INVESTIGATING THE LEGAL AND ETHICAL IMPLICATIONS OF HUMAN RIGHTS VIOLATION IN THE CONTEXT OF COUNTER-TERRORISM MEASURES

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This article is written by Anuja Bansal of Mangalayatan University, Jabalpur

ABSTRACT

All over the world, governments have implemented a variety of counter-terrorism measures to safeguard national security and protect their citizens in the face of growing terrorist threats on a global scale. While preventing terrorism is a vital goal, it is necessary to consider the legal and moral ramifications of these actions. Striking a balance between preserving security and safeguarding peoples’ basic human rights is crucial. Human rights violations have unfortunately sometimes, been triggered by counter-terrorism activities, creating serious issues that demand investigation and study.

Investigating the legal and ethical implications of human rights violations in the context of counter-terrorism measures is of paramount importance. Examining national legal systems, international human rights law, and ethical standards in detail is necessary to strike a delicate balance between national security and the protection of human rights. To guarantee that counter-terrorism measures are carried out in a way consistent with human rights norms, it is crucial to uphold due process, fairness, proportionality, non-discrimination, transparency, and accountability. Societies can work to effectively combat terrorism while upholding the rights and dignity of all people by addressing these legal and ethical issues.

Keywords: Human Rights Violation, Counter Terrorism, Legal, Ethical, Human Rights, Terrorism, Inspection, Implications

INTRODUCTION

Counter-terrorism measures are essential for protecting national security and preventing acts of terrorism. However, the implementation of these measures often raises significant concerns regarding potential human rights violations. The violation of human rights due to counter-terrorism measures is a deeply concerning issue, encompassing both legal and ethical dimensions. International human rights legislation, which offers a framework for defending people’s inherent dignity and fundamental rights, serves as the legal foundation for evaluating such violations. International conventions, such as the Universal Declaration of Human Rights and various treaties, establish the standards that govern the behavior of states in their pursuit of counter-terrorism objectives. Under international law, violations of human rights, such as arbitrary detention, torture, extrajudicial killings, intrusive surveillance, or restrictions on one’s right to privacy and freedom of expression, may result in serious legal repercussions.

Moreover, each country has its own legal framework governing counter-terrorism measures, which necessitates examining the national legal implications. Governments enact specific laws, regulations, and policies aimed at combating terrorism within their jurisdictions. These frameworks vary across countries but should ideally strike a delicate balance between security concerns and the protection of human rights. The role of courts is pivotal in interpreting and enforcing these laws, ensuring compliance with human rights standards and providing remedies for violations.

Beyond the legal implications, it is equally important to consider the ethical aspects of human rights violations in the context of counter-terrorism policies. The necessity to strike a balance between the preservation of personal values and security requirements gives rise to ethical problems. Proportionality is a core ethical principle that calls for making sure counter-terrorism tactics are appropriate for the problem they are addressing and do not unreasonably violate human rights. To avoid pointless violations, the necessity and efficacy of measures like surveillance, data collecting, and limitations on freedom of expression and assembly must be carefully assessed.

OBJECTIVES

The objective of this article is to comprehensively examine and analyze the complex issues that arise when counter-terrorism efforts infringe upon fundamental human rights, analyze the legal implications of human rights violations, such as arbitrary detention, torture, surveillance overreach, and infringement on privacy and freedom of expression, explore the ethical considerations and dilemmas that emerge when balancing security concerns with the protection of individual rights and values, examine the nature and extent of these violations, considering factors such as arbitrary arrests, due process violations, discrimination, and the impact on vulnerable communities.

WHAT ARE ‘HUMAN RIGHTS’ AND ITS ‘VIOLATION’?

Human rights are fundamental rights and freedoms that are inherently possessed by all individuals, regardless of their nationality, race, religion, gender, or any other status. They are universal, indivisible, and inalienable, meaning they cannot be taken away or forfeited. Human rights are based on the principles of dignity, equality, and respect for the inherent worth and value of every person.

