AMITY LAW SCHOOL

LLM 2019-20

HUMAN RIGHTS, TERRORISM AND COUNTER

TERRORISM

Submitted to- Submitted by-

Dr. GOVIND SINGH RAJPAL Iram Peerzada

INTRODUCTION

The human cost of terrorism has been felt in virtually every corner of the globe. Terrorism
clearly has a very real and direct impact on human rights, with devastating consequences for the
enjoyment of the right to life, liberty and physical integrity of victims. In addition to these
individual costs, terrorism can destabilize Governments, undermine civil society, jeopardize
peace and security, and threaten social and economic development. All of these also have a real
impact on the enjoyment of human rights.

In recent years, however, the measures adopted by States to counter terrorism have themselves
often posed serious challenges to human rights and the rule of law. Some States have engaged in
torture and other ill-treatment to counter terrorism, while the legal and practical safeguards
available to prevent torture, such as regular and independent monitoring of detention centres,
have often been disregarded. Other States have returned persons suspected of engaging in
terrorist activities to countries where they face a real risk of torture or other serious human rights
abuse, thereby violating the international legal obligation of non-refoulement. The independence
of the judiciary has been undermined, in some places, while the use of exceptional courts to try
civilians has had an impact on the effectiveness of regular court systems. Repressive measures
have been used to stifle the voices of human rights defenders, journalists, minorities, indigenous
groups and civil society. Resources normally allocated to social programmes and development
assistance have been diverted to the security sector, affecting the economic, social and cultural
rights of many.

Respect for human rights and the rule of law must be the bedrock of the global fight against
terrorism. This requires the development of national counter-terrorism strategies that seek to
prevent acts of terrorism, prosecute those responsible for such criminal acts, and promote and
protect human rights and the rule of law.

This article has been prepared with the aim of strengthen understanding of the complex and
multifaceted relationship between human rights and terrorism. It identifies some of the critical
human rights issues raised in the context of terrorism and highlights the relevant human rights
principles and standards which must be respected at all times and in particular in the context of
counter-terrorism.
HUMAN RIGHTS

Human rights are universal values and legal guarantees that protect individuals and groups
against actions and omissions primarily by State agents that interfere with fundamental
freedoms, entitlements and human dignity. The full spectrum of human rights involves respect
for, and protection and fulfilment of, civil, cultural, economic, political and social rights, as well
as the right to development. Human rights are universal—in other words, they belong inherently
to all human beings—and are interdependent and indivisible.1

International human rights law is reflected in a number of core international human rights treaties
and in customary international law. These treaties include in particular:

 International Covenant on Economic, Social and Cultural Rights

 International Covenant on Civil and Political Rights and its two Optional Protocols.

Other core universal human rights treaties are the:

 International Convention on the Elimination of All Forms of Racial Discrimination

 Convention on the Elimination of All Forms of Discrimination against Women and its
Optional Protocol
 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment and its Optional Protocol
 Convention on the Rights of the Child and its two Optional Protocols
 International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families.
 International Convention for the Protection of All Persons from Enforced Disappearance,
 Convention on the Rights of Persons with Disabilities and its Optional Protocol,

which were all adopted in December 2006. There is a growing body of subject-specific treaties
and protocols as well as various regional treaties on the protection of human rights and
fundamental freedoms.

1
See, for example, the Charter of the United Nations, Art. 55 (c), the Universal Declaration of Human Rights, Art. 2,
and the Vienna Declaration and Plan of Action.
Human rights law also places a responsibility on States to provide effective remedies in the event
of violations.2 Those human rights that are part of customary international law are applicable to
all States.3

In the case of human rights treaties, those States that are party to a particular treaty have
obligations under that treaty. There are various mechanisms for enforcing these obligations,
including the evaluation by treaty-monitoring bodies of a State’s compliance with certain treaties
and the ability of individuals to complain about the violation of their rights to international
bodies.

