HUMAN RIGHTS CONSERVATION AND THE WAR ON TERROR By - Rekha Kumari
HUMAN RIGHTS CONSERVATION AND THE WAR ON TERROR
Authored
By - Rekha Kumari
Research Scholar,
Department of Laws, BPSMV,
Sonipat, (neely1234@gmail.com)
Abstract
Acts of war or terrorism challenge the human rights framework
almost to the point where it seems to collapse. It is hard to see any place for
human rights when human life is deliberately targeted, or where it is seen as
collateral damage in the course of mass bombing campaigns, which either
directly or indirectly lead to sickness, disease, suffering, destruction of
homes, and death. In times of war, particularly wars which last for years on
end, every human right appears to be affected adversely. Health systems break
down, education suffers, and home, work, supplies of food and water, and the
legal system, freedom of the press and free speech, and accountability for
abuses by the state or by the enemy state all see restrictions, if they do not
disappear completely. However, poor protections were in peacetime, the rights
of children, women, minority groups and refugees will almost certainly be
poorer still in times of war.”
War and terrorism are indeed a breakdown of humanity, acts which seem to
undermine and sideline the values at the heart of human rights and the legal
system which protects them. However, even in the midst of such a breakdown,
human rights continue to operate, albeit in a weakened state, and although they
cannot fix all evils, they can provide some minimal protection and some hope
for justice.”
Keywords: Human Right, War, Conflict,
Terrorism, Justice, State
Introduction
The protection offered by the human rights conventions does
not cease in case of armed conflict[1].
- International Court of Justice
Wars and national emergencies allow for states to derogate from – or
temporarily put aside – some of their human rights commitments. However,
certain human rights, such as the right to life or the right to be free from
torture, inhuman and degrading treatment can never be put aside. These are
regarded as so important and so fundamental that they should be observed even
when a state's security is at risk.”
A judgment of the European Court of Human Rights in 2011[2]
(Al-Skeini and Others v. the UK) found that the United Kingdom had been in
violation of Article 2 of the European Convention on Human Rights, providing
for the right to life, in its treatment of a number of civilians while carrying
out security operations in Basra, Iraq. The case was the first of its kind in
finding that the European Convention applied in times of war, in foreign
territories, and over the whole region for which a signatory to the Convention
had effective control. Other cases have found that the treatment given to
prisoners in detention camps amounted to torture.”
Before discussing whether it is necessary to sacrifice the human rights
of a few select individuals to eradicate terrorism, basic theories of human
rights have to be evaluated against the backdrop of the Declaration of Human
Rights 1789 and The Universal Declaration of Human Rights 1948. It is also
required to trace its origins and study the works of John Locke, Rousseau,
Voltaire and other philosophers who postulated that it is the inherent right of
a man to be granted his free will. Whether the declarations were practicable or
not is also a matter of study and speculation, more so about counter terrorism
practices. It needs to be ascertained whether terrorism can be treated with
justice alone or are more stringent and violent means necessary (Clapham, 2007)[3].”
As opposed to the basic rights of a man, we have certain state approved
rights such as the right to a lawyer or a free trial. We need to differentiate
between these two. Every individual that is born has the right to a secured
life where he can exercise his free will in such a way as to not hurt other’s
right to do the same. As is mentioned in The Declaration of Human Rights 1789
articles 5 and 6, the law is an expression of the general will and that the law
can prohibit actions that are hurtful to the society, and every member of the
state is granted active participation in the legal framework either through
representation or personally (Freeman, 2002)[4].”
These are human rights, which have been evolved by the consensus built on
arguments within the society for a better framework for governance. However,
the inherent right of man is to a dignified, secured, liberal life. Locke
mentions that every individual that is born is born with a mind that is a blank
slate. Rousseau believed in the basic goodness of man. Coming back to article 1
of The Universal Declaration of Human Rights 1948, it states that all human
beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of
brotherhood. (UN.org; 2008-2009).”
When war considered as
Terrorism?
In many ways war and terrorism are very similar. Both involves an act of
extreme violence, both are motivated by political, ideological or strategic
ends, and both are inflicted by one group of individuals against another. The
consequences of each are terrible for members of the population –whether
intended or not. War tends to be more widespread and the destruction is likely
to be more devastating because a war is often waged by states with armies and
huge arsenals of weapons at their disposal. Terrorist groups rarely have the
professional or financial resources possessed by states.”
Apart from the methods used and the extent of the violence, however, war
and terrorism are also seen differently by international law. The differences
are not always clear-cut and even experts may disagree about whether a violent
campaign counts as terrorism, civil war, insurgency, self-defence, legitimate
self-determination, or something else.[5]”[6]
Problems in Defining War
Wars are sometimes defined by the fact that they take place between
nation states: but where does that leave civil war, or the so-called War on
Terrorism? Sometimes a formal declaration of war is taken as defining an act of
war, but that excludes low-level bombing campaigns which take place over a
number of years, such as the United States' attacks on the borders of Pakistan
or in the no-fly zones declared over Iraq in the 1990s.”
