Protecting Human Rights in the Fight against Terrorism

Author(s): Diana Trifu | Published in: “CARMAE” | Date: June 30, 2015

“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.” – Former UN Secretary General, Kofi Annan (2003)^[1]

In the recent wake of terrorist attacks in France and the ensuing police crackdown on terrorist sleeper cells in Belgium, there is an ever growing concern/fear of terrorist activity in Europe. What most countries view most worrisome is the fact that these radical Islamists are not immigrants targeting European countries in an effort to punish the “infidels”, but rather European citizens.

As a result of an ever growing fear of such terrorism, European countries seek to sweep new powers in order to curb the threat of terrorism. The main areas targeted are Internet, as a conductive element for the promotion and dissemination of radical Islamism as well mobile phone networks. Furthermore, it targets the restriction of the right of movement, as a protective measure against homegrown terrorism.

The so-called “big brother” laws by which the intelligence services would have easier access to possible terrorists have raised issues of concerns within the civil society and human rights circles Europe-wide, being seen as pretexts for mass surveillance of citizens. Furthermore, discussions on the possibility to restrict movement rights for citizens suspected of terrorist activity and strip convicted terrorists holding double citizenship of their French citizenship, has sparked a nationwide debate on whether the encroachment of certain rights in the name of the fight against terrorism goes against the very principles of these rights.

The two main issues on the European agenda are the hampering of travel movements of possible terrorists, this category encompassing both EU nationals and foreign fighters and developing measures able to counter radical Islamist propaganda,^[2] like the one aggressively implemented by ISIL.

The question that arises is whether, in the context of an ever increased focus on human rights, these encroachments on citizens’ rights are proportionate. While European civil society argues against such measures, European political parties accept it, provided supplementary safeguards are established. Protection of individual freedoms within the framework of counter terrorism measures is of utter importance, as it is specified in different resolutions of the UN General Assembly and the Human Rights Council.

As temporal measures in a counter-terrorism plan, such encroachments could be an effective means of early identification of possible terrorist or threats, and as a result States would accomplish their duty of protecting human rights.^[3] In terms of Internet data retention laws, the most potent argument in favour is that websites and social media pages are seen as public space and as a result all information from these sources can be retained without assuming it to be a violation of privacy.

Terrorism impacts in a negative manner the enjoyment of a variety of human rights, and targets the destruction of the rights to life, liberty and physical integrity.^[4] Therefore, in the neverending war on terror, the encroachment of certain rights is seen as a necessary step in order to safeguard the democratic institutions and the rule of law. Particularly since, according to international and regional human rights law, “States have both a right and a duty to protect individuals under their jurisdiction from terrorist attacks”.^[5]

Even for the sole purpose of preventing terrorism, restricting human rights should be carefully considered and a basic standard for those rights should be respected. Moreover, interpretation of international human rights law maintains that the least intrusive measure should always be sought and implemented^[6] as presented in the Report Of The Special Rapporteur On The Promotion And Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism.

Moreover, the creation of additional safeguard measures in response to laws encroaching on individual freedoms is necessary as an integral part of a democratic system. According to Article 17 of the Covenant on Civil and Political Rights, perhaps the most important legally binding provision guaranteeing citizens’ right to privacy, citizens have “the right to the protection of the law against unlawful or arbitrary interference with their privacy”.^[7]

Such laws, in an abuse of power, could provide public authorities with the opportunity to implement mass surveillance and to encroach even further on the rights of citizens. Following the Charlie Hebdo attacks, a series of arrests have taken place, the main charge being “condoning terrorism”.^[8] Even the most strict of anti-terrorist laws have the potential to cause violations of individual freedoms if cases are not analyzed on an individual basis and if effective safeguard measures are not in place. In consequence, all actions taken within the framework of counter terrorism should have a clearly defined scope, judicial authorization and be analyzed on an individual basis, so as to prevent discrimination, racial profiling and xenophobia.

While State have the obligation to protect its citizens from terrorism, it is highly important how this protective role is being assumed. Whether by restricting citizens rights or by violating such rights, it is necessary to acknowledge and implement such principles as proportionality, legality and non-discrimination. Restricting rights as part of the fight against terrorism, should be a last resort and special measures to ensure its effectiveness and temporality should be put in place.
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Notes
[1] Countering Terrorism, Protecting Human Rights. OSCE, ODIHR, 2007.
[2] Simon, Frédéric. ‘From 9/11 To Charlie Hebdo: The EU’S Response To Terrorism’. EurActiv.com 4 January 2015. Source: http://www.euractiv.com/sections/eu-priorities-2020/911-charlie-hebdo-eus-response-terrorism-311264.
[3] I refer here to absolute rights such as Article 3 of the UDHR: Everyone has the right to life, liberty and security of person and Article 5: No one shall be subjected to torture or to cruel, inhuman and degrading treatment or punishment. Source: http://www.un.org/en/documents/udhr/.
[4] Human Rights, Terrorism And Counter-Terrorism. Office of the United Nations High Commissioner for Human Rights, pp. 7, 2015. Source: http://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf.
[5] Ibidem. p. 8.
[6] Report Of The Special Rapporteur On The Promotion And Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism, Martin Scheinin, A/HRC/13/37. Human Rights Council, 2009. Source:
http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-37.pdf.
[7] Report Of Special Rapporteur On The Promotion And Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism, A/69/397. 23 September 2014. Source: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N14/545/19/PDF/N1454519.pdf?OpenElement.
[8] Faure, Sonya, and Frantz Durupt. ‘Cent Cinquante Procedures En Deux Semaines’. Liberation 19 January 2015. Source: http://www.liberation.fr/societe/2015/01/19/cent-cinquante-procedures-en-deux-semaines_1184250.