states and countries all over the world have an obligation to protect their citizens from acts of terror and to ensure their security.
Unfortunately, the majority of counter-terrorism measures undermine the very rights they seek to safeguard. This reality occurs despite the fact that terrorism entails serious breaches of human rights. However, perpetrators of such criminal acts should certainly not be made to enjoy impunity. Notwithstanding this common knowledge, cases of breaches of the human rights of perpetrators continue to unravel. This reveals the extent to which counter-terrorism acts and measures breach human rights.
For total security to be achieved in the national and international level, players must understand that this can only be guaranteed when it is based on the universal respect of human rights and democracy. As previously noted, this principle fact is often left out of the discourse around the war on terrorism and counter-terrorism.
Extradition and Torture
Under the new sweeping powers that almost resembled martial law post-9/11, the United States government “detained citizens and non-citizens, charging some with criminal offenses while declining to charge others” (Farrell, 2011: p.3). The swift detainment of these individuals and the removal of them to the Guantanamo holding facility as well as the Bagram Airfield in Afghanistan raised multiple human rights issues and violations after the 9/11 attacks.
The main concerns from a human rights perspective were the rights of all individuals to be treated in a civilised manner, whether incarcerated or free; the rights of all individuals who have been detained to access information on their arrests and to be told the reason for their arrest; the rights of all individuals to gain access to legal representation immediately following their arrest; the rights of all individuals to be allowed to dispute their incarceration and challenge its lawfulness in a court of law; and above all, the rights of all individuals to be presumed innocent until proven guilty.
The main question comes back to identification, namely, the arbitrary identification of a detainee or suspect as a terrorist, or as a victim of terrorism. As certain egregious examples in recent history have shown, while a victim of terrorism typically enjoys the full array of human rights afforded to ordinary law abiding citizens, in certain cases, ordinary law abiding citizens minding their own business can be stripped of all human rights and all expectation of basic human rights once they are labelled a terrorist, terrorist sympathiser, or simply find themselves in the wrong place at the wrong time. Consider the chilling example of Maher Arar, a Canadian engineer who fell afoul of the United States government immediately after 9/11.
Maher Arar was detained at the Kennedy Airport in New York City on his way back home to Canada from a family vacation in Tunisia in 2002. On the heels of “inaccurate RCMP intelligence reports” from Canada, the United States officials deemed Arar a person of interest with links to the Al Qaeda network (Sallott, 2006: n. pag.). Despite spotty evidence and the fact that Arar had been a Canadian citizen since 1987, the United States officials deported him to Syria, where he spent a year incarcerated under unspeakable conditions in a Syrian military intelligence detention centre and endured physical and mental torture at the hands of the Syrian government as a suspected terrorist.
A commission of inquiry subsequently refuted the entire affair and stated “categorically that there is no evidence to indicate that Mr. Arar has committed any offence or that his activities constitute a threat to the security of Canada” (Sallott, 2006: n. pag.).
The utter dissolution of Maher Arar’s human rights and the loss of the protection of his citizenship served as a dire warning for human rights organisations that feared the precedent this case set. In the post-9/11 world, the all-important feature of human rights laws appears to be the label; if a person is labelled a victim of terrorism, he or she can demand human rights. If he or she is labelled a terrorist, he or she will essentially be stripped of all rights, denied all recourse, and subject to all manner of detention, deportation, or even torture.
The transfer of individuals who are suspected for terrorist activities has significant implication on human rights, as evidenced by the case of Maher Arar, as well as international relations. The transfer of terror suspects can significantly affect international relations. For instance, the process in which the exercise is conducted may be seen to violate basic human rights, including among others the non-derogable right to freedom from torture, cruel, inhuman and undignified treatment.