Should a definition of war include economic or trade wars, both of which
may be enormously destructive in terms of human life? Are sanctions a form of
war? UNICEF estimated that the sanctions on Iraq in the 1990s led to the deaths
of over half a million children (and many adults).”
What is terrorism?
Terrorism is another of those terms that everyone seems ready to use, but
no-one can agree on an exact definition. Even the experts continue to argue
about the way the term should be applied, and there are said to be over a
hundred different definitions of terrorism, not one of which is universally
accepted.”
This lack of agreement has very practical consequences: to take just one
example, the UN has been unable to adopt a convention against terrorism,
despite trying for over 60 years to do so, because its member states cannot
agree on how to define the term. The UN General Assembly tends to use the
following in its pronouncements on terrorism:”
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.[7]”
The Sicarii, otherwise known as the Zealots, were a Jewish
movement in the 1st century who tried to expel the Romans from Palestine. They
used ruthless methods, including mingling in crowds at public gatherings and
stabbing their victim before disappearing back into the crowd.”
The Assassins were a medieval Shia Muslim sect who aimed to purify Islam,
and targeted prominent religious leaders, using similar methods to the Sicarii
in order to gain publicity.”
The Thugi (Thuggee) were an Indian group sometimes classified as a cult
or sect, which operated over the course of about 600 years, brutally murdering
travellers by strangulation, and according to very specific rules. They are the
longest lasting such group, and were eliminated in the 19th century largely as
a result of recruiting informants from within the group.”
International Law on Human
Rights Conservation in Times of War
In Today’s world when one cannot trust the person standing next to him we
need to re-evaluate these theories. The act of terrorism has shaken people’s
beliefs. How do we treat the perpetrators of such barbaric acts, who are not
endowed with any reason or conscience? How do we ensure that the blank slate is
not filled with corrupt ideas? How can we stop these impressionable minds from
being corrupted? These people do not believe in the human rights of others and
are fundamentally opposed to it, which is what their handiwork implies. So is
it necessary to protect theirs? Is there a need to bypass these laws section of
people to establish the good for a larger section of the society? (Ishay,
2004).[8]”
The Mahatma said, “An eye for an eye would make the whole world go
blind.” (Gandhi, 2001)[9] He
was of course dealing with an educated enemy, one that was at least ready to
sit down for talks and reason. They and their acts were at least visible to
others. The fact that there were human rights violations under their regime and
that they were largely let go without any punishment is another fact. Anyways
the Indians found solace in their freedom. However, how do we reason with
fanatic’s hell bent on destruction? Desperate situations call for desperate
measures. The bite is always more dangerous than the bark. In addition,
whenever anyone tries to does that naysayer shout aloud condemning these
measures. If the human rights of the perpetrators are to be maintained, are we
not giving them rope? The fact that they will not hang themselves is another
matter.”
We have international organizations crying aloud to protect human rights
of these people. Are not the acts of terrorizing innocents, killing
irresponsibly, man woman and child, abuse of human rights? In addition, should
not the perpetrators of such ghastly acts be held accountable and handed exemplary
punishments? How can we have the same legal framework for protecting human
rights of the people who in the first place abused the right of so many victims
to a secure, free, liberal life? Should we fight terror with terror? Is it the
time to ensure that the terrorists have been terrorized themselves? These are
moral questions and the response of people would vary according to their own
judgments’ and conscience (Donnelly, 1989)[10].”
Article 5 of The Universal Declaration 1948 states that ‘No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment’. (UN.org; 2008-2009) What if the only resort to make the terrorists
admit their crimes is by torture and not general reasoning? They may choose to
remain silent. Then they go scar free if no other evidence exists. The fact
that these declarations have to be followed can also impair the speed of such
inquisitions of these crimes. In addition, if exemplary punishment were not
meted out to such individuals they would be bracketed in the same category as a
petty thief. In addition, that would be a shame!”
Article 10 of The Universal Declaration 1948 states that, ‘Everyone is
entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of
any criminal charge against him’. (UN.org; 2008-2009) Nobody sympathizes with
the terrorists and everyone has a negative opinion about them. So how can an
impartial tribunal are constituted because the tribunal in itself would be
prejudiced beforehand.”
It is necessary to ensure that some states do not intentionally draft
draconian rules to marginalize a section society based on their religious
belief, colour or creed but the proven guilty should be punished. To fight
terror a gloves off approach has to be adapted (Clapham, 2007).”
