Counter Terrorism and Human Rights Violation

Counter Terrorism and Human Rights Violation

Author:  Chaitanya Sharma,
3rd Year Student, 
Christ [Deemed to be University]
Abstract
Terrorism is an undefined subject matter in the present international scenario. Though there are several small legislations and rules in various countries defining terrorism in terms of violent activities, there is still no internationally accepted definition of terrorism. The UN’s conventions and Security Council’s resolutions influence municipal laws across the world. And even though it is the responsibility of UN to protect the rights of Individuals across the world, there is gross violation on the part of Security Council as well as the UN when it comes to counter terrorism laws. The Security Council’s resolution 1373 which was introduced in the wake of the 9/11 attack started war on terrorism. The resolution asked states to make laws related to terrorism and to arrest people who are suspects of terrorism activities. The main problem with the policies of countries is that they violate UDHR. The need of the hour is to introduce reforms in relation to counter terrorism laws, starting with defining what amounts to terrorism. At the same time UN and security council should take steps to end detention without trial, something which is quiet prevalent in UK, US and other common wealth countries. Also, steps should be taken to stop non-refoulement in respect to terrorism refugees. This research paper focuses on two questions in particular. The first question being, What are the counter terrorism laws across the world and how they are violating human Rights. The second question deals with the state of counter terrorism laws in India.
Key Words: Counter terrorism laws, Universal Declaration of Human Rights, Non-Refoulement, UAPA
Introduction
The concept of terrorism isn’t something new to our society. We human beings in the lust of power have had always committed one act of violence or another. From the ‘Assassins’ of Hassan Bin Sabbah to the great French revolution, terrorism has always affected the concept of humanity.[1]Terrorism can be defined as the unlawful use of force, backed by malice, against people in order to create civil unrest or to coerce the government in furtherance of some objective[2]. Even though it is a problem prevalent at the global level, countries across the globe have failed to agree to a common definition of what the term ‘terrorism’ means. What one country labels as terrorism depends upon the political side one is on.[3] It is due to this lack of definition of terrorism that the states are bending international resolutions and conventions for the purpose of punishing the people who are not even guilty of any terrorist activity.

Even though there existed state legislation in every country, the legal perspective of Terrorism laws changed dramatically throughout the world, after the attack of 9/11. The guidelines and resolutions of the General Assembly and Security Council have helped in the evolution and emergence of the current laws, but at the same time the obligation on the states to either extradite or prosecute the suspects of terrorist activities has resulted in violation of human rights throughout the world.[4]