TERRORISM

Terrorism is commonly understood to refer to acts of violence that target civilians in the pursuit
of political or ideological aims. In legal terms, although the international community has yet to
adopt a comprehensive definition of terrorism, existing declarations, resolutions and universal
“sectoral” treaties relating to specific aspects of it define certain acts and core elements. In 1994,
the General Assembly’s Declaration on Measures to Eliminate International Terrorism, set out in
its resolution 49/60, stated that terrorism includes “criminal acts intended or calculated to
provoke a state of terror in the general public, a group of persons or particular persons for
political purposes” and that such acts “are in any circumstances unjustifiable, whatever the
considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature
that may be invoked to justify them.”

The UN General Assembly is currently working towards the adoption of a comprehensive

convention against terrorism, which would complement the existing sectoral anti-terrorism
conventions. Its draft article 2 contains a definition of terrorism which includes “unlawfully and
intentionally” causing, attempting or threatening to cause:

a) death or serious bodily injury to any person; or

2
See Human Rights Committee, general comment N° 31 (2004) on the nature of the general legal obligation
imposed on States parties to the Covenant.
3
Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment of 27 June 1986, I.C.J. Reports 1986, paras. 172–201.
 b) serious damage to public or private property, including a place of public use, a State or
government facility, a public transportation system, an infrastructure facility or the
environment; or
c) damage to property, places, facilities, or systems…, resulting or likely to result in major
economic loss, when the purpose of the conduct, by its nature or context, is to intimidate
a population, or to compel a Government or an international organization to do or abstain
from doing any act.

The draft article further defines as an offence participating as an accomplice, organizing or

directing others, or contributing to the commission of such offences by a group of persons acting
with a common purpose.

THE IMPACT OF TERRORISM ON HUMAN RIGHTS

Terrorism aims at the very destruction of human rights, democracy and the rule of law. It attacks
the values that lie at the heart of the Charter of the United Nations and other international
instruments: respect for human rights; the rule of law; rules governing armed conflict and the
protection of civilians; tolerance among peoples and nations; and the peaceful resolution of
conflict.

Terrorism has a direct impact on the enjoyment of a number of human rights, in particular the
rights to life, liberty and physical integrity. Terrorist acts can destabilize Governments,
undermine civil society, jeopardize peace and security, threaten social and economic
development, and may especially negatively affect certain groups. All of these have a direct
impact on the enjoyment of fundamental human rights.

The destructive impact of terrorism on human rights and security has been recognized at the
highest level of the United Nations, notably by the Security Council, the General Assembly, the
former Commission on Human Rights and the new Human Rights Council. Specifically,
Member States have set out that terrorism:

 Threatens the dignity and security of human beings everywhere, endangers or takes
innocent lives, creates an environment that destroys the freedom from fear of the people,
jeopardizes fundamental freedoms, and aims at the destruction of human rights;
  Has an adverse effect on the establishment of the rule of law, undermines pluralistic civil
society, aims at the destruction of the democratic bases of society, and destabilizes
legitimately constituted Governments;
 Has links with transnational organized crime, drug trafficking, money-laundering and
trafficking in arms, as well as illegal transfers of nuclear, chemical and biological
materials, and is linked to the consequent commission of serious crimes such as murder,
extortion, kidnapping, assault, hostage-taking and robbery;
 Has adverse consequences for the economic and social development of States,
jeopardizes friendly relations among States, and has a pernicious impact on relations of
cooperation among States, including cooperation for development; and
 Threatens the territorial integrity and security of States, constitutes a grave violation of
the purpose and principles of the United Nations, is a threat to international peace and
security, and must be suppressed as an essential element for the maintenance of
international peace and security.

HUMAN RIGHTS AND COUNTERTERRORISM

Just as terrorism impacts on human rights and the functioning of society, so it can affect the
measures adopted by States to counter terrorism. As mentioned above, because terrorism has a
serious impact on a range of fundamental human rights, States have not only a right but a duty to
take effective counter-terrorism measures. Effective counter-terrorism measures and the
protection of human rights are complementary and mutually reinforcing objectives which must
be pursued together as part of States’ duty to protect individuals within their jurisdiction.

