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The issue of terrorism
The issue of terrorism is one of the main concerns in the recent world. September 11/2001 attack in the twin tower of USA, bombing in Madrid and London bombing has raised a serious concern in this matter. Different government all over the world is trying to tackle this problem enacting different stringent laws and taking other steps. Indian society is attacked by this terrorism warm from the very beginning and immediate after independence, for example Kashmir, Mumbai bomb blasts, North East states, Punjab in 1980s and recently Mumbai attack.
There are different issues which come with the question of terrorism. The first question related to the definition of terrorism. In the international level there was a long effort to find a universally accepted definition of terrorism. The reason is that one person or states terrorist is freedom fighter to another state or individual. It has also faced opposition because most of this definition talks about the action of the non-state actors and did not address the violence and torture done by the government agencies. International Convention for the Suppression of the Financing of Terrorism adopted in 1999 by the General Assembly has given a definition of terrorism which is the first in an international treaty. This says:
“Any other act intended to cause death and serious bodily injury to a civilian and any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government and international organization to do and abstain from doing any act.”
There is two fold meaning in the context of terrorism and human right. In the first meaning the state is obliged to make regulation to prevent and combat terrorism on the ground to protect the individual right to life, liberty and security. The second thing is in the process of combating and preventing terrorism state should take care of the human right. For the infringement of the latter the sate will be responsible under the international human right law and treaties in which it is a party. The European Court of Human Right and other international Human Right instrument has recognized that state has not only negative obligation to refrain from interfering into the rights of the people within its jurisdiction but also positive obligation to protect the people from the infringement of their human right by non state actors.
In this paper varies international instrument which talks about the protection of human right while combating terrorism will be discussed. Then subsequently some Indian anti -terrorism laws will be reviewed from the prospective of human right protection and the role of judiciary in the protection of human right while battling against terrorism.
International Institutions In The Matter Of Terrorism And Human Right Issue Related To It:
There are 13 international convention related to terrorism has been adopted under the supervision of United Nation. After the attack of 11 September 2001 the international instruments, international political picture have changed a lot with relation to terrorism. United States of America declared “War on Terror”.
United Nations General Assembly Resolutions:
The General Assembly resolutions related to terrorism are mainly G.A. Res.56/160, G.A. Res. 58/187, G.A. Res. 59/191, G.A. Res. 59/195, and G.A. Res. 57/219. All these resolution mainly focused on both non derogability of human rights and states responsibility to comply with it. The G.A. Res.56/160 says that the state should "take all necessary and effective measures, in accordance with relevant provisions of international law, including international human rights standards, to prevent, combat and eliminate terrorism. . . and. . . strengthen, where appropriate, their legislation to combat terrorism." G.A. Res. 57/219 says that "States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights." G.A. Res. 58/187 argues that some human rights are "non-derogable" and emphasized that States must ensure that any measure taken to fight against terrorism take care of their obligations under international law, in particular international human rights, refugee and humanitarian law. The remaining two resolutions also follow the same principle of resolution 57/219.
Within this five resolutions two resolutions ( G.A. Res. 59/191 and G.A. Res. 57/219 ) passed without vote and G.A. Res. 56/160, called "Human Rights and Terrorism," passed collectively, 102 votes to none, sixty-nine states did not vote. In the voting pattern it is clear those western countries and as well as many developing countries supported these resolutions on terror and human rights.
United Nations Security Council Resolutions:
There is some Security Council resolution which talks about human right while combating terrorism. Security Council has articulated its deep concern over the terrorist activity world wide which endangered the lives, and well being of individuals worldwide as well as peace and security of all countries. The Security Council slams all kinds of terrorist activity irrespective of its motive wherever and by whosoever it committed. It will treat them as criminal and unjustified especially which can disrupt international peace and security. The council argued that all the states should cooperate together to stop and pin down terrorist act to protect their nationals and other persons against the terrorist attack and bring to justice the architect of such acts.