Counter Terrorism Strategies and Human Rights Violation

‘The “war on terrorism” as launched by United States of America after the attack of 9/11 has world-wide repercussions’.[5]Within a few weeks, the Security Council passed resolution 1373. The resolution which was binding upon all states served as basis for development of several state based legislation. The broad and vague provisions of the resolution led to creation of counter terr
orism laws across the globe without any obligation under the international human rights law. Thus, the Security Council left the term terrorism for wide interpretations as a result of which unprecedented powers were handed to government and police. In the urgency to promote security, the Security Council forgot to take into account the humanitarian concept of counter terrorism laws. The United Nation, in a way took Human rights as an obstacle to achieve Global peace and forgot that respect for human rights and rule of law is vital for policies to halt and prevent terrorism. As a result of this, countries have witnessed the introduction of laws that hold people without trial often on the basis of secret evidence and sentences people to prolonged detention. The status of terrorism laws is so bad that even Non-violent activities have been included in the national definition of terrorism by many countries across the wotherlands.
Religion based counter terrorism is yet another form of Counter terrorism policy which even though isn’t declared directly, is to a large extent targeting particular communities across the world. The alienation of Muslim communities, especially the immigrants is one of the greatest communal problems in the world, especially in Europe. This alienation feeds the hatred for other communities which in turn feeds the sense of powerlessness, giving rise to rebellion in form of terrorism.[11]Even the European Security Strategy believes that the sense of alienation tends to abet terrorism. Such policies are in clear violation of article 2 of UDHR yet the evil of community based counter terrorism still exists across the world. In the month on June 2107 Ahmed H was held liable for ‘an act of terror’ in Hungary. However, his arrest is arbitrary and shows clear misuse of ‘anti-terrorism’ provisions as he was convicted for ‘throwing stones’ in a cross border dispute, which according to the Hungarian Authorities amounted to a terrorist activity.[12] The ‘war on terror’ which was started following the attacks of 9/11 are more of interaction between United States and Islam[13]
Non refoulement is yet another problem related to counter terrorism policies. Many countries have breached their obligation of non-refoulment under the international law. Countries usually take the defence of Memorandum of Understanding or ‘assurance’ while returning people to their native country, especially those who are terrorist suspects.[14] An example for this cause is the refoulment of Abu Qatada, who was sent back to his country (Jordan) after a Memorandum of understanding, was signed between the United Kingdom and Jordan’s government that Abu Qatada won’t be subjected to torture or any form of ill-treatment. Such an act of the United Kingdom is in clear violation of Article 14 of the UDHR which puts an obligation upon the nations to provide asylum to refugees in order to protect them from persecution. Now the question arises whether assurances are enough to protect a refugee from persecution? Why are states not abiding by the international laws related to refugees and human rights? And more importantly, who will punish the states for violation of human rights are a few questions that remains unanswered and have been continuously suppressed under political pressure leaving the at risk lives of refugees at stake. States usually convict a suspect without having any proof against him, because the state lacks any proof they fail to prosecute the suspect successfully. Due to this reason, states have shifted to a practice wherein they transfer these terrorist suspect to countries who are willing to receive them by signing a diplomatic assurance. The main problem with such assurances is that, they are not binding in nature. They are only persuasive in nature and thus no legal action can be taken against a state which doesn’t oblige by these assurances.[15] However, it should be kept in mind that non-refoulement and transfer of suspects for extradition are two different concepts. As held by the European Court of Human rights in the case of “Chahal Singh Vs United Kingdom(1996), the principle of non-refoulement didn’t apply in extradition cases, but was equally absolute in      expulsion cases.”[16]

Thus, to conclude, it can be said that the current counter terrorism laws are quiet ambiguous in nature. The main problem with the legislature in different countries is related to definition of ‘Terrorism’. Various countries across the globe have resorted to draconian laws which tend to suppress the freedom of expression and non-violent protest. The need of the hour is the introduction of a new convention or resolution on an international level which gives a particular definition of terrorism and defines the principle for detention, conviction and prosecution of suspects of terrorism. At the same time, a body should be created by the United Nations which keeps a check on non-refoulement of suspects by various nations across the globe. Such body may also be granted powers to give punishment to the states that infringe the refugee law. There is a dire need of reforms related to counter terrorism policies across the world as the current laws are infringing the human rights.

