The rudimentary relationship between human rights law and the phenomenon of terrorism, with particular attention to the interrelation between international human rights law and counter-terrorism responses cannot be gainsaid. The boundaries between human rights law and international humanitarian law (IHL) are not adjoining, but rather overlapping. Responses to terrorism, whether understood as “war” or law enforcement, involve choices that have repercussions for the rule of law, its advancement, and observance.
Terrorism is indefensible, unacceptable, and certainly unjustified and thus needs to be stopped and society protected. There’s however little point in doing so if the results would be loss of the freedoms that define the very society we are in the struggle to protect. These freedoms exist through institutional units and the control imposed on government action, thus our core challenge remains to provide a forceful institutional response to violence while controlling that response. Terrorism is yet another threat to social order that needs to be met in a controlled fashion. Issues of Human Rights violations have been on the rise owing to the enactment of counter-terrorism legislation in several countries that contravenes the spirit of human rights law.
It is worth noting that democracy, rule of law and individual freedom are relatively intertwined such that without individual freedom and the rule of law, real democracy cannot exist and vice versa; and on the other hand, the rule of law and individual freedom are inconceivable with an anti-democratic regime. These values are thus interdependent; in a modern democracy, each is equally advanced. The core remains that human rights are a guarantee and a precondition for individual freedom. However, they will only be respected in a society where the State upholds the rule of law, even under challenging circumstances as brutalterror attacks.
1. Terrorism and its unique aspects
Terrorism and the resulting effect of the war on terror remains a thorn internationally. This war, like any other, requires preparations at all levels of command, weaponry, special tactics and rules of engagement, and a legal framework within which to act. But despite the unanimous denunciation of terrorism by all Nations, it has so far been difficult to meet these requirements. A clear and specific definition of “terrorism” remains the major contention.
Any war is simply a series of actions with specific targets using a sequence of different tactics and successive measures that at all times should be under control until the strategic goal is achieved, which is usually tied to the political or economic interests of the warring countries. In terrorism, what is this target? A person? A nation? A doctrine? An international network? There needs to be a clear way to identify, and therefore label, the supposed “terrorist.”
The second concern is the lack of a uniform legal framework governing the war against terror. The offence of “terrorism” and the actor “terrorist” is undefined in any law and therefor a major challenge to successfully prosecute terror suspects without raising human rights related concerns since treating terrorism just as any other crime seems too lenient considering the gravity of the harm.
In the existing legal framework, terrorism as an offence has been addressed under an amorphous legal framework. This denotes that terrorism is not recognized as an offence legallyper se and therefore is viewed disjointedly. Terrorism is thus prosecuted under different categories of offences as perceived respectively; as an international crime, a crime against humanity, a war crime and as genocide. This is however complicated as such acts of terrorism have to fit within the respective definitions to warrant its prosecution.
2.Terrorism and the Use of Force
International law proscribes the use of force between states as expressed in Article 2(4) of the Charter of the United Nations (UN Charter). This prohibition has attained the status of jus cogens. However, the charter allows two exceptions for use of force; under Chapter VII the Security Council can allow use of force in extraneous circumstances to restore international peace; and Article 51 allows for use of force in exercise of a State’s inherent right of self-defense as well as backed with the 2004 International Court of Justice’s(ICJ) Wall advisory opinion that clarified the context of the use of force. Invoking the latter justification has however, been marred with controversies since not every instance of the use of force against a state is deemed to be an armed attack under Article 51. Escalating this controversy is the war on terror. International law regulates both jus ad bellum and jus in bello.
There has emerged a new ‘International anti-terrorism law on the use of force’. Its emergence has helped shape the broad-spectrum of law on the use of force by curing old controversies on the concepts of pre-emptive, preventive or anticipatory self-defense. Prior to 9/11 the norm was that an ‘armed attack’ must have occurred before the right on self-defense could be exercised. The Bush doctrine, post 9/11 order by anticipatory self-defense nevertheless triggered the international community, shifting its classical strict approach to a fairly middle-ground of pre-emptive self defense.
- Principle of proportionality and the Use of Force
It is imperative to exemplify the extent and justification of use of force by states in the face of brutal terrorist attacks.The principle of proportionality in the use of force is a necessary, sensible and humane doctrine of international law. For any use of force to be lawful, it must be proportionate. Contemporary understanding of proportionality is informed by Article 51(5)(b) of the 1997 Additional Protocol 1 to the 1949 Geneva Conventions defining an indiscriminate attack. The principle prohibits attacking a military objective if doing so will result to a loss of civilian life, damage to civilian property or damage to the natural environment that outweighs the value of the objective. This principle works in conjunction with other fundamental principles of IHL including the principle of discrimination, necessity and humanity.
Counter-terrorism measures are hence, governed by the principle of proportionality. The measures taken in response must be proportionate to the harm caused by the wrong. Proportionality requires an assessment of the means to accomplish the lawful objective. When states have no right to resort to force or no right to resort to force to the extent they do, the principle of proportionality governing the conduct of force still applies.
The global war on terrorism clearly straddles the line between law enforcement and national security. We are clearly at war, but the stated objective of that war is, at least in part, to bring wrongdoers, (terrorists) to justice. It is thus vital that a degree of balance be achieved between civil liberties and security.
There is therefore need to have in place a clear and concise anti-terrorism and counter-terrorism legal framework with precise emphasis on rules of procedure, sentencing as well as definition of the vice and its perpetrators. Every criminal suspect deserves to be affordedthe fundamental principles of criminal law; including non-bis-in-indem, nullum crimen sine lege and nulla poena sine lege principles, presumption of innocence, the right to a fair trial and the right to be convicted only on the basis of individual penal responsibility.
In light of the foregoing, even in the face of the brutal maim and murder of the innocent students in a grizzly manner at the Garissa University in Kenya, upon apprehension, the suspects of the terror attack must be dealt with, though inexorably, but within the confines of fundamental human rights in the context of fair trial.
The use of force by a state, as observed, may be legally permissible but disproportionate. The ICJ made this point in the 1986 Nicaragua Case, where it distinguished minor armed exchanges or “frontier incidences” from attacks that give rise to the right of self-defense. The Al Shabaab attack at Garissa University gives rise to Kenya to use the level of force permitted in self defense. In this regard, should Kenya opt to exercise its right of self-defense, the force used against the Al Shabaab militia must respect the principle of proportionality.