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Balancing Counter-Terrorism Measures with International Human Rights

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In his statement at a special meeting of the Security Council’s Counter-Terrorism Committee on 6 March 2003, the Former Secretary-General Kofi Annan has noted:

 “….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.”

Acts of terrorism are one of the gravest forms of human rights violations that can potentially shake up the spirit of society. People acquire a hateful approach towards the terrorists and those involved in terrorist activities. Moreover, governments do not hesitate to take all possible hardest actions against terrorism to secure their citizens and nation. It can be understood that any counter-terrorist measure taken to satisfy this sentiment of society will more likely be appreciated rather than being criticized. In the wake of this situation, it becomes crucial for the state and its agencies to observe the human rights laws while enacting and exercising the anti-terrorist measures (OHCHR 2008). It has been found that there exists a continuous struggle between national security interests and the protection of the human rights of individuals. In numerous cases, European and American Courts have preferred human rights over the draconian legislative provisions to curb terrorism. When one is dealing with terrorism, measures taken for counter-terrorism shall give high regard to human rights. If States fail to achieve this balance, they will ultimately defeat the success of their counter-actions. Thus, it is to be remembered that one should not become a demon that they are fighting.

Understanding International Human Rights

Human rights are the core universal values available to every individual and group being a human. It provides fundamental freedoms to individuals and protects them from the arbitrary use of power by the state (OHCHR 2008). International human rights are the rights reflected under various core international human rights treaties and customary international law. It includes the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, and others. Moreover, the prohibition of genocide, torture, and slavery is widely recognized as peremptory norms from which no derogation is possible. All the concerned state parties are under an obligation to protect human rights enshrined under these instruments. They shall not take any action in the breach of their commitments.

The immense importance of human rights raises a few considerations before the state. Whether human rights can be compromised in the name of national security? How should states deal with a situation where human rights fall between their national security or other interests? This short note will try to reflect on these essential issues.

What Is Terrorism?

There exists no universal definition of the term ‘terrorism’ (Acharya 2009); however, General Assembly has tried to define it as “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them” (UNGA 1995). This term finds its mention under International Humanitarian Law that prohibits ‘terrorism’ and ‘acts of terrorism’ committed during an armed attack (Kaponyi 2007). During peacetime, such acts are dealt with under national laws, international criminal law, and human rights laws. Terrorism has been observed as a criminal act rather than an act of war (Acharya 2009); however, this definition is still evolving.

Terrorism is a controversial term, and its meaning differs from context to context and time to time. A person or group who acts as a terrorist for some might be a hero for others. However, it should be presumed that all such violence and destruction that constitutes terrorism and terrorist activities are done in the breach of human rights. These activities cause severe injury to the life and liberty of the individuals and the unity and integrity of the nation (Kaponyi 2007). In the interest of humanity, the state needs to adopt counter-terrorism measures in its legislation and enforcement actions to prevent and suppress terrorist activities while observing the rule of law.

Interaction Between Counter-Terrorism Measures And International Human Rights

There exists an unavoidable link between counter-terrorism measures and international human rights (Kielsgard 2013). Acts of terrorism provide legal justification to the threatened state to take actions that can cause severe human rights abuses. The interplay between these two concepts aims to address three dimensions of human rights: concerning the victims of the terrorist attacks, concerning the suspected terrorists, and concerning the people subjected to terrorism (Kaponyi 2007). The first category requires the right to life and dignity and the right to justice. The second category talks about the right to life, the presumption of innocence until proven guilty, the right to a fair trial, freedom from arbitrary detention, torture and degrading treatment, and the right to asylum. The third category talks about the right to life, right to information, freedom of association, strike, and expression. It is to be noted that the list of these rights are not exclusive and may include other related rights. Therefore, the state’s actions must not defy its international human rights commitments in the guise of national security. There have been instances when courts have curtailed unnecessary and vague security measures found in infringement of human rights.

In Hamdan v Rumsfeld US Supreme Court held that the structure and procedures of the Military Commissions been set up to try detainees of Guantanamo Bay violates the Uniform Code of Military Justice and Common Article 3 of Four Geneva Conventions, 1949. It was a landmark case that restrained the Presidential power vis-à-vis the treatment of Guantanamo Bay prisoners (Philips 2006). In Hamdi v Rumsfeld Supreme Court rules, US citizens detained as enemy combatants have the right to due process and the ability to challenge their enemy combatant status. However, in Rasul v Bush Supreme Court provided that it has jurisdiction to hear habeas corpus petitions foreign nationals detained at Guantanamo Bay. This case attracted several petitions from foreign citizens challenging the basis of their detention. To prevent a large number of petitions from detainees, the US government came up with Military Commission Act in 2006 that bars foreign nationals from challenging their detention that was ultimately held unconstitutional by the US Supreme Court in the case of Boumediene v Bush. It can be observed that the Supreme Court has generally prioritized human rights over its national security issues (Wald 2010).

