COUNTER-TERRORISM WITHIN THE FRAMEWORK OF INTERNATIONAL HUMANITARIAN LAW

This article was written by Ishaan Mehrotra, a student of Rajiv Gandhi National University of Law, Patiala

ABSTRACT:

The focus on terrorism as an issue at the global scale has attracted the provisions of human rights laws and the impact of such issues on the human rights is very much direct. States in this respect have a fundamental obligation to protect an individual by adopting counter terrorism measures. Recently, the trend has been that the countries under the banner of “counter-terrorism measures” flout the international humanitarian law. In this context, the Guantanamo bay naval base, African continent, the drone strikes by the United States of America and the measures of Iranian government are some of the noteworthy cases. The compliance of the rule of law and respect for human rights should be the founding stone for the global fight against terrorism. This paper is divided into four parts; the first part discusses the impact of difficulty in defining terrorism on the human rights and the second part discusses causal link between the aforementioned; the third part discusses the international framework to combat terrorism and the role of human rights at the both regional level (focusing on European union, United States) and measures adopted by the united nations. It also deals with the specific challenges with respect to rights vested in an individual. The fourth part deals with case studies that are inclusive of the western countries,and the Middle Eastern countries which seem to experience the devastating impacts of the terrorism despite the rhetoric that terrorism is generally anti-western.

KEYWORDS:

Counter-terrorism, International humanitarian law, Terrorism, Human Rights

DEFINING TERRORISM:

Terrorism in common parlance refers to an unauthorized use of violence and intimidation in pursuit of political aims. Although the international community has adopted international treaties,which either deal with counter terrorism strategies or deal with specific types of terrorism, there is still no consensus on defining the term ‘terrorism’. The difficulty in defining such a term can be attributed to the notion that in certain circumstances, it might be legitimate to use violence, owing to the fact that most of the freedom or independence struggles for self-determination have been through the use of violence. However an overly broad definition can defeat such purpose by term terming legitimate acts of dissent as ‘terrorism’. Quoting Alex Schmid[1], the difficulty in generating a definition for terrorism is four-fold: one being it is a contested concept, second being owing to the factors of criminalization and delegitimization, third being with respect to the existence of different forms and types of terrorism and the fourth being changes in its meaning over time. In this respect the efforts of academia, organizations are to be noted. Briefly discussing such efforts and the need for such definition are nodal points at this juncture.

The first attempt to define the term was made in 1937 at the Geneva Convention for Prevention and Punishment of Genocide, where the term was defined as an criminal act directed against a state or that which creates a state of terror in mind of a particular persons or a group or the general public. The then Secretary General of United Nations, Kofi Anan accepted the definition put forth by the High-level panel on Threats, Challenges and Change in the year 2005. He said “… any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act.”[2] However such an endorsement was rejected on the grounds that the idea of state sponsored terrorism and migration for occupation were unaddressed terminologies. The definition of Alex Schmid and Jongman[3]is of importance here. They concluded that terrorism involved instilling a sense of fear in the minds of the people might be driven by either criminal or political factors by a single person or a group. They differentiated between an assassination and act of terror on the basis of the main targets of such acts, the former targets being the direct targets and the latter being chosen at random.

The Draft Comprehensive Convention on Terrorism vide its article 2[4], had attempted to define terrorism as any person committing an unlawful or intentional; death or serious bodily injury, serious damage to public or private property and the damage to such property leading to major economic loss, when the nature of such is to intimidate the population or compel the government to do or abstain from doing any act. The attempt to combat terrorism through an international instrument that defines terrorism and incidentally banning terror groups and prosecute them under special laws was proposed by India in 1996. Despite such efforts, it has faced objection from three main fronts- the Unite States of America, the Latin American countries and the Organization of Islamic Countries on the grounds of exclusion of military acts during peace times, or national liberation movements. Despite the several attempts[5] to bring forth a consensus, there exists no comprehensive definition.

