15.3 Terrorism, Counter-Terrorism, and Human Rights

Terrorism poses a grave threat to human rights, endangering lives and freedoms. Governments' counter-terrorism efforts, while necessary, often infringe on civil liberties through surveillance, detention, and legislative overreach. This creates a complex balancing act between security and individual rights.

The global fight against terrorism raises critical questions about due process, privacy, and discrimination. As states expand their powers, courts and international bodies struggle to maintain human rights standards. Balancing effective counter-terrorism with respect for fundamental freedoms remains a key challenge in the 21st century.

Terrorism's Impact on Human Rights

Threats to Fundamental Rights

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  THE GRANDMA'S LOGBOOK ---: THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) View original

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• Terrorism endangers core human rights outlined in the Universal Declaration of Human Rights (right to life, liberty, personal security)
• Counter-terrorism measures can unintentionally violate civil liberties
  • Infringes on freedom of expression, privacy, due process
  • Often lacks adequate safeguards
• Extraordinary rendition, secret detention, enhanced interrogation techniques violate international human rights standards
• Targeted killings and drone strikes raise complex legal and ethical questions
  • Challenges right to life
  • Complicates principle of distinction in armed conflict

Surveillance and Legislative Overreach

• Mass surveillance programs compromise privacy rights and freedom of association
  • Potentially chills free speech and political dissent
• Expansive counter-terrorism legislation leads to overreach
  • Broadens definition of terrorism
  • Expands state powers
  • Criminalizes legitimate political activities (protests, activism)
  • Suppresses minority groups
• Disproportionate impact on marginalized communities
  • Exacerbates existing inequalities and discrimination
  • Targets religious or ethnic minorities (Muslim communities in Western countries)

Balancing Security vs Freedoms

Tension Between State Power and Individual Liberty

• Fundamental challenge for liberal democracies in counter-terrorism efforts
• National security exceptionalism doctrine argues for expanded state powers during emergencies
  • Used to justify limitations on civil liberties after major attacks (USA PATRIOT Act)
• Principle of proportionality requires restrictions on rights to be:
  • Necessary
  • Proportionate
  • Pursuing a legitimate aim
• Judicial oversight crucial for checks and balances on executive power
  • Courts review legality and constitutionality of counter-terrorism measures

Challenges to Due Process

• Use of secret evidence and closed material procedures in terrorism cases
  • Raises concerns about fair trial rights
  • Violates principle of equality of arms in legal proceedings
• Preventive detention and control orders challenge traditional criminal justice norms
  • Undermines presumption of innocence
  • Detains individuals without charge (Guantanamo Bay)
• Concept of securitization frames issues as existential threats
  • Potentially justifies extraordinary measures outside normal political processes
  • Example: framing immigration as a security threat to justify stricter border controls

Counter-terrorism Effectiveness and Legitimacy

Assessing Strategy Impacts

• Evaluate counter-terrorism effectiveness beyond just preventing attacks
  • Consider impact on social cohesion
  • Assess effects on rule of law
  • Examine influence on democratic values
• Community-based approaches to countering violent extremism (CVE) raise concerns
  • Risk of surveillance and profiling of specific communities
  • Potential stigmatization of certain groups (Muslim youth in CVE programs)
• Administrative measures in counter-terrorism impact rights
  • Asset freezing affects property rights
  • Travel bans restrict freedom of movement
• Deradicalization and rehabilitation programs balance competing interests
  • Address security concerns
  • Respect individual autonomy and freedom of thought

Legitimacy and Compliance

• Counter-terrorism legitimacy linked to human rights compliance
  • Strategies perceived as fair by affected communities more effective
• Non-refoulement principle prohibits returning individuals to torture risk
  • Challenges certain counter-terrorism practices (extraordinary rendition)
• Use of military tribunals or specialized terrorism courts raises concerns
  • Questions judicial independence
  • Potentially violates right to fair trial by impartial tribunal (Guantanamo military commissions)

International Law in Counter-terrorism

UN Framework and Treaty Obligations

• UN Global Counter-Terrorism Strategy emphasizes human rights and rule of law
• Key treaties provide framework for assessing counter-terrorism legality
  • International Covenant on Civil and Political Rights (ICCPR)
  • Convention Against Torture (CAT)
• Non-derogability principle prohibits suspension of fundamental rights
  • Applies even during public emergencies or security threats
  • Examples: prohibition of torture, right to life
• UN Security Council counter-terrorism resolutions criticized
  • Resolution 1373 potentially undermines human rights protections
  • Lack of human rights safeguards in implementation by states

Monitoring and Jurisprudence

• UN Special Rapporteurs and treaty bodies provide oversight
  • Monitor and report on human rights violations in counter-terrorism context
  • Offer guidance on human rights-compliant practices
• Regional human rights systems develop significant case law
  • European Court of Human Rights rulings on counter-terrorism measures
  • Inter-American Court decisions on state of emergency powers
• Jus cogens norms establish peremptory standards in international law
  • Prohibition of torture cannot be derogated from in counter-terrorism
  • Challenges practices like extraordinary rendition or enhanced interrogation