‘Human rights are universal and inalienable. All people everywhere in the world are entitled to them. No one can voluntarily give them up. Nor can others take them away from him or her.’[1] The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, serves as a foundational document that outlines the basic rights and freedoms to which all individuals are entitled. ‘They are documented in the Universal Declaration of Human Rights. Some examples include a right to freedom of expression, and freedom of religion.’[2]

Human rights violations refer to actions or practices that infringe upon and disregard the fundamental rights and freedoms guaranteed to individuals under international human rights law. ‘A human rights violation is the disallowance of any of these basic rights and freedoms. When human rights aren’t protected, or are blatantly disregarded, they are violated.’[3] It is important to note that human rights violations can occur in various contexts, including counter-terrorism measures, armed conflicts, authoritarian regimes, discriminatory policies, or during periods of social unrest. They can have severe consequences, resulting in physical and psychological harm, loss of life, displacement, or the denial of basic human dignity and well-being.

WHAT IS ‘COUNTER-TERRORISM MEASURES’?

‘Terrorism constitutes a real threat to democracy, the rule of law and the enjoyment of human rights.’[4] Counter-terrorism measures refer to the strategies, policies, and actions implemented by governments and law enforcement agencies to prevent, deter, and respond to terrorist activities. These measures are designed to protect national security, ensure public safety, and minimize the risk of terrorist attacks.

Counter-terrorism measures aim to strike a balance between effectively combating terrorism and upholding human rights, democratic principles, and the rule of law. It is crucial for governments to ensure that these measures are conducted within the framework of national and international legal standards, respecting the fundamental rights and freedoms of individuals while addressing security concerns.

COUNTER-TERRORISM MEASURES OR HUMAN RIGHTS VIOLATION

The global menace of terrorism has compelled governments across the world to implement various counter-terrorism measures aimed at safeguarding national security and protecting their citizens. While countering terrorism is an essential imperative, it is crucial to carefully examine the potential risks and implications these measures pose to human rights. There exists a delicate balance between ensuring security and upholding the fundamental rights and freedoms of individuals. Unfortunately, there is a possibility that human rights will be violated when counter-terrorism goals are being pursued, necessitating a thorough examination of this complicated problem.

Democracy and human rights are seriously threatened by terrorism. Although state action is required to deter and successfully sanction terrorist attacks, not all methods are acceptable. States have a strong obligation to uphold the fundamental human rights, which are especially protected by the Universal Declaration of Human Rights, without compromising the general interest of public security and the rule of law.

A variety of human rights, including the right to life, the prohibition against torture and other cruel or inhumane treatment, the right to liberty and security, the right to a fair trial, and respect for private property, are impacted by counter-terrorism measures, as demonstrated by recent operations carried out by a number of states in the context of the so-called “war on terrorism,” including “rendition programmes,” the establishment of “black sites,” and mass surveillance. A variety of human rights, including the right to life, the prohibition against torture and other cruel or inhumane treatment, the right to liberty and security, the right to a fair trial, and respect for private property, are impacted by counter-terrorism measures, as demonstrated by recent operations carried out by a number of states in the context of the so-called “war on terrorism,” including “rendition programmes,” the establishment of “black sites,” and mass surveillance. Giving up human rights in the battle against terrorism is a grave mistake and a pointless move that might aid the terrorists’ cause.[5]

Counter-terrorism measures carry the potential to infringe upon human rights when not carefully implemented or when excessively prioritizing security over fundamental rights. The most prevalent human rights violations in the context of counter-terrorism include arbitrary detention, torture, extrajudicial killings, surveillance overreach, infringements on privacy and freedom of expression, discrimination, and erosion of due process and fair trial rights. These violations can undermine the very principles and values that counter-terrorism aims to protect, eroding public trust, fueling resentment, and potentially radicalizing individuals.

