Terrorism and Counter-Terrorism in International Humanitarian Law

Abstract

Terrorism is has a direct and significant effect on human rights, the consequences of which are devastating on peoples enjoyment of their fundamental rights such as the right to life, fair treatment of victims and liberty. In addition, acts of terrorism are costly to the stability of governments, destabilize efforts of civil societies, threaten peace and security, and hinder economic growth and development. These factors touch on the enjoyment of human rights of the global citizenry. As far as most governments are concerned, the security of their citizens is a basic human right hence they do whatever they can in order to protect individuals accordingly. This is where states are obligated to ensure that human rights of their nationals are protected against threats of terrorism. Therefore they ensure that the perpetrators of acts of terrorism are brought to justice. This paper researches on terrorism and counter-terrorism in the context of human rights. It puts the real scenario of how victims and perpetrators of terrorism are treated (or should be treated) with regard to fundamental aspects of human rights.

Introduction

In as much as terrorism has a direct effect on human rights, recent years have witnessed States taking a number of measures to counter terrorism and some of these measures have posed severe threats to human rights and the rule of law. For example some states have used measures such as torture and other gross acts in the name of countering terrorism, disregarding outcries from legal independent organisations that are responsible for detection and prevention of torture. On the other hand, some states have been accused of sponsoring acts of terrorism in nations where they feel intimidated by grave abuse of their citizens due to torture among other violations. Thus, they have by themselves violated the international principle of non-refoulement.

Consequently, the respect for human rights and the rule of law has lacked its meaning in international fight against terrorism. What this mean is that, there is an urgent need to create national or even international counter-terrorism strategies that are not only intended to detect and prevent terrorism, and/or bring those responsible for these gross acts to book but they should also foster and protect human rights and the basic rule of law. Such measures should be directed towards the conducive factors that promote terrorism, these includes; the absence of basic rule of law, ethnic tensions, political extremisms, economic and religious discrimination, and most importantly the violation of human rights. With this in mind, the consequences would be to encourage active leadership and participation of the civil society in the fight against terrorism, the condemnation of human rights violations, and the prohibition of those who commit such acts in the context of natural law. In summary, due attention should be directed to the victims of whose human rights have been violated, this can be done through compensation and even restitution.

Effects of terrorism and counter-terrorism on human rights

Human rights are regarded as universal principles and legal value that are created to guarantee the protection of individuals as well as groups against measures and exclusions of State agents that are contrary to their fundamental rights, freedoms and dignity. Acts of terrorism impinge democracy, human rights and the rule of law. Terrorism kills the values that are placed at the center of the United Nations Charter and other international bodies. These values include: peaceful conflict resolution, legal principles on armed conflict and safety of civilians, tolerance of other people’s views and opinions, and the respect for human rights and the rule of law. The negative effect of terrorism on human rights and international security has been noted and documented at the uppermost level of the UN; particularly by the UN General Assembly, the UN Security Council, and the UN Human Rights Council. [1] In particular, Member

States have unambiguously agreed that terrorism: is a threat to the dignity and primary security of individuals and groups globally, puts the lives of innocent civilians in danger, creates a fearful environment, endangers fundamental freedoms, and violate human rights and the rule of law. In addition, terrorism is strongly linked to organized crimes such as money laundering, drug and human trafficking as well as illegal proliferation of nuclear, biological and chemical materials. All these are linked to the effectual participation in serious crimes including assault, extortion, kidnapping, hostage taking and murder.

Moreover, terrorism perniciously impacts socio-economic development of states, kills friendly international relations among States, and negatively impacts the efforts of cooperation and peaceful co-existence among States, such as the cooperation for trade, growth and development. Terrorism also threatens the security of States as well as territorial integrity thus grossly violating the principles and values of the UN; this is a threat to the peace and security of the international community. This means that acts of terrorism must be suppressed by all means as an indispensable measure for the upholding of peace and security worldwide [2] .

Both international and states’ human rights laws highlight that, in exclusive situations, States wield positive power to take precautionary operational measures to protect individuals or groups whose lives are known (or suspected) to be in danger due to unlawful acts of other individuals or groups-these of course includes terrorists. Significantly, the state is obligated to ensure that personal security of its citizens, especially where a threat exists or is suspected to exist [3] . In order to fulfill their security mandate and with respect for human rights and the rule of law, States have a reserved right and responsibility of taking effective counter-terrorism measures, to stop and avert future attacks from terrorists and to bring to book those that are responsible for these acts. However, measures taken by States to counter terrorism present serious challenges to the fostering and protection of human rights. As the former UN secretary general stated,

“We should all be clear that there is no trade-off between effective action against terrorism and the protection of human rights On the contrary, I believe that, in the long term, we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism.” [4]

Thus, the responsibility of States’ to protect individuals and groups within their jurisdiction together with all other undertaken in combating terrorism must be in tune with their obligations as stipulated in the international law, notably international human rights law, humanitarian law and refugee law.