Alex Schmid revised this attempt of defining terrorism in 2011[6], where he picked out 12 factors that are indicative of the characteristics of terrorism. (1) Terrorism refers to a tactic of fear generating or coercive political violence or a conspirational practice targeting mainly civilians or non-combatants; (2) It is mainly employed where there is illegal state repression, agitation by non-state actors outside the zone of conflict, generally which are propagandistic in nature; (3) The violence involved are either single, double or multi-phased acts;(4) The victimization are usually initiated by threats; (5) The main intent of such an act is to instill fear or panic; (6) The direct victims are generally not the ultimate targets as opposed to acts like assassination, but instead they serve as a general message intended for the mass audience; (7) the direct victims are usually civilians and not armed combatants; (8) The source of such acts may be carried out by a single person, a group or a transnational network; (9)There are generally motivated by the impact of politics on the society; (10) The immediate intent of initiating such acts is to instill fear resulting in a chance of favorable outcome; (11) The motivation to engage in such acts are multi varied ranging from religiously inspired to personal reasons or even national liberation; (12) The acts generally form a part of a campaign and creates a climate of fear to manipulate the political process. The factors enlisted above are, till date considered being comprehensive and indicative of the features that are nodal to defining the term.

CAUSAL LINK BETWEEN HUMAN RIGHTS & TERRORISM, COUNTER TERRORISM:

1. HUMAN RIGHTS AND TERRORISM:

In order to address the plague of terrorism, the applicability of human rights jurisprudence is necessary. Human rights as known today emerged as the brainchild of United Nations as an aftermath of the World War II. The main aim was to promote international peace and prevention of conflicts.[7]Recognizing the importance of human rights, the UN established a Commission on Human Rights, which was given the task of drafting an International Bill of Rights.

The draft was adopted by the general assembly in 1948 and was named universal declaration OF human rights. This has now taken to be a part of customary international law[8], which mandates that irrespective of the status of ratification, it is the duty of the states to promote and protect all human rights and fundamental freedoms. Pursuant to UDHR, two principal instruments are International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. Apart from these instruments, treaties regarding specific issues like genocide, torture or targeting vulnerable class of people like refugees or children support the structure of human rights.

The relationship between human rights and terrorism is subject oriented, which is dealt in two folds: the first being the debates prior to 9/11 and the post 9/11 discussions. By the Second United Nations Human Rights Conference in 1993, the developing countries were already faced with armed conflicts and Turkey had insisted to address this issue at the final declaration of this conference. The first world countries, which included the United States and Europe were against the suggestion of Turkey, since according to them terrorists acts were of criminal nature only. An agreement was reached at and it was worded in article 17 of the Vienna Declaration and Programme of Action on Human Rights and Fundamental Freedoms as “The acts, methods and practices of terrorism in all its forms and manifestations as well as linkage in some countries to drug trafficking are activities aimed at the destruction of human rights, fundamental freedoms and democracy threatening territorial integrity, security of states and destabilizing legitimately constituted governments.”[9] Pursuant to this, a study was conducted by sub-commission and in the first working paper[10] indicated that there was ample evidence of the controversy present and listed issues that are to be further addressed: as to what acts of violence constitutes terrorism, when does such act involve human rights violence and on the need to strike a balance between combat strategies and protection of human rights. It is evident that prior to 2001, the question reflected mainly on, determining violent acts as terrorist acts.

The impact of 9/11 did not create a boom in the terrorism studies but initiated the discussions on the need to create an effective way to combat them. A cluster of Non-Governmental Organizations pointed out the “protection gap” in the counterterrorism strategies of the countries and proposed to establish a committee to overlook such strategies and analyze their compliance with human rights obligations. In 2003, this idea materialized and the UN High Commissioner for Human Rights was given the task of monitoring and to expound a comprehensive approach to the issues concerning the impact of terrorism on the enjoyment of human rights.[11]The High Level Panel on Threats, Challenges and Change apart from stressing the need on a definition, also discussed on the possibilities of a comprehensive global strategy for combating terrorism. The report emphasized on reversing the causes of terrorism by promotion of rule of law and democratic reforms, counter extremism through debates and education, develop better counter terrorism strategies, build up state’s capacity to prevent recruitment of terrorists. This was later adopted in Kofi Anan’s speech[12] at the International Summit on Democracy. Professor Martin Scheinin, in his report[13] had mentioned about the lack of any comprehensive convention against international terrorism and on the consensus definition.