Similarly, the Court of Appeal in Miranda v Secretary of State for the Home Department found arbitrary ‘stop powers used against journalistic information’ contained under Schedule 7 of the Terrorism Act, 2000 of the UK to violate freedom of expression provided under Article 10 of the European Convention of Human Rights. In another case of Gillan and Quinton v United Kingdom European Court of Human Rights held blanket power to stop and search under Section 44 of the Terrorism Act, 2000 to violate the right to respect for private life that later got repealed and replaced by the legislature.

Counter-terrorism measures provide incentives to the government authorities to reinterpret their law justifying interrogation, detention, and ‘targeted killing’ (Sanders 2017). It provides immunity and legitimacy to their acts of human rights abuses with the least accountability. Under its ‘War on Terror’ against the Taliban Government in Afghanistan, the US has denied applying human rights and humanitarian law to the detainees at Guantanamo Bay and termed them as “enemy combatant” (Duffy 2005). However, from the International Humanitarian Law perspective, it can be counter-argued that the US is detaining combatants by creating a category based on a weak claim supported by reliable facts. They are arrested for an indefinite period without providing them the rights of prisoners. From the International Human Rights approach, a State is obliged to fulfill its international commitments over the persons who are present under its authority and control. This global outreach of the subject founds its applicability even in the areas beyond national jurisdiction, thus holding the US responsible for Guantanamo Bay that lies outside US territory.

Counter-terrorism measures are abused on the pretext of discrimination (Kaponyi 2007). General Assembly Resolution and UN Council on Human Rights Resolution prohibit discrimination that treats people from one ethnic or racial origin, religion or belief, disability different from the others. The creation of plausible legality of human rights violations by the state establishes a requirement to promote human rights (Sanders 2017). Where the UN General Assembly and Security Council have taken several counter-terrorism measures to combat terrorism, UN bodies also aim to respect human rights even in emergency cases. Law is undoubtedly evident that counter-terrorism measures cannot be fulfilled without considering human rights (Kielsgard 2013). States should respect human rights along with its counter-terrorism and security measures.

Conclusion

The real issue lies in determining the legality of counter-terrorist measures that occasionally fall short of the state’s international commitments under its human rights regime. It has been observed that the absence of any definition of terrorism provides ample scope for the state to interpret the term ‘terrorism’ with a political bias favoring its interest (Kaponyi 2007). Further, a State can easily justify its actions in the name of national security that denies human rights to the individual and ultimately raises questions on the rule of law (Duffy 2005). Under the case laws, judges have shown an inclination to respect the international commitments on human rights regime. However, this cannot be said affirmatively for the legislature and enforcing authorities.  It is not the counter-terrorism measures, but their abuse is problematic. Arbitrary and poorly-implemented counter-terrorism measures have their consequences. Co-lateral damage must be proportional. Since both counter-terrorism measures and human rights are important issues for a country; thus, it is essential that a balance be struck between them. It should be noted that fight against terror and the observance of human rights must go hand in hand. The State’s responsibility is to respect human rights and not use counter-terrorism measures as a justification for their violation.