It is imperative to highlight that effective counter-terrorism measures do not necessarily require the sacrifice of human rights. In fact, the protection of human rights can contribute to more effective counter-terrorism strategies by fostering trust, cooperation, and inclusion within society. Human rights compliance enhances legitimacy, strengthens community resilience, and undermines the recruitment narratives of terrorist organizations.

LEGAL IMPLICATIONS

Human rights violations in the context of counter-terrorism measures can have significant legal implications. While it is important for governments to take measures to protect their citizens from terrorism, it is equally important to ensure that these measures are carried out in accordance with international human rights standards.

Governments are bound by international human rights law, which includes treaties and customary law, to respect and protect the fundamental rights and freedoms of individuals. These rights include the right to life, liberty, security, fair trial, freedom from torture, arbitrary detention, and discrimination, among others. Any violation of these rights in the context of counter-terrorism measures can give rise to legal consequences.

The absolute prohibition of torture is a customary norm of international law and is enshrined in various international treaties. Any involvement in or endorsement of torture or cruel, inhuman, or degrading treatment or punishment in the name of counter-terrorism is a violation of human rights law. Perpetrators of such acts can be held criminally liable.

Counter-terrorism measures often involve detaining individuals suspected of involvement in terrorist activities. However, individuals have the right to be protected against arbitrary detention and are entitled to due process of law, including the right to be promptly informed of the charges against them, access to legal representation, and a fair trial. Unlawful or prolonged detention without charges or fair proceedings can lead to legal challenges.

Counter-terrorism efforts often involve surveillance activities to gather intelligence. However, the right to privacy is a fundamental human right. Any surveillance measures must be proportionate, necessary, and conducted within the boundaries of the law, respecting individuals’ privacy rights. Mass surveillance or surveillance without proper legal safeguards can be deemed a violation of human rights.

Counter-terrorism measures should not be carried out in a discriminatory manner. Individuals should not be targeted based on their race, ethnicity, religion, or any other protected characteristic. Discriminatory practices in counter-terrorism efforts can be legally challenged for violating the principle of non-discrimination.

States can be held legally responsible for human rights violations committed by their officials or agents in the context of counter-terrorism. This includes violations carried out by security forces, intelligence agencies, or any other state actors. Victims of human rights violations can seek remedies and bring legal actions against the state.

In cases where human rights violations rise to the level of war crimes, crimes against humanity, or genocide, individuals can be prosecuted under international criminal law. These crimes include acts such as torture, enforced disappearances, extrajudicial killings, and sexual violence committed as part of counter-terrorism measures.

‘Apart from Universal Declaration of Human Rights, 1948, there are other some important international normative framework relating to human rights, best practices are international covenant on civil and political rights, Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment, 1984; Convention on the Rights of the Child, 1989; United Nations Code of Conduct for Law Enforcement Officials.’[6]

It is crucial for governments to strike a balance between countering terrorism and protecting human rights. Any violations should be thoroughly investigated, perpetrators held accountable, and appropriate remedies provided to victims.

ETHICAL IMPLICATIONS

The ethical implications of human rights violations in the context of counter-terrorism measures are significant and complex. While it is important to address and prevent acts of terrorism, it is equally crucial to uphold and protect human rights.

Counter-terrorism measures that involve torture, extrajudicial killings, or cruel, inhumane, or degrading treatment violate the fundamental right to life and physical integrity. Any violation of these rights raises serious ethical concerns.

Counter-terrorism efforts should uphold the principle of “innocent until proven guilty” and ensure fair and transparent legal processes. Unlawful detentions, secret trials, and denial of due process undermine the presumption of innocence and the right to a fair trial.

While surveillance can be important for national security, indiscriminate and invasive surveillance measures can violate individuals’ right to privacy. Ethical concerns arise when counter-terrorism measures compromise privacy rights without adequate justification and oversight.

Counter-terrorism measures should not unduly restrict freedom of expression and association. Suppressing dissent or punishing individuals solely based on their opinions can infringe upon the rights to free speech and peaceful assembly.

