TERRORISM AND HUMAN RIGHTS: USE OF FORCE AS A RESPONSE TO TERRORISM
Table of Contents
Nature of Human Rights:-
Human Rights are the universal values and guarantees that protect individuals and the groups against actions of the state that interfere with the fundamental freedoms and basic principles holding human dignity. Therefore, it is to be stated herein that human rights are universal in nature, as they inherently belong to the human beings and are independent and indivisible in nature.
The concept of human rights is based upon a basic principle that, all the human beings are entitled to enjoy their human rights without any sort of discrimination. The grant of human rights is based upon the following two principles:-
- Firstly that, they are being characterized by being- Inalienable and equally applicable to all, and,
- Secondly, the duty to maintain and to make available the very basic rights to every person by virtue their humanity alone.
The idea of bringing the basic human rights to the forefront was just to put a halt to the arbitrary usage of the state power. The human rights can be understood as those rights which can have a bearing on the relationship between the state and the individuals. As far as the bearing upon the relation between the state and individuals is concerned, the basic human rights of the individuals is required to be safeguarded against the arbitrary actions of the state and, on the other hand, the state should strive to achieve a parity among the relation between the individuals themselves, by safeguarding the individual rights from being infringed by other individual.
In today’s scenario, where, protection and promotion of the basic human rights of the people is observed to be one of the duties of the state, it is a step which infact would ensure such safeguard and invite the imposition of a sanction, where any action to safeguard the basic rights is not undertaken.
International Human Rights Law:-
Human rights law deals with every kind of human rights and is connected with human beings and protects their rights, whether he or she is a criminal or a terrorist or any other normal human being. Many states have agreed to take measures to combat terrorism in accordance with their obligations under the international law, international human rights law or humanitarian law, considering that combating terrorism should not come in conflict with the protection of human rights of the people. It is known that there are some non-negotiable rights which shall be protected at any cost, for instance- right to be protected against torture and other inhuman behavior, right to life etc.
The Counter Terrorism Committee (CTC) was established in 2001 and by virtue of the Security Council Resolution of 2003 along with other resolutions, it was laid down that all steps in combating terrorism should be taken by all states in accordance with the obligations of these states under the regime of international law. The states are obliged to take appropriate measures before granting a refugee status to a person for the purpose of ensuring that such individual has not participated in a terrorist activity. This action should be in conformity with relevant provisions of national and international law, including international standards of human rights. Then the Counter-Terrorism Committee Executive Directorate (CTED) was developed by the United Nations Security Council in the year 2004 to work with the United Nations High Commissioner for Human Rights. The Directorate, working along with the High Commissioner of human rights was tasked to take appropriate measures for the protection of human rights in combating terrorism.
The CTED is mandated to:-
- Provide advice to the Committee, including for its ongoing dialogue with states on their implementation of resolution, 2001;
- Advising the committee as to how appropriate measures are to be taken to implement the provisions of resolution, 2005 and observing that such measures are complying with the obligations under the international law, and;
- Liaise with the office of the High Commissioner for Human Rights and as appropriate, with other human rights organization.
The abovementioned guidelines shall be adopted in order to prevent the violation of the human rights and to ensure that the universally recognized human rights standards are followed. This is because of the fact that, apart from the terrorist activities, even the counter terrorism policies adopted may restrict the human rights of the individuals.
At international level, there are two different schools of thought regarding the strategy employed by them to counter terrorism. One of them being, the British School according to which performance of terrorist acts is equivalent to a crime and therefore it encourages the adoption of measures to control it through local enforcement agencies, on the other hand, there is American School, according to which terrorist acts are equivalent to the war situations and allows the use of military forces to combat.
Terrorism:-
In order to understand the relationship between Terrorism and Human Rights, it is important for us to understand the meaning of “Terrorism”. As defined under Section 1 of the British Terrorism Act, 2000 as “any activity which is defined to influence the local policies of a particular state government, anywhere in the world, including by, for example, damage to the property”.