The resolutions which directly talks about war against terror and human rights are 1456, 1535, and 1624, are non-Chapter VII resolutions, meaning they are not immediately binding upon U.N. Member States. On the other hand resolutions 1373 and 1566, both binding Chapter VII resolutions. Both this binding resolutions give reminder to the state that while dealing with security measures they should look after the human right matter also. The first resolution which talks about terrorism and human right is 1456 adopted in 2003. In two fold it wanted to save the human right while combating terrorism. First, it talks about the duty of the nation to combat terrorism "in accordance with international law, in particular international human rights, refugee, and humanitarian law" and secondly it stressed on the obligation to give terrorists due process rights and states that States had an obligation under the "principle to extradite or prosecute."
The resolution no 1535 also talks in the same line and state that "States. . . must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law." The resolution no. 1566 talks about the terrorism and human right with the idea of "acts of terrorism seriously impair the enjoyment of human rights."
Resolution no 1373 came shortly after the attack of the 11 September attack. This resolution talks about the human right in connection with refugees and measure taken to combat terrorism. It said that the state should "take appropriate measures in conformity with. . . international standards of human rights. . ." to check the people who ask for asylum to ensure that terrorist can not cross the border without scrutinization. This resolution made legal obligation to the sates to freeze the fund for terrorist activity and non usage of one states land for terrorist activity. It also talks about the cooperation of the states to save the world from terrorist activity. The council also made a committee of the Security Council, consisting all the council members, known as the Counter Terrorism Committee (CTC). This committee has been established to look into the implementation of the resolutions.
Human Rights Committee On Terrorism:
This international institution was quite worried about the state of human right in the era of war on terror. So it has given its opinion different time advocating human right issue. Human rights committee hold that legislation enacted following the Security Council resolution no. 1373 must be in the confirmatory with the rights mentioned under ICCPR. Their concern was that the wider definition of terrorist and member of the terrorist group under the criminal code of different state will have bad effect on the rights under ICCPR. The states were requested to take counter terrorism measure in connection with resolution 1373(2001) or other wise with full conformity with ICCPR.
On 22nd November, 2001 the committee adopted as special resolution no. (A/57/44) which says that in any circumstances torture is not permissible. It is done seeing the after 9/ 11 scenario. The are some non derogable right which can not be taken away in any circumstances according to the Human right committee. That means all this rights is guaranteed to any person including a person who has been caught for terrorist activity. Some of these rights are the rights protected by the international humanitarian law, prohibition on arbitrary deprivation of liberty, right of all persons deprived of their liberty to be treated with respect for the inherent dignity, right to fair trial including the presumption of innocence, the obligation to provide remedies for any violation of the provisions of the ICCPR. The committee has also pointed out that provision related to procedural safe gourds may never be made subject to some measure which will restrain the protection of this non - derogable rights.
Indian Scenario And The States Action To Combat Terrorism:
There are different laws enacted by the government of India to fight with the terrorism issue. For example The Armed Forces( Assam and Manipur) Special Powers Act, 1958, The Terrorist and Disruptive Activities ( Prevention) Act, 1987, The Prevention of Terrorism Act, 2002, Unlawful Activities (Prevention) Amendment Act, 2008. There are document and proof in the hand of the human right organizations that there has been human right violation in parts of India where terrorist activities are persisting. Like Kashmir, Andhra Pradesh, North East states. International Organization like Amnesty International, Asia Watch have also observed this violation.
There are some glimpse of the acts provisions of The Armed Forces( Assam and Manipur) Special Powers Act, 1958. This act has given power to Arrest without warrant any person who has committed a cognigible offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognisible offence and may use such force as may be necessary to effect the arrest.
In one of the interaction between the civil rights activists and armed force officers organized by National Human Rights Commission the then army chief Shankar RoyChoudhury said that this act need to relook.