Counter-terrorism efforts must avoid discrimination and profiling based on religion, ethnicity, nationality, or other protected characteristics. Singling out individuals or communities without valid grounds perpetuates stereotypes, fosters distrust, and undermines social cohesion.

The use of force in counter-terrorism operations should be proportionate and avoid excessive collateral damage. Unrestrained use of force, leading to civilian casualties and destruction of infrastructure, raises ethical concerns.

Overly aggressive counter-terrorism measures can have unintended consequences, such as alienating communities, fueling resentment, and potentially contributing to radicalization. Ethical considerations call for a comprehensive approach that addresses root causes and works towards long-term solutions.

It is essential to ensure transparency in counter-terrorism operations and hold accountable those responsible for human rights violations. Lack of transparency erodes public trust and makes it difficult to assess the ethical implications of these measures.

Addressing these ethical implications requires striking a delicate balance between national security imperatives and the protection of human rights. An effective counter-terrorism strategy should prioritize respect for human rights, adhere to international legal frameworks, and promote dialogue, inclusivity, and cooperation.

The fundamental principles of human rights, such as the right to life, liberty, and security of person, are enshrined in international law and serve as the cornerstone of a just and equitable society. However, counterterrorism measures often require governments to adopt exceptional measures, including enhanced surveillance, prolonged detentions, and restricted freedoms, which can infringe upon these rights. The ethical dilemma arises from the tension between protecting individual rights and ensuring collective security.

One crucial aspect of counterterrorism measures that warrants ethical scrutiny is the erosion of privacy rights. Increased surveillance, both online and offline, can encroach upon personal liberties and intrude upon individuals’ private lives. Mass surveillance programs, often justified as necessary to identify potential threats, can lead to a chilling effect on free expression and the right to privacy, as citizens may feel compelled to self-censor for fear of being unjustly targeted. Striking the right balance between effective counterterrorism and safeguarding individual privacy is a challenge that necessitates careful consideration.

Counter-terrorism measures can lead to arbitrary arrests, prolonged detentions without trial, and the denial of due process rights. When individuals are held indefinitely without charge or subjected to secret trials, it undermines the principles of fairness and justice. Innocent people may be wrongfully targeted or wrongly identified as potential threats, resulting in grave injustices. Striking a balance between swift action to combat terrorism and protecting the rights of the accused is crucial to maintaining ethical integrity in counterterrorism efforts.

The ethical implications of human rights violations in the context of counterterrorism measures demand careful examination. While the imperative to protect citizens from acts of terrorism is unquestionable, it is crucial that governments adhere to the principles of human rights and ethical conduct in their pursuit of security. Balancing security and individual rights necessitate the development of robust legal frameworks, oversight mechanisms, and accountability measures to prevent the abuse of power. By upholding human rights as a fundamental value, societies can demonstrate their commitment to justice, fairness, and the preservation of individual freedoms in the face of security challenges.

CASE LAWS

India has faced significant challenges in balancing counterterrorism measures with human rights protection. Several legal cases have shed light on human rights violations in the context of counter-terrorism. Here are a few notable examples:

Kartam Joga Case: In the state of Chhattisgarh, the Kartam Joga case highlighted the issue of human rights violations in the name of countering Maoist insurgency. Kartam Joga, a tribal activist, was arrested in 2011 on charges of being a Maoist sympathizer. However, he was held in custody without trial for over two years. The Supreme Court of India intervened and ordered his release, stating that prolonged detention without trial violated his fundamental rights to liberty and due process.

Salwa Judum Case: Salwa Judum was a government-backed militia formed to combat Maoist insurgency in the state of Chhattisgarh. However, the militia faced accusations of human rights abuses, including forced displacement, torture, and extrajudicial killings. In 2011, the Supreme Court of India declared the actions of Salwa Judum unconstitutional and called for the disbandment of the militia. The court emphasized that counterterrorism efforts should not come at the cost of human rights violations.