The international community has committed to adopting measures that ensure respect for human
rights for all and the rule of law as the fundamental basis of the fight against terrorism, through
the adoption of the United Nations Global Counter-Terrorism Strategy by the General Assembly
in its resolution 60/288. Member States have resolved to take measures aimed at addressing the
conditions conducive to the spread of terrorism, including lack of rule of law and violations of
human rights, and ensure that any measures taken to counter terrorism comply with their
obligations under international law, in particular human rights law, refugee law and international
humanitarian law.
In 2004, the High-level Panel on Threats, Challenges and Change reported that recruitment by
international terrorist groups was aided by grievances nurtured by poverty, foreign occupation,
and the absence of human rights and democracy.

In his 2006 report “Uniting against terrorism: Recommendations for a global counter-terrorism
strategy” (A/60/825), the United Nations Secretary-General described human rights as essential
to the fulfilment of all aspects of a counter-terrorism strategy and emphasized that effective
counter-terrorism measures and the protection of human rights were not conflicting goals, but
complementary and mutually reinforcing ones. Universal and regional treaty-based bodies have
likewise frequently observed that the lawfulness of counter-terrorism measures depends on their
conformity with international human rights law.4

SPECIFIC HUMAN RIGHTS CHALLENGES IN THE CONTEXT OF

TERRORISM AND COUNTER-TERRORISM

A. The right to life

Both international and regional human rights law recognize the right and duty of States to protect
those individuals subject to their jurisdiction. In practice, however, some of the measures that
States have adopted to protect individuals from acts of terrorism have themselves posed grave
challenges to the right to life. They include “deliberate” or “targeted killings” to eliminate
specific individuals as an alternative to arresting them and bringing them to justice. The Human
Rights Committee has stated that targeted killings should not be used as a deterrent or
punishment and that the utmost consideration should be given to the principle of proportionality.

B. Challenges to the absolute prohibition against torture

The prohibition of torture and other cruel, inhuman or degrading treatment or punishment is
absolute under international law. It is a peremptory norm—or a norm of jus cogens5—and is non-

4
See, for example, Annual Report of the Inter-American Commission on Human Rights 1990–1991, chap. V, sect. II,
and Digest of jurisprudence ….
5
See, for example, Prosecutor v. Furundžija, para. 144
derogable even in states of emergency threatening the life of the nation under international and
regional human rights treaties.6

The prohibition of torture and other cruel, inhuman or degrading treatment does not yield to the
threat posed by terrorism or to the alleged danger posed by an individual to the security of a
State.7 In practice, however, States have often adopted policies and methods to confront
terrorism that, in effect, circumvent and undermine this absolute prohibition.8

Regarding conditions of detention, practices such as the use of secret and incommunicado
detention, as well as prolonged solitary confinement and similar measures aimed at causing
stress, may amount to torture, cruel, inhuman or degrading treatment. States must ensure that the
full range of legal and practical safeguards to prevent torture is available, including guarantees
related to the right to personal liberty and security, and to due process rights.

C. Transfer of individuals suspected of terrorist activity

States have an obligation to conduct any transfer of detainees in a manner which is transparent
and consistent with human rights and the rule of law, including the right to respect for a person’s
inherent dignity, the right of everyone to recognition before the law and the right to due process.
The international human rights legal framework requires that any deprivation of liberty should be
based on grounds and procedures established by law, that detainees should be informed of the
reasons for their detention and promptly notified of the charges against them, and that they
should be provided with access to legal counsel.

D. Liberty and security of the person

All persons are protected against the unlawful or arbitrary interference with their liberty. This
protection is applicable in the context of criminal proceedings, as well as other areas in which the