Anti-terrorism laws and the case of India
The legal framework for Anti-terrorism laws in India revolves around three laws in particular: Unlawful Activities (Prevention) Act 1967(UAPA), Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and Prevention of terrorist Activities Act, 2002 (repealed). India, like the other countries in the world is also accused of draconian laws. The constitution of India does not discr
iminate between a prisoner, a terrorist and an ordinary person..[17] The concept of ‘innocent’ until proven guilty is followed in the country. However, in case of terrorism, the burden of proof  is reversed , the accussed shall be guilty of an activity until unless he proves beyond a reasonable doubt that he is innocent. In a report submitted by the Human rights watch in association with People’s Union for civil Liberties, it was found that the laws related to counter terrorism are in clear violation of human rights. Laws like UAPA give Police wide powers which they abuse in order to extract information from the subjects. In the interviews conducted by Human Rights watch in the year 2011, it was found that the police are using this draconian law to incarcerate suspects for long periods. The situation is further more worse in state of Gujarat.[18] The laws in India are being used to create an at
mosphere of fear. The state has enforced these laws without keeping in mind various international obligations. Even though ‘Prevention of Torture Bill, 2010’ was passed by the Lok sabha, the state of suspects of terrorism is still no different. Preventive detentions, conviction without trial, unlawful and secret detentions, and encounters are among the many problems being faced by suspects. Existence of such laws in a country being governed by the rule of law is a shame. The Mumbai attack of 26/11 amended the UAPA. Even after the amendments, human rights organization across the globe has criticized the act to be in violation of human rights. The section 3 and section 6 of UAPA gave government the powers to shut down a few organizations for period of two years. Such a provision is against article 19 of the Constitution of India which talks about the freedom of speech and expression. Even Section 3 of the UAPA gives state the power to withhold the evidence against a person in favour of Public welfare. Section 12 of the act gave the police powers to detain a person for a period of 120days under the Police, which is against Article 9 of UDHR. Even the 2012 Amendment of the UAPA was of no good with respect to Human rights. The amendment increased the ban on organization from two years to five years, this was in response to the movement started by many unregistered clubs in North-East India. In a report submitted by Human Rights Watch, it was held that the new amendment would allow Police to arrest a person on the ground of arrest with a suspect.Implementation of security legislation in India has led to human rights violations in several states. The Armed Forces Special Powers Act of 1958 has been widely used in the Northeast region of India, and in Jammu and Kashmir. It violates international human rights standards by giving the security forces wide-ranging powers, including shooting to kill. The Act has also facilitated grave human rights violations, including extrajudicial executions, enforced disappearance, rape and other torture, since the armed forces are provided with impunity under its provisions. A 2006 report by an official panel led by a retired judge acknowledged widespread abuses and recommended that the Act be repealed, but it remains in force. India did repeal the Prevention of Terrorism Act in 2004 after complaints of widespread abuse, but over a hundred people, all belonging to the Muslim minority, were held under the act in Gujarat and have yet to be brought before the ordinary courts. Considering past violations under broadly framed security legislation in the country, Amnesty International is concerned that demands to introduce new anti-terror legislation could result in laws and practices that breach India’s human rights obligations.[19]
Conclusion
It can be said that the current legislature related to counter terrorism on an international level is quite ambiguous. The main problem with the laws is the lack of definition of terrorism. What terrorism means is different for different countries, the political view of different countries is what defines terrorism in reality. Due to difference in opinion of political leaders has led to gross violation of human rights across the world. At the same time, the counter terrorism policies have given birth to various other problems like detention without trial and conviction without any evidence. The main challenge for counter terrorism policies is the introduction of fair trial policies across the world.This brief review of counter-terrorism measures in selected countries illustrates the pressing need for all UN Member States to initiate a prompt and thorough review of their counter-terrorism laws and practices to ensure that they are brought in line with human rights standards. In so doing, states must act upon the specific recommendations made by the High Commissioner for Human Rights, the relevant Special Procedures of the Human Rights Council including, especially, the Special Rapporteur on human rights and counter-terrorism, as well as the specific observations and recommendations made by the relevant treaty bodies, including the Human Rights Committee, the Committee against Torture and the Committee on the Elimination of Racial Discrimination. The High Commissioner for Human Rights has repeatedly emphasized that “compliance with international human rights standards is essential where any counter-terrorism measure involves the deprivation of an individual’s liberty.” Moreover, the Human Rights Committee, in an important General Comment relevant to all measures taken in the name of security, has emphasized that even in cases of a public emergency which threatens the life of the nation, all State Parties to the ICCPR are obliged to uphold fundamental requirements of fair trial, which include the presumption of innocence and the right to take proceedings before a court.

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[1] Sandhu, Harmeet Singh “Terrorism and Human Rights: An Appraisal” vo
l. 65, no. 1, Pakistan Horizon, 71–82. (2012)


[2] Puroshotham, P. W., et al. “ADDRESSING FRONTIER-TERORISM- INDIA NEEDS GLOBAL COUNTER-TERRORISM STRATEGY.” Vol. 70, no. 2 The Indian Journal of Political Science, 553–568 (2009)

[3] Daniel Moeckli, Human rights and non-discrimination in the War on terror (2008)

[4] Daniel Moeckli, Human rights and non-discrimination in the War on terror (2008)

[5] Security and Human Rights Counter-Terrorism and the United Nations , Amnesty International September 2008, Index: IOR 40/019/2008 https://www.amnesty.org/en/documents/ior40/019/2008/en/

[6] Report of the UN High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism (A/HRC/8/13) paras 20 – 23. 