Ishrat Jahan Encounter Case: In 2004, Ishrat Jahan, along with three others, was killed in an encounter by the Gujarat Police. Initially, the police claimed that they were members of a terrorist group planning an assassination. However, subsequent investigations raised concerns about the encounter’s authenticity and suggested that it may have been a staged extrajudicial killing. The case highlighted the need for accountability and proper investigation to prevent human rights violations in the name of counter-terrorism.

Armed Forces (Special Powers) Act (AFSPA) Cases: The AFSPA, enacted in 1958, grants special powers to the armed forces in areas affected by insurgency. The act has faced criticism for its provisions that grant immunity to armed forces personnel from prosecution for actions committed in the line of duty. Numerous cases of human rights violations, including extrajudicial killings and torture, have been reported in states like Jammu and Kashmir and Manipur. These cases have sparked debates about the need to repeal or amend the AFSPA to ensure accountability and prevent human rights abuses.

Rohingya Deportation Case: The issue of deporting Rohingya refugees, who fled persecution in Myanmar, has raised human rights concerns. The Indian government has argued that some Rohingya individuals may have links to extremist groups, justifying their deportation on national security grounds. However, human rights organizations have raised objections, highlighting the principle of non-refoulement and the risk of subjecting the Rohingya to further persecution. The case raises questions about balancing national security concerns with the protection of refugee rights.[7]

These legal cases reflect the ongoing challenges India faces in striking a balance between counter-terrorism measures and human rights protection. The Indian judiciary has played a crucial role in upholding human rights and providing redress for victims of human rights violations. However, continued efforts are needed to strengthen legal frameworks, ensure accountability, and promote a human rights centred approach in the context of counter- terrorism.

CONCLUSION

In conclusion, the complex issue of human rights violations in the context of counterterrorism measures demands ongoing attention and consideration. While governments have a legitimate duty to protect their citizens from terrorist threats, it is essential to ensure that such efforts are pursued within the bounds of ethical conduct and respect for fundamental human rights. human rights violations in the context of counterterrorism measures present profound ethical dilemmas. While the threat of terrorism is real and requires decisive action, it is imperative that governments uphold human rights as they pursue security objectives. By ensuring the protection of privacy, prohibiting torture, respecting due process rights, and establishing accountability mechanisms, governments can strike a balance between security and individual liberties. Only by upholding the principles of human rights can societies foster a just and secure environment that upholds the dignity and freedom of all individuals.

[1] Universality and Inalienability, UNICEF, available at https://www.unicef.org/child-rights-convention/what-are-human-rights, last seen on 17 July 2023.

[2] About Human Rights, Prisoners of Conscience, available at https://prisonersofconscience.org/about-poc/about-human-rights/?gclid=Cj0KCQjw8NilBhDOARIsAHzpbLCYq_7FbV-h8QWRuaAXs2ESl6djip3R5rHUikDA1UoSxkOwxji5ivEaAtYXEALw_wcB, last seen on 18 July 2023

[3] ibid

[4] Combating terrorism, Council of Europe Portal, available at https://www.coe.int/en/web/counter-terrorism, last seen on 17 July 2023.

[5] Counter terrorism and human rights protection, Commissioner for human rights, available at https://www.coe.int/en/web/commissioner/thematic-work/counter-terrorism#:~:text=The%20operations%20conducted%20by%20a,measures%2C%20notably%20the%20right%20to, last seen on 18 July 2023.

[6] Human rights and Terrorism can be study by following case laws, Legal services India, available at https://www.legalservicesindia.com/article/1735/Human-Rights-and-Terrorism.html, last seen on 18 July 2023.

[7] Human rights and Terrorism can be study by following case laws, Legal services India, available at https://www.legalservicesindia.com/article/1735/Human-Rights-and-Terrorism.html, last seen on 18 July 2023.