Another infamous example of egregious human rights violations under the auspices of the War on Terror occurred in the case of the Tipton Three, a trio of young Muslim men from the United Kingdom who were detained as suspected terrorists in 2001. The Tipton Three – Rhuhel Ahmed, Asif Iqbal and Shafiq Rasul – were all in their late teens and early twenties when they were arrested in northern Afghanistan in November of 2001 by soldiers loyal to General Abdul Rashid Dostum, an Afghan warlord (Branigan and Dodd, 2004). The three young men heralded from Tipton, a city located in the United Kingdom (Branigan and Dodd, 2004).
General Abdul Rashid Dostum’s forces handed the Tipton Three over to the U.S. troops in Afghanistan, who subsequently shipped them out to Guantánamo Bay to be interrogated as suspected terrorists with links to Al Qaeda (Branigan and Dodd, 2004). The Tipton Three experienced three full months of solitary confinement in the isolation wing at Guantánamo, after they were “wrongly identified by the Americans as having been pictured in a video tape of a meeting in Afghanistan between Osama bin Laden and the leader of the 9/11 hijackers Mohamed Atta” (BBC News, 2004: n. pag.).
United States officials have officially denied that the Tipton Three were harmed in any way during their detention. At the time, Colin Powell, the U.S. Secretary of State asserted that “we have watched Guantanamo Bay very carefully, knowing of the interest of a number of nations, including the United Kingdom, and knowing that we have responsibilities under the Geneva Convention, and because we are Americans, we don’t abuse people who are in our care” (BBC News, 2004: n. pag.).
Once in Guantánamo, the Tipton Three spent two years in detention, without access to legal representation, before finally being released without charge in March of 2004 (Branigan and Dodd, 2004). The “two-and-a-half-year ordeal has…left them with serious physical problems including knee and back pain – because of the positions in which they were shackled – and, in the case of Rhuhel Ahmed, permanent eye damage” (Branigan and Dodd, 2004, n. pag.).
The Guardian newspaper published excerpts from the 115 page report compiled from interviews with the Tipton Three following their release and subsequent acquittal. The report details numerous human rights infractions that the men experienced while under detention, and recounts “a disturbing picture of the rat, snake and scorpion-infested cages in which the men lived, exposed to blistering daytime temperatures, freezing nights and torrential rain. [The report] details alleged abuses and deliberately inhumane practices – such as sleep deprivation, shackling in painful positions and sexual humiliation – implying that these were deliberately used to encourage detainees to cooperate” (Branigan and Dodd, 2004, n. pag.).
The example of Maher Arar in particular reflects the importance of transparency in the extradition process from a human rights perspective. Lack of transparency in the extradition of terror suspects is a major concern for human rights organisations, as it too easily leads to the disappearance of individuals who may or may not be guilty of terrorism. As Warren Christopher, a former secretary of state for the United States observed, “we must be careful in this country never to court that kind of situation of holding people without releasing their names. It leads us down the road of the disappeared.
The names of people should be revealed so that relatives will know what has become of their loved ones” (cited in Strossen, 2003: p.380). Once the suspect falls off the radar, he or she may be next to impossible to track and the beyond the scope and protection of the international legal system and human rights organisations such as Amnesty International and Human Rights Watch. Thus, it is necessary to effect proper coordination between the countries involved to ensure that any terror suspects are to be transferred in a more transparent way, a way which is consistent with the human rights mandates and standards at both the international and the national levels.
According to the legal rights outlined by the United Nations, detainees and terror suspects have the right to be notified about the reason for their detention and the offence for which they are being charged (Office of the United Nations High Commissioner for Human rights 2008: p.825). Detainees and terror suspects should also be allowed to access to legal counsel – a right that was infringed upon for most of the detainees subsequently released from Guantánamo Bay.
At the national level, authorities have the responsibility of ensuring that all of the transfers, arrests, and detentions remain in accordance with the standards of human rights outlined by the United Nations and the Geneva Convention, as well as with all applicable statutes of international law. In this case, past studies have failed to compare the differences and the similarities on the various approaches applied by different countries to handle each case of terrorism.