REFERENCES

  • Acharya, Upendra D. (2009): “War on Terror or Terror Wars: The Problem in Defining Terrorism,” Denver Journal of International Law and Policy, Vol 37, pp 653.
  • Boumediene v Bush (2008): 553 U.S. 723
  • Duffy, Helen (2005): The “War on Terror” and the Framework of International Law, Cambridge University Press
  • General Assembly, Protection of human rights and fundamental freedoms while countering terrorism, A/RES/58/187 (2003)
  • General Assembly Resolution, U.N. Doc. A/RES/49/60 (Feb. 17, 1995)
  • Gillan and Quinton v United Kingdom (2010): ECHR 28 (2010)
  • Hamdan v Rumsfeld (2006): 548 U.S. 557 (2006)
  • Hamdi v Rumsfeld (2004): 542 U.S. 507
  • Kaponyi, Elisabeth K. (2007): “Upholding Human Rights in the fight against terrorism,” Society and Economy, Vol 29, pp 1.
  • Kielsgard, Mark D. (2013): “Counter-Terrorism and Human Rights: Uneasy Marriage, Uncertain Future,”Journal Jurisprudence, Vol 19, pp 163.
  • Miranda v Secretary of State for the Home Department (2014): EWHC 255 (2014);
  • Office of the United Nations High Commissioner for Human Rights (2008): “Human Rights, Terrorism and Counter-Terrorism” <https://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf>
  • Philips, Dennis (2006): “Hamdan v Rumsfeld: The Bush Administration and ‘The Rule of Law’,” Australian Journal of American Studies Vol 25, pp 40.
  • Rasul v Bush (2004): 542 U.S. 466
  • Sanders, Rebecca (2017): “Human rights abuses at the limits of the law: Legal instabilities and vulnerabilities in the ‘Global War on Terror’,” Review of International Studies Vol 44, pp 2.
  • UN Commission on Human Rights, Commission on Human Rights Resolution 2003/68: Protection of human rights and fundamental freedoms while countering terrorism, E/CN.4/RES/2003/68 (2003)
  • Wald, Patricia (2010): “National Security versus Human Rights: An uneven playing field,” American Society of International Law, Vol 104, pp 458.

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Terrorism

Despite acknowledging strict measures, Pakistan has to stay on the grey-list in FATF

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President of The Financial Action Task Force (FATF), Dr. Marcus Pleyer, announced in a press conference held on 25 February 2021 after the four-day virtual plenary meeting in Paris, France, that  “Pakistan remains under increased monitoring,” adding that while Islamabad had made “significant progress,” there remained some “deficiencies” in mechanisms to plug terrorism financing.

The Financial Action Task Force (FATF) is an inter-governmental formal decision-making body. It was founded in 1989 during the G7 Summit in Paris to develop policies against money laundering. It is a “policy-making body “that generates the political will to bring about national legislative and regulatory reforms in money laundering. It has also started dealing with virtual currencies. The FATF Secretariat is located in Paris. It sets standards and promotes effective implementation of:-

a. Legal, regulatory, and operational measures for combating money laundering.

b. The FATF works to identify national-level vulnerabilities to protect the international financial system from misuse.

Pakistan has been on the FATF grey list since June 2018 and has been asked to implement the FATF Action Plan fully by September 2019. Pakistan has implemented almost 90% of the recommendations; only three out of 27 points are not fully implemented.

Pakistan has suffered heavy economic losses due to being put on the grey-list; according to some estimates, Pakistan has suffered US Dollars 38 billion.

The FATF president noted that Pakistan was working towards its commitment made at a high level to implement the illicit financing watchdog’s recommendations, saying “that is not the time to put a country on the blacklist.”He added that as soon as Pakistan completed the action, the watchdog “will verify the reforms’ sustainability and discuss in next plenary in June.”

However, there are no chances that Pakistan could be put on the blacklist because it has at least three members of the FATF — China, Turkey, and Malaysia — that can sustain all pressures against any downgrade.

The government of Pakistan is committed to fully implementing the action plan, and to date, the progress achieved is admired by other FATF members.

However, FATF is also being used as a political tool against other nations. By reviewing the countries on the blacklist, the new additions are  North Korea and Iran- the West’s adverse enemies. Also,the addition of   Morocco, Burkina Faso, Senegal, and the Cayman Islands, are political decisions. As a matter of fact, the Western world is using international organizations, including FATF, to coerce their political opponents. Pakistan was a close ally with the West during the cold war era, and the front line state on Afghan war and non-NATO ally in the war on terror, yet faced worst sanctions like Pressler Amendments, Kerry Loggar Bill, etc.

Pakistani journalist Adeela Khan stepped up and raised a question asking FATF president Marcus Pleyer why India is not on the grey or blacklist of FATF even after financing proxies in Afghanistan, using Afghan soil to end terrorism in Pakistan, and violating human rights in India Occupied Kashmir. There more than forty banks in India involved in money laundering. The Incident of terrorism in Sri Lanka can be traced back to India. Yet India is not on the grey list or blacklist. India has been playing an ugly role in keeping Pakistan on the grey list. Although the EU Disinfo lab has revealed that Indian state-sponsored media think tanks and professionals play a dirty role in spreading fake news and disinformation against China and Pakistan yet, the world has not realized India’s evil intentions.

A bais and discriminatory attitude may harm the FATF’s reputation ultimately.