[7] Global Citizenship Commission. “Social and Economic Rights.” The Universal Declaration of Human Rights in the 21st Century: A Living Document in a Changing World, edited by Gordon Brown, 1st ed., vol. 2, Open Book Publishers, Cambridge, UK, 2016, pp. 63–70. JSTOR, www.jstor.org/stable/j.ctt1bpmb7v.12.

[8] Security and Human Rights Counter-Terrorism and the United Nations , Amnesty International September 2008, Index: IOR 40/019/2008  pp. 27-28 https://www.amnesty.org/en/documents/ior40/019/2008/en/

[9] Global Citizenship Commission. “Social and Economic Rights.” The Universal Declaration of Human Rights in the 21st Century: A Living Document in a Changing World, edited by Gordon Brown, 1st ed., vol. 2, Open Book Publishers, Cambridge, UK, 2016, pp. 63–70. JSTOR, www.jstor.org/stable/j.ctt1bpmb7v.12.

[10]Malaysia: New anti-terrorism law a shocking onslaught against human rights, Amnesty International. (Last accessed on 2.02.201817:25)https://www.amnesty.org/en/latest/news/2015/04/malaysia-new-anti-terrorism-law-a-shocking-onslaught-against-human-rights/
[11] O’Brien, P. (2016). Terrorism. In The Muslim Question in Europe: Political Controversies and Public Philosophies (pp. 199-240). Philadelphia; Rome; Tokyo: Temple University Press. Retrieved from http://www.jstor.org/stable/j.ctt1kft8dx.9

[12] Hungary: Appeal Court orders retrial of man convicted of ‘terrorism’ for throwing stones, Amnesty International. (Last accessed on 2.02.2018 20:05) https://www.amnesty.org/en/latest/news/2017/06/hungary-appeal-court-orders-retrial-of-man-convicted-of-terrorism-for-throwing-stones/
[13] Sides, John, and Kimberly Gross. “Stereotypes of Muslims and Support for the War on Terror.” The Journal of Politics, vol. 75, no. 3, 2013, pp. 583–598. JSTOR, JSTOR, www.jstor.org/stable/10.1017/s0022381613000388.

[14]  Security and Human Rights Counter-Terrorism and the United Nations , Amnesty International September 2008, Index: IOR 40/019/2008  pp. 34  https://www.amnesty.org/en/documents/ior40/019/2008/en/

[15] Michaelsen, Christopher. “THE RENAISSANCE OF NON-REFOULEMENT? THE OTHMAN (ABU QATADA) DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS.” The International and Comparative Law Quarterly, vol. 61, no. 3, 2012, pp. 752, www.jstor.org/stable/23279934.

[16] Michaelsen, Christopher. “THE RENAISSANCE OF NON-REFOULEMENT? THE OTHMAN (ABU QATADA) DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS.” The International and Comparative Law Quarterly, vol. 61, no. 3, 2012, pp. 753-54, www.jstor.org/stable/23279934.


[17] Security and Human Rights Counter-Terrorism and the United Nations , Amnesty International September 2008, Index: IOR 40/019/2008  pp. 81 https://www.amnesty.org/en/documents/ior40/019/2008/en/

[18] Human Rights Watch, ‘The Anti-Nationals: Arbitrary Detention and Torture of Terrorism Suspects in India’, http://www.hrw.org accessed on 2 February 2018.

[19] Security and Human Rights Counter-Terrorism and the United Nations , Amnesty International September 2008, Index: IOR 40/019/2008 pp. 30 https://www.amnesty.org/en/documents/ior40/019/2008/en/

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