For instance, Strossen (2003) carried out an intensive study on the views of many human right activists and legal scholars in mitigating terrorism. The emphasis of the study was on the counter terrorist activities of the Bush administration following the 9/11 attack. Strossen’s (2003) study provided insight into the legal fate of “civilians who were living peacefully in our midst here in the U.S. but who have been swept up in the post-9/11 investigation, in most cases apparently only or largely because of their national origin or religion, the far larger number of individuals who have been secretly imprisoned all over the United States as part of the post-9/11 round-up. According to the Bush Administration, approximately 1200 such people had been imprisoned as of November 2001” (p.381).
The study offered a worrisome picture of the tactics that the Bush administration undertook in the years following 9/11, effectively rounding up suspects with little or no evidence or respect for due legal process (Strossen, 2003). In fact, legal scholar Stuart Taylor observed that “not since the World War II internment of Japanese-Americans have we locked up so many people for so long with so little explanation. [We must] ensure that these people are treated with consideration and respect, that they have every opportunity to establish their innocence and win release, and that they do not disappear for weeks or months into our vast prison-jail complex without explanation” (cited in Strossen, 2003: p. 382).
As Strossen (2003) explains, legal scholars and “all members of the public…are entitled at least to basic information about them so that we can assure their fair and humane treatment. Yet the Bush Administration has stonewalled repeated requests for the most basic information about these secret prisoners” (p. 381). However, Strossen (2003) did not make any attempt to compare the different views on the rights of terrorism perpetrators who often go through untold suffering in the hands of their interrogators, as evidenced by the Tipton Three. Vicious extradition and secret imprisonment indeed reflect a less than democratic response to terrorism, and herein lies one of the main purposes of the research into human rights and terrorism.
This study seeks to fill such a gap. Several cases from the past have clearly demonstrated how the process of transporting terror suspects can raise critical human rights issues. One of these cases involved the transfer of Al Qaeda terrorist suspects from Bosnia to the United States. The suspects were perceived to have planned to bomb the U.S Embassy in Sarajevo (Naegele, 2002). This led to protests as some believed that there was not enough evidence against the terrorists.
Therefore, transferring them to the United States as terrorists was against their rights as human beings. Some of the protestors also argued that the fight against terrorism was more accurately named as a fight directed towards Islam (Naegele, 2002: n. pag.). In turning the six Algerian suspects over to the United States without proper evidence, Srdjan Dizdarevic, the chairman of the Helsinki Human Rights Committee located in Bosnia, stated that Bosnia “violated the European Human Rights Convention and overruled a decision by the country’s Human Rights Court.
As a result, the Bosnian government is putting in question the functioning of the state and legal institutions of the system and rights of Bosnia’s citizens” (cited in Naegele, 2002: n. pag.). As evidenced in this example, the extradition of terror suspects can create human rights infringements in the realm of legal representation and the right to be told the reason for the arrest.
Kalhan et al. (2006) discussed the nature of arbitrary and non-uniform enforcement of the measures against terrorism as one of the main causes of the controversy surrounding the fight against terrorism (p.174). The study provided an overview of the anti terrorism measures undertaken by the Indian government in the wake of 9/11. In 2004, the Indian government repealed the onerous anti terrorism laws mandated in the Prevention of Terrorism Act of 2002, which was passed in response to the terrorist acts that took place in New York (Kalhan et al., 2006).
From the point of view of human rights violations, the Prevention of Terrorism Act of 2002 “had established a permissive set of legal rules to prosecute acts of terrorism largely outside the ordinary rules of the regular criminal justice system” (Kalhan et al., 2006: p.96). While it is true that the Prevention of Terrorism Act of 2002 was enacted under extraordinary circumstances, as Kalhan et al. (2006) point out, “the statute built upon a long tradition of antiterrorism and other security laws in India dating since well before independence.