1. HUMAN RIGHTS AND COUNTERTERRORISM:

As seen earlier, the notion of terrorism is not new; the efforts to draw up counter terrorism strategies date as early as 1930s. The current legal framework, to combat terrorism, has been initiated with respect to specific activities or a particular event. It covers the following treaties:

• Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963
• Convention for the Suppression of Unlawful Seizure of Aircraft, 1970;
• Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971
• Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973
• International Convention against the Taking of Hostages, 1979
• Convention on the Physical Protection of Nuclear Material, 1980
• Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1988
• Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988
• Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1988
• Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991
• International Convention for the Suppression of Terrorist Bombings, 1997
• International Convention for the Suppression of the Financing of Terrorism, 1999
• Convention on the Suppression of Acts of Nuclear Terrorism, 2005.

Although each of the above mentioned conventions imposes different obligations, each of these include establishing a jurisdiction for the offences covered by each, penalty for each offence, procedure for custody, prosecution and extradition of offenders (mentioned both in the extradition treaties between the parties as well as under the convention), preventive measures and exchanging intelligence received. The post 9/11 era has witnessed increased involvement from the General assembly and the Commission on Human Rights. The key resolution that is to be considered is that which was taken up by the General Assembly in 2004[14]. It imposes an obligation on the state that any measure taken to combat terrorism must be in compliance or within the ambit of its obligations under international law, especially human rights, humanitarian law and refugee laws. Another important measure taken was the freezing of assets and against funding of terrorist organizations[15]. It was extended against Talibans and Al-Qaeda, post 9/11.

Resolution 1373 established a Counter-Terrorism Committee (CTC) to monitor the compliance under the resolution. It is composed of the members of the Security Council. Upon a perusal of the Resolution 1373, very little concern is diverted to the human rights. This gave way for the Resolution 1456[16], which insists on compliance of its obligations under international law, especially human rights; humanitarian law and refugee law by the states while combating terrorism. The UN Global Counter Terrorism Strategy that was adopted in the year 2006 is an instrument, which aims at enhancing national, international efforts to counter terrorism. The strategy is supported by four pillars; the first being addressing the conditions conducive to terrorism, the second being preventing and combating terrorism, the third being building the state’s capacity and increasing the role played by the Unite Nations and the fourth and key pillar being ensuring Human Rights and the rule of law.[17] However there are flagrant violations of the obligations under this resolutions like in the case of drone strikes conducted by the USA, the Guantanamo bay human rights violations, the fog around the interrogation of acquaintances of Osama Bin Laden etc, which will be dealt in the last part of this paper. Furthermore the High Commissioner for Human Rights also raised doubts regarding such compliance of the resolution 1456[18]. As part of its working, it has established CTED which includes human rights experts and communicates directly with the High Commissioner for Human Rights.

The regional approaches to counter terrorism, is mainly concentrated on the European Union and United States of America, respectively. The Organization for Security and Co-operation in Europe, with an aim to create a comprehensive framework for peace and stability within the region, has made many politically binding commitments with respect to counter terrorism. The strategy followed by OSCE is that of the Bucharest Plan of Action for combating terrorism. The main tenant of the action plan was to promote human rights, tolerance and multi-culturalism. Incidental to OSCE is the Committee of Ministers of the Council of Europe, who has issued a set of guidelines on human rights and the fight against terrorism. The guidelines lays emphasis on the obligation of state to protect human rights and also distinguishes the legitimate national security reasons with the protection of fundamental freedoms.

