The Balance between Anti-Terrorism and Human Rights - Essay Example

HUMAN RIGHT LAW Lecturer: Introduction Memories of the horrific September 11th 2001 terror will continue to linger in the minds of world leaders. But as such memories are made the most important issue that these leaders would certainly want to address is how to prevent such occurrence or similar ones in the future. Rightly in response to the fateful terror attack, several nations took giant steps aimed at stopping by every means possible. In the UK, one of the approaches was through the enactment of the Anti-terrorism legislation.1 The Anti-terrorism legislation received royal assent on 14 December 2001 with a major focus on countering terrorism.2 By this, several provisions were made including ways of fighting terrorists and their schemes. Since the coming of the Anti-terrorism legislation however, there have been several public debates on the appropriateness of the law when viewed from the perspective of human rights infringement. This is because whereas some think it is appropriate that terrorist atrocities must be battled in any way possible, others argue that trampling on the human rights of innocent people to get the right thing done could be equally terrorising in nature.3 This paper therefore seeks to critically analyse the claim that the erosion of human rights through anti-terrorism schemes cannot be justified. The analysis is made from a legal perspective by reviewing legal principles, case law and statutes that help in understand the issues better. The balance between anti-terrorism and human rights Rationale for anti-terrorism There is no denying the fact that the number one reason for any anti-terrorism campaign is to ensure the protection of the freedoms, liberties and fundamental human rights of people. This is because acts of terrorism always come with adverse effects on people and property that in the end impede the successful exercising of their civil freedoms, liberties and rights.4 By having anti-terrorism programmes and campaigns therefore, a very giant step is taken to ensuring some levels of fairness in society where abuses that happen as a result of terrorism can be confronted. Very unfortunately, studies have showed that anti-terrorism is more difficult and challenging to achieve than a single terrorist may get through with the launch of multiple acts of terror.5 This is because whereas terrorist attacks take place by people who are ready to loss their lives and the lives of others, those engaged in anti-terrorism, including counter-terrorism must be careful to ensure that innocent lives and property are protected. It has been for this reason that advocates for anti-terrorism have continued to use stiffer regulations and policies in ensuring that even if terrorists do not suffer an equal measure of the harm they cause, they would similar measures of penalties that serve as sufficient deterrent to them. In principle therefore, anti-terrorism has been seen as a justifiable means by which terrorism should be stopped. The main question however remains whether this has not been done in some inappropriate ways. The problem with human rights infringement On 16 December 2004, the Law Lords passed a ruling6 that there were sections of the Anti-terrorism, Crime and Security Act 2001 that was not compatible with the European Convention on Human Rights (ECHR).7 Even though this particular ruling was made in relation to section 23 of the legislation, it gave room for a thorough review of the issue of anti-terrorism and its impact on human rights infringement. As noted in literature, the fundamental human rights of people are the most sacred forms of rights that anybody can readily make claim to.8 Because of this, it remains very important that any act or series of actions that are taken with the idea of fighting terrorism be carefully scrutinised to ensure that they do not turn out to defeat the quest to protecting the human rights of others. If for nothing at all, it would be appreciated that the first convection that informs the enactment of law against terrorism is because acts of terrorism impact very directly on the freedoms and human rights of its victims. If the fight against terrorism is therefore a fight for the protection of human right, then it would equally be wrong be the approach to fighting terror results in abuse of human rights such as detaining suspects without trail or launching counter-terrorism attacks that in the end cause harm to innocent people. Legal perspective of anti-terrorism and human rights The case of Belmarsh Detainees When arguing about the Anti-terrorism legislation from the perspective of human rights infringement, one statute that readily comes to mind is the ECHR. It is known for example that based on the ECHR, the indefinite detention of foreign prisoners in Belmarsh without trial as supported by section 23 of the Anti-terrorism legislation was ruled as unlawful.9 Weighing the arguments of the case, it would be noted