Balancing Counter-Terrorism Measures with International

Human Rights
moderndiplomacy.eu/2020/11/23/balancing-counter-terrorism-measures-with-international-human-rights/

November 23, 2020

In his statement at a special meeting of the Security Council’s Counter-Terrorism Committee

on 6 March 2003, the Former Secretary-General Kofi Annan has noted:

“….Our responses to terrorism, as well as our efforts to thwart it and prevent it, should
uphold the human rights that terrorists aim to destroy. Respect for human rights, fundamental
freedoms, and the rule of law are essential tools in the effort to combat terrorism – not
privileges to be sacrificed at a time of tension.”

Acts of terrorism are one of the gravest forms of human rights violations that can potentially
shake up the spirit of society. People acquire a hateful approach towards the terrorists and
those involved in terrorist activities. Moreover, governments do not hesitate to take all
possible hardest actions against terrorism to secure their citizens and nation. It can be
understood that any counter-terrorist measure taken to satisfy this sentiment of society will
more likely be appreciated rather than being criticized. In the wake of this situation, it
becomes crucial for the state and its agencies to observe the human rights laws while

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enacting and exercising the anti-terrorist measures (OHCHR 2008). It has been found that
there exists a continuous struggle between national security interests and the protection of
the human rights of individuals. In numerous cases, European and American Courts have
preferred human rights over the draconian legislative provisions to curb terrorism. When one
is dealing with terrorism, measures taken for counter-terrorism shall give high regard to
human rights. If States fail to achieve this balance, they will ultimately defeat the success of
their counter-actions. Thus, it is to be remembered that one should not become a demon that
they are fighting.

Understanding International Human Rights

Human rights are the core universal values available to every individual and group being a
human. It provides fundamental freedoms to individuals and protects them from the arbitrary
use of power by the state (OHCHR 2008). International human rights are the rights reflected
under various core international human rights treaties and customary international law. It
includes the Universal Declaration of Human Rights, International Covenant on Civil and
Political Rights, International Covenant on Economic, Social and Cultural Rights, and others.
Moreover, the prohibition of genocide, torture, and slavery is widely recognized as
peremptory norms from which no derogation is possible. All the concerned state parties are
under an obligation to protect human rights enshrined under these instruments. They shall
not take any action in the breach of their commitments.

The immense importance of human rights raises a few considerations before the state.
Whether human rights can be compromised in the name of national security? How should
states deal with a situation where human rights fall between their national security or other
interests? This short note will try to reflect on these essential issues.

What Is Terrorism?

There exists no universal definition of the term ‘terrorism’ (Acharya 2009); however, General
Assembly has tried to define it as “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 are
in any circumstance unjustifiable, whatever the considerations of a political, philosophical,
ideological, racial, ethnic, religious or any other nature that may be invoked to justify them”
(UNGA 1995). This term finds its mention under International Humanitarian Law that
prohibits ‘terrorism’ and ‘acts of terrorism’ committed during an armed attack (Kaponyi 2007).
During peacetime, such acts are dealt with under national laws, international criminal law,
and human rights laws. Terrorism has been observed as a criminal act rather than an act of
war (Acharya 2009); however, this definition is still evolving.

Terrorism is a controversial term, and its meaning differs from context to context and time to
time. A person or group who acts as a terrorist for some might be a hero for others. However,
it should be presumed that all such violence and destruction that constitutes terrorism and

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terrorist activities are done in the breach of human rights. These activities cause severe
injury to the life and liberty of the individuals and the unity and integrity of the nation (Kaponyi
2007). In the interest of humanity, the state needs to adopt counter-terrorism measures in its
legislation and enforcement actions to prevent and suppress terrorist activities while
observing the rule of law.

Interaction Between Counter-Terrorism Measures And International Human Rights

There exists an unavoidable link between counter-terrorism measures and international

human rights (Kielsgard 2013). Acts of terrorism provide legal justification to the threatened
state to take actions that can cause severe human rights abuses. The interplay between
these two concepts aims to address three dimensions of human rights: concerning the
victims of the terrorist attacks, concerning the suspected terrorists, and concerning the
people subjected to terrorism (Kaponyi 2007). The first category requires the right to life and
dignity and the right to justice. The second category talks about the right to life, the
presumption of innocence until proven guilty, the right to a fair trial, freedom from arbitrary
detention, torture and degrading treatment, and the right to asylum. The third category talks
about the right to life, right to information, freedom of association, strike, and expression. It is
to be noted that the list of these rights are not exclusive and may include other related rights.
Therefore, the state’s actions must not defy its international human rights commitments in the
guise of national security. There have been instances when courts have curtailed
unnecessary and vague security measures found in infringement of human rights.