The Terrorist And Disruptive Activities ( Prevention) Act, 1987:
This act was enacted seeing the riot situation of the in 1987 and only for two years but it remained after that also. This act made some exception to admit the evidence given to the police. This makes a scope for the law enforcing authority to torture and get confession in any way they want to. Section 15 of the act says that notwithstanding anything contained in the Indian Penal code or in the Indian Evidence Act, 1872, a confession made by a person to a police officer not lower than the rank of superintendent of police is admissible in the trial of such person for such an offence.
In the normal criminal law the accused is presumed innocent until the guilt is proved but in this act , the designated Court shall presume , unless the opposite is proved , that the accused had committed such offence. There was evidence of misuse of power under this act but it was re- enacted in the name of POTA in 2002.
The Prevention Of Terrorism Act (2002):
The reason of enacting this act shows that there is increase in terrorist activity through out the world and India is also suffering and the existing criminal justice system is not designed to deal with this type of heinous crimes with which the proposed law deals with.Under this act a person committed an offence if he belongs or professes to belong a terrorist organization. Raising money for terrorist activity is also an offence. In some cases like privacy and presumption of innocence this act is more stringent then the TADA.
Unlawful Activities (Prevention) Amendment Act, 2008:
In the objective of the act was said that as the POTA was complained to be misused it was repealed in 2004. But India is in the first raw in the war against terror and it need to take some steps to combat terror. So this act was enacted. This amendment mentioned 10 resolution passed by security council 1999 to 2007 to justify this amendment. It gave special emphasis on the 1373 resolution of the Security Council.
Indian Judiciary In The Matter Of Terrorism And Human Right:
The Supreme Court of India has acknowledged that the War on Terror must be fought in a manner that upholds human rights, in a passage that is consistent with the principles embodied in Security Council Resolutions 1535 and 1566 and G.A. Resolution 57/219, in the case of People's Union for Civil Liberties & Anor v Union of India. Declaring that terrorism itself breeds the grossest violations of human rights, the Court nevertheless emphasized:
“The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism. Here comes the role of law and court's responsibility. If human rights are violated in the process of combating terrorism, it will be self-defeating. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. The lack of hope for justice provides breeding grounds for terrorism. [. . .] In all cases, the fight against terrorism must be respectful to the human rights.”
The opinion of the Supreme Court of India evinces the government's affirmation of the desperate need to protect human rights even while bringing to justice those individuals who would disregard such rights.
In the case of KARTAR SINGH Vs. STATE OF PUNJAB some anti terrorist acts were challenged on the ground that it is against the humanitarian law and human rights. It was counter argued that terrorists are infringing the right of the innocent people by killing then in cruel way. Court upheld the validity of anti- terrorist laws describing them as the need of the State. Such laws were held to be the need of the hour in light of the social situation prevalent in the country and thus held valid by a five judge bench headed by J. Pandian in the case. They said that terrorism and disruptive activities are a worldwide phenomenon and India is not an exception. If terrorism is not fought then it will disrupt the security of the nation, personal liberty and right which include right to live human dignity of normal citizen of India. The existing criminal laws of the country is not adequate to deal with this kind of extra ordinary situation. The procedure given in Article 21 is that the procedure must be "right, just and fair" and not arbitrary, fanciful or oppressive and this confirm the principle of human right. Court also said that
“We are undoubtedly committed to uphold human rights even as a part of long standing heritage and as enshrined in our constitutional law. We feel that this perspective needs to be kept in view by every law enforcing authority because the recognition of the inherent dignity and of the equal and inalienable rights of the citizens is the foundation of freedom, justice and peace in the world. If the human rights are outraged, then the court should set its face against such violation of human rights by exercising its majestic judicial authority.”
This Court in Sunil Batra v. Delhi Administration (1) and Sunil Batra v. Delhi Administration(II) held that Article 21 guarantees protection against torture and assault by the State while a person is in custody. It is a legitimate right of the police to arrest a suspect on receiving some credible information or material, but the arrest must be in accordance with law and the interrogation should not be accompanied with torture or use of third degree methods.