Many neutral people ask similar questions and demand justice and a fair playground for all nations, above the political motives and discrimination. The international community may maintain the reputation of International organizations and integrity – merit-based decisions.

On the one hand, Pakistan is trying its best to implement the FATF plan fully, and on the other hand, it is demanded that a fair playground be provided to judge the case for Pakistan. It is expected that in the next plenary session to be held in June 2021, Pakistan will come out of the grey list.

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‘Disturbing spike’ in Afghan civilian casualties after peace talks began

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A family runs across a dusty street in Herat, Afghanistan. (file photo) UNAMA/Fraidoon Poya

Civilian casualties in Afghanistan witnessed a sharp rise since peace negotiations started in September last year, even though overall deaths and injuries dropped in 2020, compared to the previous year, according to a UN human rights report launched Tuesday. 

In their annual Afghanistan Protection of Civilians in Armed Conflict Annual Report, the Office of the UN High Commissioner for Human Rights (OHCHR) and the UN Assistance Mission in the country (UNAMA) documented some 8,820 civilian casualties (3,035 deaths and 5,785 injuries) in 2020, about 15 per cent less than in 2019.  

It was also the first time the figure fell below 10,000 since 2013. 

However, the country remains amongst the “deadliest places in the world to be a civilian”, according to Michelle Bachelet, UN High Commissioner for Human Rights. 

“I am particularly appalled by the high numbers of human rights defenders, journalists, and media workers killed since peace negotiations began in September”, she said. 

At least 11 rights defenders, journalists and media workers lost their lives since September, resulting in many professionals exercising self-censorship in their work, quitting their jobs, and even leaving their homes and the country – in hope it will improve their safety. 

Rise in ‘targeted killings’ 

According to the report, the overall drop in civilian casualties in 2020 was due to fewer casualties from suicide attacks by anti-Government elements in populated areas, as well as drop in casualties attributed to international military forces.  

There was, however, a “worrying rise” in targeted killings by such elements – up about 45 per cent over 2019. The use of pressure-plate improvised explosive devices (IEDs) by the Taliban, air strikes by the Afghan Air Force, and ground engagements also resulted in increased casualties, the report said. 

According to the report, anti-Government elements bore responsibility for about 62 per cent civilian casualties, while pro-Government forces were responsible for about 25 per cent casualties. About 13 per cent of casualties were attributed to crossfire and other incidents. 

2020 could have been ‘a year of peace’ 

Deborah Lyons, Special Representative of the UN Secretary-General for Afghanistan and head of UNAMA, called on all parties to take immediate and concrete action to protect civilians, urging them “not to squander a single day in taking the urgent steps to avoid more suffering”. 

“2020 could have been the year of peace in Afghanistan. Instead, thousands of Afghan civilians perished due to the conflict”, Ms. Lyons said

The “overriding objective” of the report is to provide the parties responsible with the facts, and recommendations, so they take immediate and concrete steps to protect civilians, she added. 

Ms. Lyons highlighted that “ultimately, the best way to protect civilians is to establish a humanitarian ceasefire” – a call consistently made by Secretary-General António Guterres and the Security Council

“Parties refusing to consider a ceasefire must recognize the devastating consequences of such a posture on the lives of Afghan civilians.” 

UNAMA-OHCHR report: Women casualties (killings and injuries) documented between 1 January 2009 and 31 December 2020

‘Shocking toll’ on women and children 

The report went on to note that the years-long conflict in Afghanistan “continues to wreak a shocking and detrimental toll” on women and children, who accounted for 43 per cent of all civilian casualties – 30 per cent children and 13 per cent women. 

“This report shows the acute, lasting needs of victims of the armed conflict and demonstrates how much remains to be done to meet those needs in a meaningful way”, High Commissioner Bachelet said. 

“The violence that has brought so much pain and suffering to the Afghan population for decades must stop and steps towards reaching a lasting peace must continue.” 

Attacking civilians ‘serious violations’ 

With the conflict continuing, parties must do more to prevent and mitigate civilian casualties, the report said, urging them to fully implement the report’s recommendations and to ensure that respect and protection of human rights is central to the ongoing peace negotiations. 

It also reminded the parties that deliberately attacking civilians or civilian objects are serious violations of international humanitarian law that may amount to war crimes. 

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Terrorism

Is Blacklisting on Cards for Pakistan?