While India has faced serious threats from terrorism and other forms of politicised violence for decades, these special antiterrorism laws have not proven particularly effective in combating terrorism. Terrorism has persisted as a problem notwithstanding these laws, under which few of the individuals charged have been convicted” (p.96). This brings up a salient point that this study seeks to explore in more detail – namely – the fact that efficacy of anti terrorism laws in actually combating and preventing terrorism remains questionable from the perspective of legal scholars and human rights organisations alike.
In fact, as Kalhan et al. (2006) argues, “antiterrorism laws in other countries, including the United States…have raised significant human rights concerns. Some of those concerns have remained even in the aftermath of [the law’s] repeal, since the Indian government has preserved many of the law’s provisions in other statutes” (p.96). In the case of India, antiterrorism laws have shown minimal impact in the reduction and prevention of terrorist action (Kalhan et al., 2006). The concern for human rights infringements caused by the laws, Kalhan et al. (2006) explain, is not “simply a moral and legal imperative, but also a crucial strategic imperative. Terrorism often thrives where human rights are violated” (p. 96). Whether or not this is the case remains the aim of this study.
Certainly, human rights organisations will agree with the observation made by Kalhan et al. (2006) that “the lack of hope for justice provides breeding grounds for terrorism…since terrorists often deliberately seek to provoke an over-reaction and thereby drive a wedge between a government and its citizens – or between ethnic, racial, or religious communities – adhering to human rights obligations when combating terrorism helps to ensure that advocates of violence do not win sympathy from the ranks of those harmed and alienated by the state” (p.96).
While Kalhan et al. (2006) argues that there is a need for the government to consider impartiality while addressing the issue of terrorism, the study nonetheless failed to come out clearly on the issue of arrest warrants and suspect surrender procedures between states. Therefore, this omission raises the need to undertake a more comprehensive and critical analysis in this field.
According to Oberleitner (2003), we live in a counter terrorism world and therefore there is a need to be prepared for terrorist attacks (p.1). Oberleitner (2003) also noticed that the gap between the language of human rights and the language of security is widening (p.2). As Oberleitner (2003) observes, “human rights have to be limited, truncated and reduced. We have to choose between security and human rights, between safety and liberty, between protection and freedom. Human rights can be traded off for more security, and ultimately security concerns trump over human rights. Two different sets of language are being spoken, the language of human rights and the language of security, growing apart more and more each day” (p.1).
In connection to this statement, it is also argued by many legal scholars and counter terrorist agencies that there is a need to limit human rights to some extent in an effort to combat terrorism. A belief exists that human rights will essentially facilitate terrorism, in that the concern for the human rights of the terrorists will hamstring authorities who require carte blanche to extract information from terrorists in order to prevent future attacks.
This study however does not cover the issue of the rights to security arising from the issue of terrorism. Examples such as Maher Arar and the Tipton Three highlight the concern for counter terrorism measures that trample basic human rights. Again, the argument appears to stem from the understanding that a commitment to the maintenance of human rights and effective counter terrorism measures remain mutually exclusive pursuits.
In some cases, terror suspects are highly susceptible to torture. This has raised critical concerns on the issue of human rights. For instance, some people have been deported or expelled due to terror charges. When suspects of terror are suspended from their countries of origin, they are more likely to face ill treatment or torture (Office of the United Nations High Commissioner for Human Rights 2008: p.11).
For instance, many terror suspects have been found to have been severely beaten and injured in order in an attempt to force them to give information. The aforementioned examples of Maher Arar and the Tipton Three iterate this fact. However, it may be perceived that there is not enough evidence from the suspect’s country, as in the aforementioned example from Bosnia. The perpetrators have the right not to pass through any kind of torture or any other form of treatment that degrades their dignity as members of humanity (Thomas 1999: p.124).
In addition, the suspects of the terrorist cases need to remain innocent until they are proven guilty in the court. However, previous studies have not adequately addressed the security issues rising from the process of judgement. Also, the strength of the terrorist label still carries weight, sometimes enough weight to blind authorities to the human rights of the accused.
