Counter terrorism

From a human rights perspective:

Lionel Wijesiri

Terrorism: frightening in its unpredictability, unsettling by its seemingly random nature - its capacity to strike apparently anywhere, anytime, anyone. We, in Sri Lanka, had tragic experience with terrorism for 30 years, dating from the 1980’s to 2010. Today, in the climate of democratic consolidation, we have shown ourselves determined to protect our hard-won sovereignty by opposing all forms of terrorism, wherever they may appear, and have understood that this can only be done with the strong support of all our people

All around us, from Africa to Asia, and from America’s 9/11 to Spain’s and Europe’s 3/11, the price of terrorism has been abject and unjustifiable suffering. Terrorism in all its forms and manifestations constitutes one of the most serious threats to global peace and stability. The UN Security Council in Resolution 1269 called upon all states to cooperate with one another, to prevent and suppress terrorist acts, to protect their nationals and other persons against terrorist attacks, and to bring to justice the perpetrators of such acts. At the same time, however, UNO also states that countries must ensure any measures they take to combat terrorism comply with their obligations under international law, in particular international human rights and humanitarian law. In essence, the point is that the fight against terrorism has to be fought within the boundaries of human rights.

This theory leaves us with three important questions to explore. First, to what extent can the fight against terrorism be considered a fight for the full enjoyment of human rights? Second, do human rights prevent us from countering terrorism effectively? How are we to strike the right balance? Thirdly, to what extent does our strategy to counter terrorism require us to actively promote human rights? These are difficult questions to answer. There are no easy answers.

It is in this context the recent speech by Dr. Palitha Kohona, our permanent representative in the UN, becomes relevant. Two paragraphs of his speech are quoted: “The normative framework on civilian protection cannot be applied in a theoretical manner regardless of the circumstances.

Our own past experience in dealing with a terrorist group that used the civilian population forcibly as a human shield to launch attacks on the armed forces should remind all of us of the challenges. While shielding behind innocent civilians they also succeeded in marshalling the support of their sympathizers abroad to stage massive demonstrations. Unfortunately, too many well meaning persons were taken up by these cynical efforts to garner sympathy. Much of the rules of war are based on the presumption that the parties to the conflict are conventional armies of responsible States but terrorists totally disregard these laws and principles”.

“The cost of armed conflict on civilians and the need for accountability is a matter of concern to all democratic and elected Governments including our Government. In this context, our Government. established a Commission of Inquiry in May this year. Quite often and quite naturally, the focus on civilian casualties is cantered on the life and property damage caused in military operations while insufficient consideration is given to the thousands of lives lost in suicide attacks on civilian targets by non State actors.

Two Categories

We have to devise means to also hold non State actors accountable and to recognize the asymmetrical nature of conflicts where democratic states are confronted by ruthless terrorist groups who pay scant attention to the rules of war and challenge conventional armies on how best to protect vulnerable civilian population”.

In an age of easy international travel and advanced communications, terrorist networks have also assumed cross-border dimensions. In many instances, attacks are planned by individuals located in different countries who use modern technology to collaborate for the transfer of funds and procurement of advanced weapons. This clearly means that terrorism is an international problem and requires effective multilateral engagement between various nations.

For the international legal community, this poses a doctrinal as well as practical challenge. It is because, from the prism of international legal norms, prescriptions against violent attacks have traditionally evolved under two categories - firstly, those related to armed conflict between nations, and secondly, those pertaining to internal disturbances within a nation.

While the conduct and consequences of armed conflicts between nations - such as wars and border skirmishes - are regulated by international criminal law and humanitarian law, the occurrence of internal disturbances within a nation are largely considered to be the subject-matter of that particular nation’s domestic criminal justice system and constitutional principles.

It is often perceived that these doctrinal demarcations actually hamper international cooperation for cracking down on terrorist cells with cross-border networks. In the absence of bilateral treaties for extradition or assistance in investigation, there is no clear legal basis for international cooperation in investigating terrorist attacks - which are usually classified as internal disturbances in the nation where they took place.

Since there are no clear and consistent norms to guide collaboration between nations in acting against terrorists, countries like the United States have invented their own doctrines such as ‘pre-emptive action’ to justify counter-terrorism operations in foreign nations.

Constraints

However, the pursuit of checking the alleged human rights violation during a terrorist war period alone cannot be a justification for arbitrarily breaching another nation’s sovereignty. In this scenario, one strategy that has been suggested is that of treating terrorist attacks as offences recognised under International Criminal Law, such as ‘crimes against humanity,’ which can then be tried before an international tribunal such as the International Criminal Court (ICC). The prosecutions before this Court need to be initiated by the United Nations Security Council (UNSC).

Yet another practical constraint has been the question of holding sovereign governments responsible for the actions of non-state actors. While one can say that there is a moral duty on all governments to prevent and restrain the activities of militant groups on their soil, this is easier said than done. For example, terrorist groups are able to organise financial support and procure weapons even in western nations where the policing and criminal justice systems are perceived to be relatively stronger than in the subcontinent.

Furthermore, the trauma resulting from the terrorist attacks may justify curtailment of certain individual rights and liberties. Outside the criminal justice system, the fear generated by terrorist attacks may also be linked to increasing governmental surveillance over citizens and stern restrictions on immigration. Such restrictions were not confined to Sri Lanka and other terror-struck Asian countries.

In recent years, the most prominent example of this ‘slippery slope’ for the curtailment of individual rights is the treatment of the detainees in Guantanamo Bay who were arrested by U.S. authorities in the wake of the 9/11 attacks. It is alleged that they have detained hundreds of suspects for long periods, often without the filing of charges or access to independent judicial remedies. Stories of violent interrogations and torture also came into light.

Even in the United Kingdom, the Anti-Terrorism, Crime and Security Act, 2001, allowed the indefinite detention of foreign terror suspects. However, due to a subsequent House of Lords decision the Government enacted the Prevention of Terrorism Act; the British Parliament accepted a 42-day period as the maximum permissible for detention without charges.

The simple truth is that we cannot however impose international conventions on terrorists who are largely unseen and unknown until they strike and claim responsibility. It is also true that we cannot also suspend human rights and the rule of law in our countries in the spirit of combating terrorism. The rest of the civilians must continue to live in reasonable peace despite the ravages of terrorism and other threats to liberty.

But we must recognize that manmade and natural calamities occur which at times threaten the very existence of the state and the enjoyment of the same civil liberties. Threats to society such as terrorist war, earthquakes and floods demand that governments should have the ability to lawfully undertake extraordinary measures to protect citizens and the very liberties that we so deeply cherish.