The European Court of Human Rights has adjudicated several cases on the above lines. Article 15 of the European Convention on Human Rights states that in times of war or any other public emergency, the contracting party may deviate from its obligations under the convention and take measures as the situation requires, which may not be in consonance with its obligations. One of the first cases dealing with derogation was in 1950s, where derogation was committed by Ireland in 1957, following a terrorist act. In this instant case[19] the applicant was suspected of being a member of Irish Republican Army was detained in a military camp without a trial. The court while dealing with the inhuman conditions of detention or punishment[20], held that psychological interrogation techniques such as wall standing, hooding, subjection to deprivation of food, water or sleep is in derogation of article 3.

The European Union, as a response to terrorism, has appointed a counter terrorism co-coordinator and a strategy, which was common for the members of EU. The strategy[21] consists of four limbs: the first being prevention of people to turn to terrorism by tackling the root causes, the second being protecting its citizens and infrastructure, the third being to investigate the terrorists in EU and to disrupt their networks by freezing their assets, cutting off their funding and bringing them to justice, the fourth being to minimize the consequences of a terrorist attack and to deal with its aftermath.

The change of administration in the United States of America has brought about a significant change in the international counter-terrorism debates, including that of protection of human rights. The Obama’s regime has seen significant changes to that of Bush’s administration, of them being prohibition of usage of torture and CIA detentions, the closure of Guantanamo detention centers and instituted military reviews. Although commendable these steps are, the US has not altogether abandoned its war against terror. President Obama in a key speech stated that “Al-Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again.”[22] With assumption of Donald Trump as President of United States, it seems that the United States is again driven by the militant combatant strategy, which is against the statistical report, by the Global terrorism index. The US 2018 National Security Strategy indicates that the focus is shifting towards interstate threats posed by China and Russia. The stance taken by the President during his campaign, which seemed to be an all out war against the Islamist terrorism has been now shifted to that of towards Russia and China. This shift appears to be by reason of Russia’s intervention in Ukraine and possible interference in the presidential election. The Trump’s administration envisions a stronger military alliance and creation of a lethal military force. A draft of the strategy indicates that nation building and democracy are seen as instruments that may hinder their military objectives.[23]

In addition to the compliance of basic human rights tenants, the counter terrorism strategies must also include specific issues relating to human rights and these include: equality and non-discrimination, human rights in emergency, international criminal law and accountability of states for the acts of non-state actors. Equality before law is one of the basic tenants of democracy. The United Nations human rights instruments have proactively emphasized protection against discrimination, as it is evident from the wordings of Article 1 of the United Nations Charter. The post 9/11 era, the act of racial profiling has seeped in, by virtue of the “stop and search” power entrusted with the police. The German constitutional court while dealing with a case[24] on the similar lines had held that such profiling could be in consonance with the basic law only if there is any concrete danger to right to life and security, either to the federation or an individual. With respect to human rights in a state of emergency, Article 4 of the ICCPR and Article 15 of ECHR state that that in times of war or any other public emergency, the contracting party may deviate from its obligations under the convention and take measures as the situation requires, which may not be in consonance with its obligations, provided that they are not in derogation of their other obligation under international law and does not involve discrimination on the grounds of race, religion and sex. This has been extensively dealt in the previous part of this paper.

CASE STUDIES:

In this part of the paper, focus would be shifted to specific cases of the Guantanamo Bay Navel Base situation, the 2017 Iran counter attacks.

The 9/11 commission had concluded that the government had taken up various actions to curtail the civil and political liberty post September 2001. As stated in the preceding paragraphs, the highlight of Obama’s tenure was the abolition of the detainees who were being held in the Guantanamo Bay. It is the practice of first world to countries to choose a location beyond the purview of the human rights activists and was used as a camp for holding detainees. Less was known about the human rights conditions prevailing. In this case, Cuba came against the establishment of such a base in its terrorists were there could be flagrant violation of human rights. The Working Group on Arbitrary Detention, in 2003 had issued an opinion stating that the detainees were unable to seek legal counsel and in addition to this there were no charges laid against them. The group had opined that this was in violation of article 9 of the universal Declaration of Human rights and of ICCPR, to which USA is a signatory. The USA answering to this opinion had stated that the working group had not taken into consideration the law of armed conflicts and the individuals detained there were enemy combatants. Furthermore, the members of Al-Qaeda or Taliban were not conferred with prisoner of war status, which in their view would undermine the Geneva conventions. In February 2006, 5 rapporteurs issued a report stating that the detainees are entitled to challenge the legality of their detention before a judicial forum and to obtain release if it is found that there is lack of proper legal basis to detain them. They had further alleged that, the USA had attempted to disguise ‘torture’ within the terms of counter-terrorism in order to allow certain techniques, which would not be permitted in normal circumstances and are in violation of article 1 of the Convention against Torture. Furthermore, the conditions of detention like; ambiguities as to the time period for such detention, inhumane treatment, and solitary confinement and also right to health of the detainees were compromised. This report was also rejected by the USA.[25] The final nail in the coffin with respect to the human rights violations can be attributed to the Cuban draft, which was revived.