Human rights advocates and organizations argue that national security and counter terrorist agencies bias towards the use of torture as the most effective means to glean information from suspected terrorists when all other so-called legal methods fail. This bias remains a near guarantee that the human right not to be tortured will be infringed (Massimino, 2011: p. 23). However, numerous human rights scholars point to the fact that suspected terrorists whose human rights are infringed via torture nearly always provide erroneous information. The fact remains, these scholars argue, that people will say what they need to say in order to stop the torture, whether it is true or false.
As Massimino (2011) notes, this leads misplaced faith in the efficacy of torture leads to “faulty intelligence, lost lives, [and] a propaganda victory for America’s enemies” (p. 23). The recent discovery of bin Laden’s location and subsequent death of the Al Qaeda leader serves as a “vindication of legal, humane interrogation and an indictment of water boarding and other so-called enhanced interrogation techniques. Professional interrogators argue that torture actually hindered the hunt for bin Laden. It failed to produce crucial information from detainees. But it did produce something: bogus intelligence” (Massimino, 2011: p. 23)
Rights to Fair Trial, Principle of Legal Certainty and Freedom from Discrimination
Different countries have differing measures that they employ in order to deal effectively with the threats or actions of terrorism. Whereas there have been many United Nations counter-terrorism conventions dating from the 1960’s, many countries provide a broad catch-all legal norm applicable to numerous forms of lawful and unlawful conduct. The wide range of these laws enables authorities to abuse individuals’ human rights, particularly in the case of suspects labelled as terrorists. Lack of clarity in counter-terrorism measures extends police powers and breaches the human rights of terror suspects, by enhancing the scope given to police in pre-trial stages of investigation, arrest, interrogation, detention and trial.
In the recent past, the cases of Al Qaeda attacks led to a declaration of the global war against terrorism (Blanchfield, 2010: p.56). This fight was intensified by the Al Qaeda attacks of September 11 which left over 2000 innocent New Yorkers dead (Grunwald, 2001: n. pag.). The declaration of the global war on terrorism was characterised by the employment of more rigorous and some critics argue draconian measures to deal with terrorism. These harsh measures that are aimed to curb terrorism activities have raised a concern on the issue of human rights. This is more so in the United States as well as the countries that have agreed to join hands in the fight against terrorism in the world.
As a result of these issues of human rights infringements, many counter terrorism campaigners have clashed severely with the campaigns of human rights organisations, such as Human Rights Watch and Amnesty International. During his administration, President George W. Bush took a tough stance on the war against terrorism. This put his administration at loggerheads with the human right organisations almost immediately, and led to multiple law suits in the United States (Held, 2008).
Many countries like the United Kingdom, Australia and others have also been accused of hampering civil liberties for some of the citizens in the quest to foil terrorist plots at home (Golder & Williams 2006: p.46). For instance, the European Union has been accused by the human rights organisations of placing alleged terror suspects under illegal detention and taking the terrorist suspects to other countries where they undergo torture during interrogation in a similar instance as what befell Maher Arar.
These cases occur despite the fact that this form of treatment is not in line with the international declaration of the human rights which accords special recognition of every human being as a member of humanity. However, this declaration has no legal power (High Commissioner for Human Rights 3). In spite of this declaration, it was observed that the majority of countries continued to threaten basic human rights (Bureau of Democracy, Human Rights and Labour 2010: par 18).
In order to solve the issues arising from the efforts directed towards combating crime, the international law must place prescriptions on the balance between the human rights and confrontation of terrorism. These prescriptions must emphasise the need to respect the rights of both the terror victims and the terror perpetrators. After the terrorist attacks of September 11, many countries focused on the fight against terrorism. Some of these officials included the former UN secretary general Kofi Annan (Yotopoulos-Marangopoulos, et al 2004: p.96).