Article 12 of the Declaration of Human rights 1789 states that the
security of the rights of man and of the citizen requires public military
forces. These forces are, therefore, established for the good of all and not
for the personal advantage of those to whom they shall be entrusted.
(Lafayette, 1789)[11]
Now, if the military forces are burdened with legalities to maintain human
rights it may act as an assurance to the terrorists that despite of their acts
they would be really safe and free of harm as no one can torture them. This can
be debilitating to the confidence of the military forces and the public. It is
necessary to establish that the military does not misuse its powers but about
fighting terror, they need to be given a free hand. Additionally the terrorists
may choose to with hold information that can result in future actions against
these organizations they are affiliated to.[12]”
There has been a lot of clamour as to whether the death sentence be
abolished or not. Article 11 (2) of the Universal Declaration of Human Rights
states that, No one shall be held guilty of any penal offence on account of any
act or omission which did not constitute a penal offence, under national or international
law, at the time when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the penal offence was committed.
(Bossuyt, 1987)[13]
Once a proven terrorist is to be punished how we can ascertain what his
punishment should be. Doesn’t the life term seem an easy escape to such an
offender? What it does is prevent him from committing such a crime again but it
does not make a future assassin cringe at the consequences of his offence. It
would seem a small price to pay. He would be free to live his life behind bars,
meet his family occasionally. The injustice is done to the victim’s family who
would never get to see their loved one again (Ishay, 2004).”
Article 11 of the declaration of human rights 1789 states that, ‘The free
communication of ideas and opinions is one of the most precious of the rights
of man’. Every citizen may, accordingly, speak, write, and print with freedom,
but shall be responsible for such abuses of this freedom as shall be defined by
law (Lafayette, August 26, 1789). It is the need of the hour to crack down on
the ideology of terrorism and its preachers. The one who corrupt the minds of
impressionable youth and turn them into foot soldiers of this barbaric
ideology. They are to be held responsible and further growth of this cancer has
to be stopped and to do that we need to crack down and prevent the spread of
this ideology.”
In addition, to do that the very apostles of these ideas are to be
stopped from publicly opinionating or spread their opinions through any form of
the media. They cannot be allowed to preach hatred in any way. Any public
congregation meant to spread this ideology has to be stopped. It can be
interpreted as misuse of power or human right violation but such unavoidable
have to be introduced to cure the cancer. That may ensure that these
organizations at least would find it hard to find new recruits (Freeman, 2002).”
The declaration of 1789 also emphasized that a society in which the
observance of the law is not assured, nor the separation of powers defined, has
no constitution at all. (Lafayette, August 26, 1789) Hence, it is necessary to
ascertain that in any state, the judiciary is maintained at its position and if
the framework does not invoke respect in the mind of the offenders then
stricter norms are to be formed to ensure compliance for the same for these
offenders. Currently the world is in a state of war against the terrorists and
under these circumstances the militia should be allowed to interrogate any
organization or an individual or his associates that it suspects to be
involved. Depending on the result of the investigation, the law can take its
own course.”
However, if there is no co-operation between the two involved parties the
militia should be allowed to resort to any means necessary to extract
information or stop an unlawful activity, if there exists, substantial proof of
the party’s involvement. The militia here is not dealing with ordinary citizens
but potential terrorists and may sometimes be required to act outside of law in
order to maintain decorum and protect the rights of others. In these times its
hard to say whether one can trust anyone, so, detailed and extensive combing
operations are required and the general public should co operate with such
agencies in their operations. Only the guilty have something to hide (Donnelly,
1989).”
Article 3 of the declaration of 1948 states that everyone has the right
to life, liberty and security of person. (IPPF; 2007)[14]
Additionally, no one has the right to take it away and anyone trying to take it
away has to be brought to book. The very act of terrorism has shaken man’s
faith in another man. This cannot be allowed to happen and it is to be ensured
that anyone found guilty of crimes against humanity should be punished. Every
newborn in this world has the right to a better, secure future and the
warmongers cannot be allowed to take that right away from them or to pollute
their minds with hatred. It is time that harsh actions are taken. It may draw
dissension from certain corners but that is the only way to ascertain that a
man’s belief in the basic goodness of another man is restored.”
The Use of Force
in International Law
International law covers a number of different cases involving the use of
force by states. Sometimes – as in the quote at the start of the chapter – the
law applies to cases when one state uses or threatens force against another
state. Such cases are normally classed as wars, and are regulated by the UN
Charter and the Security Council. Sometimes the law applies to the way force is
used in the course of war – whether legal or illegal. This is generally the
area of international humanitarian law. Even while a war is taking place,
however, human rights law continues to function, although for certain rights,
restrictions by the state may be more permissible than they would be in peace
time.”