The second example is the measures taken by Iranian Government in response to the terrorist attacks in 2017. The Iranian security forces arrested suspects with alleged link to a terrorist group, i.e. Islamic State. Days after the twin attacks in Tehran, the intelligence ministry issued a statement that it had arrested 41 members of the IS in different parts of the country. Raisi, a human Rights Advocate had opined that the authorities might be inaudible to torture, arbitrary arrests or unlawful detentions without firm legal foundations on the basis that the attackers belonged to Sunni sect of Muslims. The security cases in Iran are generally in violation of the human rights law because they are denied access to legal counsel for weeks and can seek help only after the approval of the judiciary, and the entire process not being transparent is another feather on the hat. [26]

CONCLUSION:

The counter-terrorism measures should be in line with international humanitarian law and the derogations if any to be must be given at exceptional and rarest of rare circumstances. In the fight against terrorism human rights standards have been neglected in order to favor illegal arrests, renditions, torture techniques or inhumane treatment, discrimination and other violations. The USA government and Iran are creating a vicious cycle by repressing human rights that in turn reduce the prospects of international counter-terrorism co-operation. All of these trends undermine the values of human rights and thus would make the counter-terrorism strategy unsuccessful.

[1]Schmid, A. (2004). Terrorism – The Definitional Problem. [eBook] Case Western Reserve Journal of International Law. Available at: https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1400&context=jil [Accessed 18 Aug. 2018].

[2]In larger freedom: towards development, security and human rights for all. (2015). [eBook] United Nations General Assembly, p.25. Available at: http://undocs.org/A/59/2005 [Accessed 18 Aug. 2018].

[3]Schmid, A. and Jongman, A. (1988). Political terrorism. North Holland, Amsterdam: Transaction Books.

[4]Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996. (2002). [ebook] New York, p.6. Available at: http://www.un.org/documents/ga/docs/57/a5737.pdf [Accessed 20 Aug. 2018].

[5]Un.org. (2012). Legal Committee Urges Conclusion of Draft Comprehensive Convention on International Terrorism | Meetings Coverage and Press Releases. [online] Available at: https://www.un.org/press/en/2012/gal3433.doc.htm [Accessed 20 Aug. 2018].

[6]Schmid, A. (2012). The Revised Academic Consensus Definition of Terrorism. [online] Terrorismanalysts.com. Available at: http://www.terrorismanalysts.com/pt/index.php/pot/article/view/schmid-terrorism-definition/html [Accessed 19 Aug. 2018].

[7]Un.org. (n.d.). Chapter I: Purposes and Principles. [online] Available at: http://www.un.org/en/sections/un-charter/chapter-i/index.html [Accessed 20 Aug. 2018].

[8]Cooper, J. (2007). Countering Terrorism, Protecting Human Rights: A Manual. [ebook] Warsaw: OSCE Office for Democratic Institutions and Human Rights, p.44. Available at: https://www.osce.org/odihr/29103?download=true [Accessed 20 Aug. 2018].

[9]Ohchr.org. (1993). OHCHR | Vienna Declaration and Programme of Action. [online] Available at: https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx [Accessed 20 Aug. 2018].