Following the intensification of the fight against terrorism, a number of human rights campaigners called upon the governments to ensure that all the measures taken to combat terrorism would not in any way or another interfere with human rights and fundamental freedoms (Yotopoulos-Marangopoulos, et al 2004: p.96).
However, in the United States especially, a hard line toward terrorism – and by extension, human rights abuses – persists in the current Obama administration. In December of 2011, President Obama dropped a motion to veto a powerful new security law that allows the U.S. military to detain suspects accused of terrorist acts indefinitely without trial. As McGreal (2011) notes, this law represents a blow for civil liberties and human rights organisations and activists have been deeply dismayed at its passage and at Obama’s support for “a draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country” (n. pag.). “Human rights groups accused the president of deserting his principles and disregarding the long-established principle that the military is not used in domestic policing. The legislation has also been strongly criticised by libertarians on the right angered at the stripping of individual rights” (McGreal, 2011: n. pag.).
This new security law threatens some of the most basic human rights – the right to legal defence and the right to a speedy trial, to name a few – and, as McGreal notes, what is even more worrisome about this law is that it “effectively extends the battlefield in the war on terror to the US and applies the established principle that combatants in any war are subject to military detention. The legislation’s supporters in Congress say it simply codifies existing practices, such as the indefinite detention of alleged terrorists at Guantánamo Bay” (n. pag.).
However, human rights advocates such as Tom Malinowski of Human Rights Watch have called the law a throwback to the days of the Bush administration. “It’s something so radical that it would have been considered crazy had it been pushed by the Bush administration. It establishes precisely the kind of system that the United States has consistently urged other countries not to adopt. At a time when the United States is urging Egypt, for example, to scrap its emergency law and military courts, this is not consistent” (cited in McGreal, 2011: n. pag.).
Proponents of the law argue that terrorism calls for extraordinary measures. Essentially, because the enemy demonstrates little regard for human rights, proponents advocate the use of draconian laws to effectively curtail their activities. Republican senator Lindsey Graham, for example, observed that “it was right that Americans should be subject to the detention law as well as foreigners [and] it is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next…when they say, I want my lawyer, you tell them, Shut up. You don’t get a lawyer” (cited in McGreal, 2011: n. pag.).
Over the years, there have been a number of different measures that have been applied in the fight against terrorism. The first anti-terrorism legislation was the ordinance No. 33 of 5708 which was passed in 1948 by Israel (Legalsutra 2011: par 26). Many people have proposed different ways through which the issue of terrorism can best be solved. However, the issue of the best method to employ to combat terrorism, and the most effective means for the matter to be handled both on the national and international level, still remains controversial. “When we see that the struggle for human rights in all the world is the surest and best means to prevent and to punish terrorism properly so-called, we then understand what progress we have made, and we will see where we need to go from here” (Tigar 2011: par 19).
Tigar (2011) emphasised the need to undertake a critical consideration of the issue of terrorism from the global perspective, and to consider its implications on human rights in order to make the most effective decisions on the way forward regarding the issue. As already noted, the war against terrorism has been challenged by a number of controversies.
For instance, the approach taken on the war against terrorism is perceived in a negative manner by most Muslims all over the world. In fact, the majority of Muslims hold the belief that “what is called the struggle against terrorism is really a fight against Islam, against Muslims” (Naegele, 2002: n. pag.). This point of view takes root in Muslim communities the world over because many Muslims view the action as a threat towards their community and their religion, and therefore as a direct threat to their rights to worship as they see fit as free human beings. Furthermore, the war on terrorism is often viewed as torture for the Muslims.
Muslim societies in Christian-dominated parts of the world still feel that they are not treated equally compared to their Christian neighbours, due to their practices of religion and faith. In other words, the actions taken to counter terrorism are viewed as fundamentally violating the rights of the Muslims as human beings. This aspect hinders the success of the war against terrorism, since some communities may not cooperate, because they feel they are being undermined (Blanchfield 2010: p.16).