Terrorism is generally understood as an act, which creates a feeling of terror among the civilians and civilian populations. Although the term terrorism has not been defined specifically anywhere in any legislation, it has been made understandable through the usage of different words in a number of International Treaties and other international and regional instruments. These treaties and instruments have included a variety of acts that would fall under the ambit of Terrorism. For example- the General Assembly’s Declarations on Measures to Eliminate International Terrorism, 1994, has defined the term “Terrorism” as- “a state where the criminal acts are intended to provoke or incite terror in the minds of the people”. The United Nations General Assembly is currently working towards the adoption of a comprehensive understanding of “Terrorism” which has been defined under its draft Article 2, according to which “Terrorism” is defined as follows:-
“Unlawfully and intentionally causing, attempting or threatening to cause:
- Death or serious bodily injury to any person,
- Serious damage to public and private property, including the place of public usage as that provided by the local authorities or the government, or
- To cause serious damage to facilities or to property resulting in or likely or likely to result in an economic loss or compelling a government to restrain from adopting a particular policy or to carry out a particular act”.
Now that we have understood the meaning of the term “Terrorism”, it is now pertinent for us to understand the term “Terrorist Act”. A “Terrorist Act” is said to have been committed when:-
- The actions of the terrorist create a sense of fear and insecurity in the minds of the people, or in the minds of any particular section of society, where there is excessive usage of bombs, dynamites, or any other such lethal instrument or firearms of such sort as to cause death or are likely to cause the death of the people, or to cause damage or destruction on a large scale or to prevent the public servants from discharging their lawful duties, or;
- The commission of the scheduled offense which has an effect of creating an adverse impact upon the harmony and peace of different sections of the society, or;
- Commits an act of gang rape, child molestation, or any other offense.
The European Union sees the “Terrorism Acts” as those which aim at:-
- Seriously intimidating a population,
- Unduly compelling a government or an international organization to do or refrain from doing something,
- Seriously destabilizing or destroying the fundamental political, constitutional, economic, or social structures of a country or an international organization.
These objectives can be achieved through a wide range of illegal acts. They range from attack to individual life to cutting off vital services essential for the survival of the society and other miscellaneous threats like- hijacking, kidnapping, and other forms of criminal activity. According to the definition given by the European Union, “Terrorism” is not an ideology or a movement but in fact, it’s a tactic adopted for the accomplishment of certain goals.
In the last few years, a number of conventions have been adopted to suppress the acts of terrorists, which have laid down many obligations upon the states to take appropriate measures in this regard and so to provide legal assistance. Understanding the relationship between human rights law and international criminal law helps in understanding the enforcement of human rights and that a number of states have been prosecuted for engaging in acts leading to human rights violations.
Asking a question that-“Does terrorism really work”, may seem a purely rhetorical question in the light of the previous findings, however, that is not so. Leaving aside the emotional and psychological impacts of terrorism, it is necessary to establish whether and to what extent the terrorists have managed to influence the state policies or in other words- have terrorists been successful in coercing the states to act in the desired behavior pattern? To begin with, it is important to focus upon the goals that the terrorist have pursued and what strategies do they implement to achieve such goals. It is an important finding that, terrorists are usually considered to be too weak to impose their will directly and that they endeavor to achieve their goals by changing the target audience’s perceptions of their determination and ability to impose costs upon the audience. Following mentioned are the five goals pursued through the terrorist activity having enduring importance:-
- Regime Change;
- Territorial Change;
- Policy Change;
- Status Quo Maintenance;
- Maintaining Social Control
And, the strategies through which these goals and objectives are accomplished:-
- Attrition,
- Intimidation,
- Provocation,
- Spoiling, and,
After carrying out necessary investigation as to how various strategies have been used and their weaknesses and strengths, the authors, in this area of research concluded that a crucial element in the success of various terror campaigns is “Information”. Terrorists have to be well informed in advance as to how to change the perceptions of the people how to communicate their will precisely. Similarly, the success of counterstrategies also depends on information. The second conclusion of the study touched upon the regime type being targeted by terrorists. It was herein concluded that democracy seems to be more susceptible to various terrorist strategies than other regime types.
One of the great thinkers in this field of study, named “Robert Pape” argued that the attacker or the one who causes great destruction to the property and other facilities made available by the local authorities or the government, is the weaker actor and the target is stronger. The strength of terrorist commitment to cause destruction is underlined by their willingness to sacrifice their own lives in the process. Furthermore selecting democracy as a target increases the chance of the terrorists experiencing a restrained response as democracies use violence more discriminately. Such moderately punished or unpunished acts encourage the repetition of such acts. However, a specification in this regard must be made that- terrorists could be successful in coercing the states only if they pursue the fulfillment of moderate goals and do not try to force states to abandon their vital interests. It has been found during a study that the terrorist groups are generally successful in accomplishing their objectives when they attack military and political targets and targeting less on the civilian population. The reason for such an outcome is that the states tend to interpret assaults on its civilian population as indications of the terrorist’s desire to destroy the whole society along with the societal values. Therefore it has been concluded that terrorism is a flawed method of coercion because, regardless of the actual policy objectives of the terrorists, the attacks on the society and its values are perceived by the state as an existential threat.