In retrospect, in the same way terrorism negatively affects human rights, counter terrorism measures adopted by States too affect human rights. Since terrorism perniciously impacts on a number of fundamental human rights, it is the responsibility of States to create effective counter-terrorism strategies. These are the strategies that serve the dual purpose of protecting human rights and the reinforcement of States’ objectives of protecting individuals contained in their jurisdiction. After the 9/11 attacks in 2001, the US intensified its attack on Osama and his allies [5] . The UN Security Council on its part moved swiftly to strengthen the legal structure for global cooperation and unified measures against threats of terrorism. The framework touched on key areas such as preventing the financing of terrorism, securing weapons of mass destruction from terrorists and the enhancement of sharing cross-border information by law enforcement agencies [6] , together with the establishment of a surveillance body, referred to as, the ‘Counter-Terrorism Committee’. The later was mandated with the supervision of the implementation of the laid down measures. In addition to the UN’s measure, various regional counter-terrorism approaches have also been developed by organisations such as the African Union, the EU, the League of Arab States, and the Organization for Security and Co-operation in Europe among other [7] .

State obligations and human rights when countering terrorism

The international community has risen up to adopt measures that uphold human rights and the rule of law for all as the primary foundation of the war on terror. This has been outlined in the United Nations General Assembly resolution 60/288 that outlines the UN’s Global Counter-Terrorism Strategy. Members resolved to take counter terrorism that comply with their respective obligations under international law- human rights law, international humanitarian law and refugee law. The United Nations Global Counter-Terrorism Strategy asserts the relationship between human rights and international security; this puts the adherence to human rights laws and the rule of law and at the center of the international counter-terrorism approaches. With this strategy, Member States committed themselves to respect human rights and to follow the rule of law in their fight against terrorism [8] .

The United Nations General Assembly has adopted a number of resolutions with regard to terrorism since December 1972. This has been aimed at the measures used by States and the UN in trying to eliminate global terrorism as well as those aimed at linking terrorism with human rights. The General Assembly has stressed that the measures taken by Member States must comply with their obligations under international law. [9]

Under the UN Charter, the Security Council has the chief responsibility of ensuring that peace and security is maintained internationally, this includes measures that highlight terrorism as a threat to global peace and security. Since its creation, the Security Council has undertaken several counter-terrorism actions against States; this has been in the form of sanctions [10] . States considered to be linked in one way or another to certain groups of terrorism such as the Taliban and Al-Qaida. In addition, the UN Security Council has established a number of committees to oversee the implementation of these sanctions. Many other efforts to ensure that human rights are respected, for example in resolution 1373 (2001), Member States are obliged to take measures to stop acts of terrorism, to prosecute those involved and to promote international cooperation as well as signing up to UN’s counter-terrorism mechanisms. Member States are also expected to report their progress regularly to the Counter-Terrorism Committee. In addition to the general requirements by the UN Charter for States to act responsibly and to respect human rights at all times, article 17 demands that any person held in custody on charges of terrorism must receive “fair treatment”, guaranteeing their enjoyment of all rights and freedoms as stipulated in the international human rights law. Furthermore, article 21 an all-inclusive provision clearly requires that the Convention does not affect States’ rights, obligations and responsibilities.

Conclusion

The idea that there is no clear relationship between global war on terror in the form of counter-terrorism strategies and human rights is unfortunate. International humanitarian law and the authority of surveillance organizations recognize the important frameworks that place human rights in the context of terrorism and counter-terrorism without interfering with the nature of these rights. In addition, counter-terrorism measures taken by States should prevent them from falling into snare of infringing fundamental rights and democratic privileges-the very rights that terrorists flout and wish to wipe out. Currently, various counter-terrorism measures have been implemented, notably since the heinous 9/11 attacks. However, such measures are not in full harmony with the international humanitarian law. This paper has outlined some of the human rights laws that are supposed to be followed by UN member states in the fight against terrorism. This is in the light of increasing concern by NGOs, regional human rights organizations and organizations that represent families of victims of gross violations.