The 9/11 attacks led to a myriad of measures geared towards counter-terrorism. These measures have been continually scrutinised as concerns about human rights infractions are continually raised. Tension arose after the adoption of these measures over the respect for human rights. The major problem was that the Counter Terrorism Committee rarely took into consideration the issue of human rights while giving directions to the member states to have stringent measures to curb terrorism in the world (Council of Europe Committee of Ministers 2005: p.46).
After the 9/11 terrorist attacks in New York the issue of the balance between security and the respect for the human rights raised serious concerns. Leonard (not dated: par 7) observed that human rights cannot be respected if the security of a nation is threatened – definitive proof that core security concerns continue to trump human rights concerns. Therefore, significant concern arose from the international human rights committee to marry the two – equal concern for security with equal concern for human rights – and to counter the opinion that the two must remain mutually exclusive.
More concerns were raised after the comment made by the Chairman of Counter Terrorism Committee that the issue of human rights was outside the mandate of the committee (Tsang 2008: p.45). This revealing statement triggered the action by the human rights organisations to push for the consideration of the human rights in the fight against terrorism. In connection to this, the Security Council resolution 1456 emphasised the responsibilities under the international law for the States to ensure that they comply with international human rights and humanitarian and refugee laws in the measures taken to deal with international terrorism (Great Britain: Parliament Joint Committee on Human Rights 2008: p. 45).
This case illustrates that it is difficult to combat terrorism without raising issues of human rights. Typically where one exists, the other does also. The main concern for legal scholars and human rights organisations and activists now is how to optimise the two cases – that is, how to combat terror while simultaneously minimising the violation of basic human rights in the process.
Later, the General Assembly took further action with another resolution, which promoted the protection of human rights and important freedoms in the fight against terrorism. In order to ensure that these mandates were met, the High Commissioner for Human Rights was assigned with the responsibility of ensuring that human rights are protected in formulation and implementation of the counter terrorism measures. The commissioner was also responsible for giving recommendations to the United Nations and the governments on the necessary measures to employ in order to protect the human rights of terrorist suspects and terrorist victims alike.
Therefore, the Committee members of human rights organisations provided the necessary guidelines to be considered in order to promote human rights in the battle against terror. From that point, the United Nations human rights bodies continued to monitor closely the implications of the measures adopted to combat terrorism on human rights form an international point of view (Paul 2004: p.940).
According to Roger (2005), the fight against terrorism has made immigrants more susceptible to mistreatment (par 6). Some of the issues which were closely considered by the human rights committee included elimination of torture, racial discrimination and any possible activities which threaten human rights. Other non-governmental organisations have recently joined forces in an effort to ensure scrutiny on the continued observation of the law (Roger, 2005).
The response to the terrorism activities at the national level has also been similar to the approach at the international level. It has been characterised by a contradiction over the human rights concerns raised in the battle against terrorism. In the past, many states have been responding to the issue of terrorism in their own ways. Many countries have their own regulations which guide how they handle terrorism cases.
However, these regulations were revised following 9/11 which called for intensification of the security measures employed to counter terrorism. According to Odello and Cavandoli (2011: p.148), the measures that had been applied earlier were not sufficient to solve the problem of terrorism in the contemporary world. Although many states had earlier employed several measures to combat terrorism, these measures proved futile after 9/11. This is because the laws that were directed to probe and arraign terrorists in court were no longer satisfactory (Bassiouni 1988: p.110). For instance, there was a need to intensify the measures which could help prevent the crime from happening.
Although several countries had been applying terrorism prevention measures, these measures were not sufficient to combat terrorism, which has been intensifying each and every day (Council of Europe 2002: p.123). The preventive measures in this case were of great importance as they promoted the effectiveness of the counter terrorism laws. The report published by Inter-American Commission on Human Rights (2002) however insisted on the need to have a vigilant investigation in order to promote fair judgment (par 1).