In the parliament attack case of 2001 where 6 policemen and one civilian died and India considered it as an attack to the country the main accused Mohd. Azzal Guru was given death sentence. He was given sentence under POTA.
In the case of American centre attack of 2002 where five policemen were killed the High Court of Calcutta has confirmed the death sentence given by the lower court. A division bench comprising justices Asim Banerjee and Kalidas Mukherjee have given the order. Ansari, Nasir and five others had appealed to the high court against the death sentence given to them by a city sessions court. Ansari and Nasir's death sentence was upheld while the punishment of Hasrat Alam, Sakib Akhtar and Bobby was reduced to life sentence. The remaining two Rehan Alam alias Monty and Adil Hossain were freed due to lack of evidence.
Even though there is no consistency in the definition of terrorism and the international community has not reached in a decision to accept an united definition the states are obliged to take care of human rights in the counter terrorism measure under the customary rule. There is no way to reject that even the perpetrator of the terrorist activity has human right being a human.
In India there were many special laws dealing with terrorism but simultaneously there are so many terrorist attacks in India including recent Mumbai attack and Pune blast. Now we need to look at the root of this terrorism. Why this young people are involving in such heinous crime?? Steps should be taken to identify that and solve those problems. Bu that can be a long process so in the mean time human right should be protected in the process of combating terrorism. Even though Indian is not a party to convention against torture, it is a party to ICCPR, ICESCR and other international instrument and which makes an obligation on India to fulfill with human right obligation while treating terrorism. Even Indian constitution has given safe guard for human right under article. 21.
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Eicke Tim; “Terrorism and Human Rights”; 4 European Journal of Migration and Law 449; 2002
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Isanga Joseph; “COUNTER-TERRORISM AND HUMAN RIGHTS: THE EMERGENCE OF A RULE OF CUSTOMARY INT'L LAW FROM U.N. RESOLUTIONS”; 37 Denver Journal of International Law and Policy 233; 2009; Spring.
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Nair Ravi; The Unlawful Activities( prevention) Amendment Act 2008: Repeating Past Mistakes; Economic and political Weekly;; vol XLIV No.4; 24-30 January. 2009
Nanda Ved P; INTRODUCTORY ESSAY: INTERNATIONAL LAW IMPLICATIONS OF THE UNITED STATES' "WAR ON TERROR"; 37 Denver Journal of International Law and Policy 513; 2009
Sitaraman Ganesh; COUNTERINSURGENCY, THE WAR ON TERROR, AND THE LAWS OF WAR; 95 Virginia Law Review 1745; November; 2009
Shah Sikander A.; HUMAN RIGHTS AND NON-DISCRIMINATION IN THE 'WAR ON TERROR.' BY DANIEL; 103 American Journal of International Law 635; July; 2009;
Sharma Mukul ; How Not to Fight Terrorism; Economic and political Weekly; Vol-XLIV No.5; Jan 31- Feb 6, 2009
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Steiner Henry J., Alston Philip, Goodman Ryan; International Human Rights in Context; 3rd ed; 2008; Oxford University Press; New Delhi.
Swarup Aditya; TERRORISM AND THE RULE OF LAW-A Case Comment on Kartar Singhv.State of Punjab, (1994) 4 SCC 569 available at papers.ssrn.com/sol3/.../SSRN_ID1013043_code758306.pdf?...1
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Kannabiran K. G. ; Post-mortem of Afzal Guru Case; PUCL Bulletin, January 2007 www.pucl.org/Topics/Law/2007/afzalguru.html -
List Of Cases:
1. Kartar Singh v. State of Punjab, (1994) 3 SCC 569
2. People's Union for Civil Liberties & Anor v Union of India.,  1 L.R.I. 1
3. Sunil Batra v. Delhi Administration, (1978) 4 SCC 409
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