that the major reason for which the 9 appellants were eventually detained by April 2002 was because under section 4 of the Anti-terrorism, Crime and Security Act 2001, provided that foreigners of who there was evidence against for threatening national security could be detained without trial and deported. Meanwhile, the real weakness of this provision can be seen in the fact that this part of the law only applied to non-British nationals. Meanwhile as a member of the European Union, the UK was found by the House of Lords to be obligatory to the European Convention of Human Rights which ensured equal rights for all people regardless of their nationality.10 The government however argued based on Article 15 of the ECHR that it was possible to derogate from the ECHR’s general provisions but this claim was not accepted as Lord Hoffmann did not see the appeal of the 9 people as a threat to the life of the nation.11 By implication, the legality behind the fight against terror in UK is expected to be one that aligns well with international provisions and guarantees to avoid the infringement of human rights such as discrimination in the exercise of its national laws. Principle of liberty and security in Article 5 of ECHR On the whole, Article 5 of the ECHR provides that all people have the right to liberty and security. The article however continues to admit that there are circumstances such as in the case of arrest or imprisonment that the liberty of a person may be restricted. From the latter argument, one may assume that under situations where people are fairly suspected of terrorism, they their freedoms should be curtailed as was attempted under with the case of the Belmarsh detention. However, it is important to appreciate the fact that the real basis on which Article 5 of the ECHR acknowledges for people’s liberties and security to be hampered is when all reasonable judicial proceedings have been fully exhausted.12 Meanwhile, due to the desperation that leaders of the country have always been through to defend the lives of their citizens, they are mostly swayed in looking at the most radical means possible through the application of contingency theory in bringing terrorists to book.13 But as far as the law is no respecter of persons, it is important that whiles putting up sanction against people involved in terrorism such as the in the case of the UK, it will be important that the about rigors of both national and international laws are considered thoroughly. Conclusion In today’s public discourse about anti-terrorism, the main line of debate has been whether or not anti-terrorism schemes should take up stricter approaches to fighting terrorism than they currently do. This is because as seen in the paper, terrorists always go about their schemes with wicked mentality and it has remained extremely difficult to prevent their work. But as such debates unfold, supporters of anti-terrorism are even more worried that their existing scheme of work continues to be criticised as being inhumane in nature. Indeed as far as the legality of anti-terrorism is concerned, the paper has showed that even though it cannot be debated that anti-terrorism is relevant, it is only proper that the concept will be approached in the most appropriate manner. The major underlying thought in the paper is that in law, two wrongs does not make right and so when fighting to counter terrorism because terrorism infringe on human rights, the fight must not in itself contain acts of human rights abuse. Going forward, the conclusion of the paper widens the need to keep searching for more realistic and less abusive ways of countering terrorism. For example, the fight against terrorism can be started from a more humanistic perspective where the consciences and reasoning of people is programmed not to embrace acts of terrorist engagements. Should people go into terrorism regardless of this, the first question that must be asked is what the law on human rights say about how to handle such people. References Cases A and others v Secretary of State for the Home Department [2004] UKHL 56 Statutes and statutory instruments Anti-terrorism, Crime and Security Act 2001 EU legislation and Cases European Convention on Human Rights 2004/29/EC of 21 April 2004 for the protection of human rights Books Masferrer, A. and Walker C, Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar Publishing 2013) 294 Pape, R. (2005). Dying to Win: The Strategic Logic of Suicide Terrorism (Random House 2005) 211 Deflem, M. The Policing of Terrorism: Organizational and Global Perspectives. (Routledge 2010) 32 Journal articles Tomkins, P. Legislating Against Terror: The Anti-Terrorism, Crime and Security Act 2001 [2002] Public Law 220 Kalyvas, S. ‘The Paradox of Terrorism in Civil Wars’ [2004] Journal of Ethics 138. Buurman, J., Zhang, S. and Babovic, V . ‘Reducing Risk Through Real Options in Systems Design: The Case of Architecting a Maritime Domain Protection System’ [2009] Risk Analysis 366. Read More