Following the 9/11 attacks, several countries revised their definition of crime. Before the incident, this was only prevalent in the countries that were at a higher risk of national terrorism (Shattuck 2003: p.185). However, various countries have been applying the terms involving detention, prosecution and punishment of terrorist suspects in varying ways (Baskaran 2003: p.40).
State of Emergency
In most cases, the state emergency powers have been usually applied severely to justify application of certain measures which could be considered to infringe basic human rights. In a state of emergency, a state is justified in applying severe measures for the sake of national security. However, the human right organisations have been arguing that this freedom has been misused as an excuse to apply measures that violates the State’s treaty obligations (Saul 2006: p.86).
Essentially, the problem lies in the fact that the state emergency laws were never designed to be applied indefinitely. Now, over 10 years after 9/11, the crisis mentality and state of emergency mindset appears to persist, particularly in the United States and the United Kingdom. These obligations required the states to ensure that they consider human rights in taking counter terrorism measures from the level of investigation to the punishment of terrorist suspects.
The continued application of the state emergency laws, as evidenced by the aforementioned recent security laws passed in the United States, demonstrate the commitment of the United States government to combat terrorism by any means it deemed necessary, including the eradication of basic human rights, such as: habeas corpus, the right to a speedy trial, the right to legal representation, and the right of the individual terror suspect to be informed of the nature of the charges that have been brought against him or her.
However, it is important to note that the international human rights law recognises the fact that states sometimes face some cases of emergency where they may face violent conflicts and other major problems which may pose a great threat to the nation (Burton & Shapiro, 2010: p.417). For instance, the cases of terrorism have increased significantly since 9/11, and therefore there may be the need to continue to have emergency cases in place (Greenberg, 2005: p.45). The human rights laws have clearly defined the acceptable measures which are applicable in this situation in an attempt to balance the national security with the respect for human rights.
However, the human rights committee has helped in the formation of the boundaries which have attempted to balance the measures applied in different states and the respective national security concerns (Kälin & Künzli, 2009: p.89). In other words, the human rights laws have attempted to marry both the national security and the human rights commitments, in order to come up with the most effective laws to deal with the situation (Santow & Williams, 2011: p.3).
For instance, some of the specifications in several human rights treaties have agreed with some of the measures that required a short term suspension of some rights, in case there is a high security threat from a terrorist attack with legitimate intelligence (Lynch, MacDonald & Williams, 2007: p.134). Some of the states which have declared the state of emergency include the United Kingdom, where it was determined that the right to apply exceptional measures for the sake of national security existed (Great Britain Parliament 2005: p.35).
Security forces the world over have been severely challenged since 9/11 to come up with a viable program to prevent terrorism, effectively minimise the conditions that lead to terrorism, and to effectively conduct counter terrorism measures that work to bring safety to the collective society. The fundamental question that the study arrives at naturally therefore is whose human rights are more important – the human rights of the individual, in this case the individual terrorist suspect – or the rights of the wider society to enjoy the peace and security and freedom from fear?
In conclusion, this study will be very useful in helping human rights policy makers and international law makers to develop a clearer understanding of the delicate balance that exists between maintaining a commitment to upholding human rights while conducting counter terrorism activities. The study seeks to determine some of the prevailing attitudes that counter the goals of international human rights organisations to further the agenda of human rights in the war on terror.
The study will also provide the necessary insight into the main areas that lead to conflicts between human rights organisations and counter terrorism government officials; namely the belief that national security must come at the cost of human rights, particularly the human rights of the terrorist suspects. From the discussion above, the study makes clear that the issue of terrorism and anti-terrorism measures have brought major concerns to bear on the issue of human rights, especially since the 9/11 attacks.
A clear need to adopt more democratic measures which take into account basic human rights while conducting counterterrorist activities exists. Therefore, the insights gleaned from this study will lead to a more effective and more humane war against terrorism, promoting national and international security while upholding the commitment to human rights.
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