[10]Koufa, K. (n.d.). Terrorism and human rights. [ebook] United Nations, Economic and Social Council. Available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G97/129/03/PDF/G9712903.pdf?OpenElement [Accessed 20 Aug. 2018].

[11]Issafrica.org. (2003). Resolution adopted by the General Assembly on 22 December 2003. [online] Available at: https://issafrica.org/ctafrica/uploads/UNGA%20Res%2058:187.%20Protection%20of%20human%20rights%20and%20fundamental%20freedoms%20while%20countering%20terrorism%20.pdf [Accessed 20 Aug. 2018].

[12]Un.org. (2004). Note by the Secretary-General. [online] Available at: https://www.un.org/ruleoflaw/files/gaA.59.565_En.pdf [Accessed 20 Aug. 2018].

[13]Scheinin, M. (2005). PROMOTION AND PROTECTION OF HUMAN RIGHTS. [online] United Nations Economic and Social Council. Available at: https://undocs.org/E/CN.4/2006/98 [Accessed 20 Aug. 2018].

[14]Issafrica.org. (2003). Resolution adopted by the General Assembly on 22 December 2003. [online] Available at: https://issafrica.org/ctafrica/uploads/UNGA%20Res%2058:187.%20Protection%20of%20human%20rights%20and%20fundamental%20freedoms%20while%20countering%20terrorism%20.pdf [Accessed 20 Aug. 2018].

[15]United Nations (2001). SECURITY COUNCIL UNANIMOUSLY ADOPTS WIDE-RANGING ANTI-TERRORISM RESOLUTION. [online] Available at: https://www.un.org/press/en/2001/sc7158.doc.htm [Accessed 20 Aug. 2018].

[16]Unscr.com. (n.d.). Security Council Resolution 1456 – UNSCR. [online] Available at: http://unscr.com/en/resolutions/1456 [Accessed 20 Aug. 2018].

[17]Un.org. (n.d.). UN Global Counter-Terrorism Strategy | Counter-Terrorism Implementation Task Force. [online] Available at: https://www.un.org/counterterrorism/ctitf/en/un-global-counter-terrorism-strategy [Accessed 20 Aug. 2018].

[18]EFFECTIVE FUNCTIONING OF HUMAN RIGHTS MECHANISMS. (2003). [ebook] Geneva: United Nations Economic and Social Council, p.22. Available at: https://digitallibrary.un.org/record/502981/files/E_CN.4_2004_4-EN.pdf?version=1 [Accessed 20 Aug. 2018].

[19]Case of Lawless Vs. Ireland [1961] (ECHR).

[20]Ireland Vs. United Kingdom [1978] (ECHR).

[21]Justice and Home Affairs (2005). COUNCIL OF THE EUROPEAN UNION. [online] Available at: http://europa.eu/rapid/press-release_PRES-05-296_en.htm?locale=en [Accessed 20 Aug. 2018].

[22]Stein, S. (2009). Obama National Archives Speech (TRANSCRIPT, VIDEO). [online] HuffPost India. Available at: https://www.huffingtonpost.in/entry/obama-national-archives-s_n_206189 [Accessed 20 Aug. 2018].

[23]Zimmerman, S. (2018). What the US National Security Strategy means for Counterterrorism – AIIA. [online] Australian Institute of International Affairs. Available at: https://www.internationalaffairs.org.au/australianoutlook/us-counterterrorism/ [Accessed 20 Aug. 2018].

[24]BvR 518/02 [2006] (German Federal Constitutional Court).

[25]Sundberg, U. (2005). Revue internationale de droit pénal. [online] Available at: https://www.cairn.info/revue-internationale-de-droit-penal-2005-3-page-319.htm#re20no20 [Accessed 20 Aug. 2018].

[26]Center for Human Rights in Iran. (2017). Human Rights Lawyer: Iran’s Response to Terrorist Attacks Could Lead to Major Rights Abuses. [online] Available at: https://www.iranhumanrights.org/2017/06/human-rights-lawyer-irans-response-to-terrorist-attacks-could-lead-to-major-rights-abuses/ [Accessed 20 Aug. 2018].