The purpose of this study has been to review the history of terrorism, its present, and its future state. It is an important point to note that in the last 120-130 years, terrorism has gone through four distinct stages and that presently we are experiencing the fourth stage. Al-Qaeda, one of the most famous terrorist organizations has evolved a lot in the last few years and has evolved to an extent that it survived all attempts made to destroy it by military means and thus has adapted to the new situation. Moreover, it has been able to extend its influence to the Muslim communities existing in the European countries. Al-Qaeda does not exist as a terror outfit for a very long time, but it has existed in the form of a religious group, representing a particular community. If it was existing as a traditional terrorist group, it would be reasonable to forecast its demise within few years. Al Qaeda has transitioned into second, third, and even a fourth generation, and that it is operating with a fairly coherent strategy articulating its goals quite comprehensively. It’s still experiences very popular support which is quite visible from the insurgencies being carried out in Iraq and Afghanistan, where military repression has achieved very little over it. Concluding in this regard, we can say that the situation is quite worrisome since this terror outfit seems beyond all the traditional causes of the demise of such organizations and has achieved unprecedented influence, reach, and means. However, despite this fact, it would not be wrong to expect a ray of hope in this surrounding darkness.
Prescription by law:-
According to this concept, while limiting the exercise and enjoyment of human rights by the regional or domestic human rights instruments, the parameters of such limitations should be made clear, so that every individual can have recourse to an appropriate legal remedy and that the people are able to regulate their conduct accordingly. In accordance with this principle, the right to due process of law is regarded as one of the most important rights of the people.
It is further important to note that, the permissible and legitimate restrictions and limitations on the enjoyment of fundamental human rights will vary according to the need of the time. Usually, the main grounds for imposition of such limitations and restrictions are- national security, public safety, public order, health, and human rights and freedoms of other people living in the society.
The principles of “necessity” and “proportionality” are of fundamental nature with respect to the limitations on human rights. These principles are dependent upon the pressing nature of “need”. The human rights available to the people are to be limited only in the case of necessity or in other words, the limitations on the human rights are to be proportional to necessity. In order to understand this concept and how the aforementioned principles are applied in the real scenario, we take an example of “Freedom to express”. Freedom to express is a recognized human right and that it is required to be utilized by the people in a good sense, but if such right is being used by the people for the purpose of incitement and promotion of terrorism, then the exercise of such right can be restricted by the authorities which too shall be done in accordance with law and to achieve a legitimate purpose.
“Derogation” of human rights is a big question that revolves around in the minds of many. By Derogation, we mean- “the rights which can be annulled or canceled”. No doubt that certain treaties governed by international law provide for the derogation of human rights, but it must be remembered that such derogation is subject to restrictions and limitations. In emergency situations or in emergency-like situations, such derogation is made permissible under international law. This principle has been laid down in “Article 4 of International Covenant on Civil and Political Rights”. Under Article 4(2) of ICCPR, certain human rights have been brought under the umbrella of non-derogable human rights, which means that even in emergency or in emergency-like situations, such human rights cannot be derogated by the authorities. Among such rights are- the right to life; freedom from torture or inhuman behavior or degrading treatment; prohibition against slavery and servitude; freedom from being imprisoned for failure to fulfill a contract; freedom from retrospective penalties; right to be recognized as a person before law and freedom of thought, conscience, and religion.
It is alleged that derogation of human rights is a rational response and the states can use it while facing serious threats. Moreover, even the power of a state to derogate certain human rights within the ambit of Article 4 of ICCPR is not unlimited, but there is a permissible extent for such exercise of derogation. Therefore, it is to state that the activity of derogating human rights should be temporary in nature and that the main aim of the state should be to restore a situation of normalcy as soon as possible.
Conclusion
Concluding this article, it is to be stated herein that, some differences between terrorist activities and counter-terrorist activities should be maintained. It should not be the case that efforts made to prevent the commission of wrongful acts become equally wrongful as that the act itself. The authorities should keep in mind that the basic human rights of the citizens are not violated irrespective of the fact that terrorists fall under the term “people”. The rights cannot be taken away except with the authority of law.