UN Charter, Kellogg-Briand
Treaty
The High Contracting Parties solemnly declare in the names of their
respective peoples that they condemn recourse to war for the solution of
international controversies, and renounce it, as an instrument of national
policy in their relations with one another.”
From the Kellogg-Briand Pact (also known as the General Treaty for the
Renunciation of War, or the Pact of Paris)”
As the most grandiose act in a series of peacekeeping efforts after the
First World War , the Kellogg-Briand Pact was signed by 15 states in 1928, and
later on by 47 others. Although the Treaty did not prevent later military
actions between signatories, nor the eruption of the Second World War, it was
important because it established a basis for the idea of crimes against peace
and thus played a central role at the Nuremberg Trials. According to the
Nuremberg (or Nürnberg) Principle 6, crimes against peace include the planning,
preparation, initiation, or waging of wars of aggression, or a war in violation
of international treaties[15].”
After the Nuremberg Trials, the Charter of the United Nations became the
key international treaty regulating member states' use of force against each
other. The Charter does not forbid war completely: it allows, in certain
tightly defined circumstances, states to engage in war where this is necessary
for them to defend themselves. Even such wars of self-defence, however, must be
approved by the UN Security Council, except in rare cases where immediate
action is necessary and there is insufficient time for the Security Council to
meet.”
Responsibility to Protect
(R2P)
In recent years, some countries have pushed for the idea that where people
are suffering grave abuses at the hands of a state – for example, genocide is
threatened – the UN should have the power, and the obligation, to step in to
protect the people. This has included the possibility of military action
against the state responsible. The genocide in Rwanda, where the international
community failed to intervene, sparked the debate. The war in Kosovo was seen
as one of the first examples of humanitarian intervention by military means and
in 2011, NATO's military intervention in Libya was based on a similar
principle.”
The idea of R2P is not uncontroversial. Genocide and the other acts
included are serious and terrible acts. However, critics have argued that R2P
may be used as a pretext and some military interventions have not really been
based on the likelihood of mass atrocity crimes but have been more political in
nature. Many mass atrocity crimes do not appear to evoke R2P, and some of those
where intervention has taken place have seemed less serious in terms of the
dangers people face. Even the Responsibility to Protect involves the idea that
intervening states should explore all other possible means before undertaking
military action. It is not always clear that these avenues have been explored.
Conclusion
Every individual that is born has the right to a secured life where he
can exercise his free will in such a way as to not hurt other’s right to do the
same. A large number of factors pose threat to human
life and create a feeling of insecurity among the population, resulting in a
disruption in personal and social life. Thus, the objectivity of law is the
protection and sustenance of public safety and conservation of human
rights. It should be remembered that the
disaster of 9/11 took place when the terrorists took advantage of the American
social way of life where the number of domestic frequent fliers is high enough
to suffer a low security system. The same is true about London underground rail
blast. In both cases, the terrorists took advantage of the counties’ way of
social life and it would be impossible to alter this way of life putting
security as an alibi where the menace is organized by a fundamentalist
motive. However, to impose public safety sometimes human rights clauses are
violated. War and terrorism are indeed a breakdown of humanity, acts which seem
to undermine and sideline the values at the heart of human rights and the legal
system which protects them. Although they cannot fix all evils, they can
provide some minimal protection and some hope for justice.
[1]Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion of the International Court of Justice of 9 July 2004, para. 106.
[2]Al-Skeini and Others
v. the United Kingdom, European Court of Human Rights Grand Chamber
(Application no. 55721/07), 7 July 2011;
http://www.bailii.org/eu/cases/ECHR/2011/1093.html
[5]Al-Skeini and Others
v. the United Kingdom, European Court of Human Rights Grand Chamber
(Application no. 55721/07), 7 July 2011;
http://www.bailii.org/eu/cases/ECHR/2011/1093.html
[6]Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion of the International Court of Justice of 9 July 2004, para. 106.
[7]1994 United Nations
Declaration on Measures to Eliminate International Terrorism annex to UN
General Assembly resolution 49/60 , Measures to Eliminate International
Terrorism, of December 9, 1994
[11]Lafayette, Marquis de; Murphy,
Gerald; 1789; Declaration of the Rights of Man and of the Citizen; Cybercasting
Services Division of the National Public Telecomputing Network (NPTN);
[12]Lafayette, Marquis de; 1789;
Declaration of the Rights of Man and of the Citizen; Approved by the National
Assembly of France, 1789; hrcr.org; Web.
[13]Bossuyt, Marc J; 1987; Guide to
the travauxPréparatoires of the International Covenant on Civil and Political
Rights; MartinusNijhoff Publishers
[15]1994, United Nations
Declaration on Measures to Eliminate International Terrorism annex to UN
General Assembly resolution 49/60 , Measures to Eliminate International
Terrorism, of December 9, 1994