In Hamdan v Rumsfeld US Supreme Court held that the structure and procedures of the
Military Commissions been set up to try detainees of Guantanamo Bay violates the Uniform
Code of Military Justice and Common Article 3 of Four Geneva Conventions, 1949. It was a
landmark case that restrained the Presidential power vis-à-vis the treatment of Guantanamo
Bay prisoners (Philips 2006). In Hamdi v Rumsfeld Supreme Court rules, US citizens
detained as enemy combatants have the right to due process and the ability to challenge
their enemy combatant status. However, in Rasul v Bush Supreme Court provided that it has
jurisdiction to hear habeas corpus petitions foreign nationals detained at Guantanamo Bay.
This case attracted several petitions from foreign citizens challenging the basis of their
detention. To prevent a large number of petitions from detainees, the US government came
up with Military Commission Act in 2006 that bars foreign nationals from challenging their
detention that was ultimately held unconstitutional by the US Supreme Court in the case of
Boumediene v Bush. It can be observed that the Supreme Court has generally prioritized
human rights over its national security issues (Wald 2010).

Similarly, the Court of Appeal in Miranda v Secretary of State for the Home Department
found arbitrary ‘stop powers used against journalistic information’ contained under Schedule
7 of the Terrorism Act, 2000 of the UK to violate freedom of expression provided under
Article 10 of the European Convention of Human Rights. In another case of Gillan and

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Quinton v United Kingdom European Court of Human Rights held blanket power to stop and
search under Section 44 of the Terrorism Act, 2000 to violate the right to respect for private
life that later got repealed and replaced by the legislature.

Counter-terrorism measures provide incentives to the government authorities to reinterpret

their law justifying interrogation, detention, and ‘targeted killing’ (Sanders 2017). It provides
immunity and legitimacy to their acts of human rights abuses with the least accountability.
Under its ‘War on Terror’ against the Taliban Government in Afghanistan, the US has denied
applying human rights and humanitarian law to the detainees at Guantanamo Bay and
termed them as “enemy combatant” (Duffy 2005). However, from the International
Humanitarian Law perspective, it can be counter-argued that the US is detaining combatants
by creating a category based on a weak claim supported by reliable facts. They are arrested
for an indefinite period without providing them the rights of prisoners. From the International
Human Rights approach, a State is obliged to fulfill its international commitments over the
persons who are present under its authority and control. This global outreach of the subject
founds its applicability even in the areas beyond national jurisdiction, thus holding the US
responsible for Guantanamo Bay that lies outside US territory.

Counter-terrorism measures are abused on the pretext of discrimination (Kaponyi 2007).

General Assembly Resolution and UN Council on Human Rights Resolution prohibit
discrimination that treats people from one ethnic or racial origin, religion or belief, disability
different from the others. The creation of plausible legality of human rights violations by the
state establishes a requirement to promote human rights (Sanders 2017). Where the UN
General Assembly and Security Council have taken several counter-terrorism measures to
combat terrorism, UN bodies also aim to respect human rights even in emergency cases.
Law is undoubtedly evident that counter-terrorism measures cannot be fulfilled without
considering human rights (Kielsgard 2013). States should respect human rights along with its
counter-terrorism and security measures.

Conclusion

The real issue lies in determining the legality of counter-terrorist measures that occasionally
fall short of the state’s international commitments under its human rights regime. It has been
observed that the absence of any definition of terrorism provides ample scope for the state to
interpret the term ‘terrorism’ with a political bias favoring its interest (Kaponyi 2007). Further,
a State can easily justify its actions in the name of national security that denies human rights
to the individual and ultimately raises questions on the rule of law (Duffy 2005). Under the
case laws, judges have shown an inclination to respect the international commitments on
human rights regime. However, this cannot be said affirmatively for the legislature and
enforcing authorities. It is not the counter-terrorism measures, but their abuse is
problematic. Arbitrary and poorly-implemented counter-terrorism measures have their
consequences. Co-lateral damage must be proportional. Since both counter-terrorism
measures and human rights are important issues for a country; thus, it is essential that a

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balance be struck between them. It should be noted that fight against terror and the
observance of human rights must go hand in hand. The State’s responsibility is to respect
human rights and not use counter-terrorism measures as a justification for their violation.

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