6
See articles 7 and 4 (2) of the International Covenant on Civil and Political Rights, articles 3 and 15 (2) of the
European Convention on Human Rights, articles 5 and 27 (2) of the American Convention on Human Rights, article
5 of the African Charter on Human and Peoples’ Rights, and common article 3 of the four Geneva Conventions. See
also InterAmerican Commission on Human Rights, “Report on the situation of human rights of asylum seekers
within the Canadian refugee determination system” (OEA/Ser.L/V/II.106, Doc. 40 rev., para. 118).
7
See Committee against Torture, views on communication N° 39/1996, Tapia Páez v. Sweden, 28 April 1997: “The
test of article 3 of the Convention is absolute. Whenever subjected to torture upon expulsion to another State, the
State party is under obligation not to return the person concerned to that State
8
See, for example, the Report of the Committee against Torture and “Torture and other cruel, inhuman or
degrading treatment: Report of the Special Rapporteur on the question of torture, Manfred Nowak”
State might affect the liberty of persons.9 In practice, as part of their efforts to counter terrorism,
States have adopted measures which have an impact on the liberty of persons, such as: pretrial
procedures for terrorism offences, including provisions concerning bail and the remand of
persons in custody awaiting trial; pretrial detention (detention before laying a criminal charge
against a person for the purpose of further investigating whether that person was involved in the
commission, or assisted in the commission, of a terrorist offence); administrative detention
(detention to prevent a person from committing, or assisting in the commission of, a terrorist
offence); control orders (imposing conditions on a person, short of detention, to prevent that
person from committing, or assisting in the commission of, a terrorist offence, including the
detention of a person awaiting determination of immigration or refugee status); and compulsory
hearings (detention and compulsory questioning of a terrorist suspect, or non-suspect, to gather
intelligence about terrorist activities).

E. Profiling and the principle of non-discrimination

The Inter-American Court of Human Rights has stated that “the principle of equality before the
law, equal protection before the law and non-discrimination belong to jus cogens, because the
whole legal structure of national and international public order rests on it and it is a principle that
permeates all law.”10

F. Due process and the right to a fair trial

Guaranteeing due process rights, including for individuals suspected of terrorist activity, is
critical for ensuring that anti-terrorism measures are effective and respect the rule of law. The
human rights protections for all persons charged with criminal offences, including terrorism-
related crimes, include the right to be presumed innocent, the right to a hearing with due
guarantees and within a reasonable time, by a competent, independent and impartial tribunal, and
the right to have a conviction and sentence reviewed by a higher tribunal satisfying the same
standards.11

9
Human Rights Committee, general comment N° 8 (1982) on the right to liberty and security of persons (art. 9),
paras. 1 and 4
10
See Inter-American Court of Human Rights, Advisory Opinion OC-18/03 on the juridical condition and rights of
the undocumented migrants, 17 September 2003, para. 101
11
See, Human Rights Committee, general comment N° 13 (1984).
 G. Freedom of association

The right to freedom of association, like the right to freedom of expression, is a platform for the
exercise and defence of other rights, such as political participation rights and cultural rights.
Human rights defenders often use this right as a legal basis for their action. It is central to a
democratic society.

H. Surveillance, data protection and the right to privacy

Article 17 of the International Covenant on Civil and Political Rights prohibits States parties
from interfering with the privacy of those within their jurisdiction and requires them to protect
those persons by law against arbitrary or unlawful interference with their privacy. Privacy
includes information about an individual’s identity, as well as the private life of the person.

I. Economic, social and cultural rights

Efforts to address the human rights implications of terrorism and counterterrorism measures have
tended to focus on the protection of civil and political rights, with little attention paid to their
impact on the enjoyment of economic, social and cultural rights. Yet it is clear that terrorism and
measures adopted by States to combat it are both influenced by and have an impact on the
enjoyment of the economic, social and cultural rights of affected individuals, as well as on
broader development objectives.

CONCLUSION

The guarantee of human rights and protection from terrorism cannot be over-emphasized.
Combating and ultimately overcoming terrorism will not succeed if the means to secure that
society are not consistent with human rights standards. The fundamental human rights principles
that are most commonly engaged in the fight against terrorism. It explains states’ obligations in
respect of those rights when dealing with terrorism. Counter-terrorism strategies that are
compliant with human rights not only avoid certain legal pitfalls, but may also prove more
effective in the long term at winning the ideological battle against terrorism than strategies that
themselves violate human rights. One of the side effects of terrorist activity and the international
response to it has been the tendency to pit the ideas of liberty and security against each other.
The notion of human rights protection has often been presented as being in conflict with
protection from terrorism. It will be impossible to achieve global security objectives without
concerted efforts towards the realization of all human rights. Greater efforts must therefore be
made to understand and address the linkages between terrorism and the enjoyment human rights.
 BIBLIOGRAPHY

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