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Financial Action Task Force (FATF) has been an integral part of the economic decision making and regulatory procedures of the country. The days of the ultimate decision are finally on cards as the Global Watchdog is expected to evaluate and review the performance and strategies of Pakistan via virtual meeting tentatively scheduled for February 22-25, 2021. This would be a much-anticipated review since a keen eye would be payed following a long hiatus to the litigations recently undertaken by the country to eliminate the risks and gaps in the financial framework which might earn Pakistan, a way out from the grey list. However, while the preceding meeting only guided more hopes for better litigation and measures to curb terror financing, brimming foreign propaganda and nefarious rulings within the country itself might hamper the way out but instead could dig the trench further towards a harrowing financial turmoil.

Pakistan was placed on the grey list back in June 2018 due to strategic deficiencies. Just before the Covid-19 pandemic wreaked havoc in the world, Pakistan was allowed a breather of 4-months to comply with the 27-point action plan; of which Pakistan met only 14 targets while missing out on the rest of 13 targets. Moreover, Pakistan could only satisfy 10 of a total of 40 recommendations devised by the task force. These lags led to a major pitfall in the Pakistan’s Stock Market; PSX plummeting bellow 30,000 points. Furthermore, a bitter narrative started blooming regarding arch-rival India pulling all the strings to push Pakistan down further, even in the blacklist. This was largely shunned by the Indian representatives but the failure of the economic and diplomatic front of Pakistan was evident by now.

The FATF plenary was scheduled, like traditionally, in June. However, all scheduled evaluations and review procedures were deferred for 4-months in the wake of the Covid-19 pandemic, allowing yet another unforeseen yet thoroughly welcomed relief span to Pakistan to strive more actively to meet the requirements.

In the preceding 4 months, Pakistan acutely worked to amend the contradicting laws and policies, the parliament playing an agile role to introduce new bills relating to counter-terrorism and countering money laundering as an act to expedite compliance to the international laws and ultimately meeting up all 27 points in the action plan. Almost all the bills presented, albeit some political resistance, were eventually passed which even led to optimism in the stock market; PSX climbing back over 40,000 points after more than half a year, rallying to record high levels despite of the pandemic wreaking havoc on the investors’ mentality across the globe.

The meeting held, after a steep deferral, back in October 2020; the FATF committee observed and commended on the vigilant stance assumed by Pakistan to crawl out of the Grey list. Pakistan has since delivered on 22 out of the 27 core points of the action plan defined. However, the meetings adjourned till February, retaining Pakistan in the grey list under the tag of ‘jurisdiction under enhanced monitoring’ whilst praising the steps of counter-terrorism and anti-money laundering adopted by Islamabad.

Pakistan was warned back in February last year that if not complied by the 27-point action plan, it could be a great threat to the foreign mechanism and would be eventually moved to the monitored jurisdiction, notoriously also known as the ‘Blacklist’. Later this month, FATF would examine if Pakistan meets the 8 key categories of the action plan; remedial actions taken against money laundering, counterfeit terrorism while also reviewing the vigilance of the institutions in countering Terror Financing and actively managing risk. The committee representing Pakistan would perpetually convince the plenary that the country in-fact meets the criteria and transitioning over the next month, the fate of the tormented economy would finally prevail in light of the decision made.

However, Pakistan has been sluggish in taking action against the notorious entities linked to terrorism around the region. The meeting nears with the pinned watch of UN regarding Pakistan’s role of providing a safe haven to Lashkar-e-Taiba founder, Hafiz Saeed, or the notorious acquittal of Ahmed Omer Sheikh, the prime culprit of the Daniel Pearle Murder case of 2002. Pakistan, however, claims to have made virtue on 22 of the defined 27 points while has garnered ‘Substantial progress’ on the remaining 5 points. Thus, the optimism brews that the meeting would push the country out of the list and would open more financial avenues especially in these distressful conditions.

Although Pakistan’s Foreign Office including the Foreign Minister, Shah Mahmood Qureshi, appears optimistic to climb out of the grey list after 3 years, the infamous decisions passed by the Supreme Court of Pakistan, the excessive money laundering cases surging against the ex-office holders of Pakistan and the determined efforts of India to subvert Pakistan in global politics, all thwart down that optimism bit by bit. And while some of the economic experts claim that the decision of advancing Pakistan off the Grey list would be naïve move and would arguably impact regional dynamics, the decision could fall in tandem with the preceding outcome of sustaining the grey list status or could deteriorate the level further as gauged by a political expert, opining his narrative: “The facts demand that Pakistan remain on the grey list. The FATF shouldn’t just keep Pakistan on the grey list. It should rather warn Islamabad that absent rapid and wide-ranging reform; blacklisting is coming”.

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