Supreme Court of India more than fifteen years ago in 1986 said:
"Our tradition teaches tolerance;
our philosophy preaches tolerance;
our constitution practices tolerance.
Let us not dilute it".
“Anger, alienation and the search for simple solution in a complex and troubled world are also motivating violence and terrorism by a variety of political cult and messianic movements”
Terrorism is defined as the systematic use of murder, injury, destruction or the threat of such acts aimed at achieving political ends- has the power to alter course of history. 9/11 attacks in New York and the Washington bombings in Madrid are the prime examples of it.
Terrorism is the phenomenon, which produces terrorists. Therefore, combating terrorism has a wider connotation. It includes identification and eradication of the causes which give rise to, and promote the phenomenon of terrorism. That is the lasting remedy or cure of terrorism. Terrorism has no precise definition. In a Supreme Court ruling Dr.A.S.Anand defined terrorism as an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof. It is a totally abnormal phenomenon. What distinguishes terrorism from other forms of violence therefore appears to be a delicate and systematic use of coercive intimidation. Terrorism results in gross violation of human rights and must, no doubt, be dealt with a heavy hand. However, the methods to counter terrorism must not violate the human rights of innocents or else the innocents would be exposed to double jeopardy and suffer twin violation of their human rights. Experience worldwide has shown that state terrorism to combat terrorism is counter productive.
The states should therefore take a comprehensive step to confront terrorism in all its forms and to enhance international cooperation in the fight against terrorism. A special council of European heads of state met on 20th and 21st September 2001, to agree to a joint Action plan to deal with terrorism, no less than 68 concrete actions were identified, ranging from agreement on fast track extradition and arrest warrant procedures, to new measures for the collection and exchange of evidence and the freezing of assets.
Seven days later there was a historic event when the United Nations Security Council agreed Resolution 1373, the first resolution to impose obligations on all member states to respond to the global threat of terrorism.
The only way therefore the international community can kill out terrorism is by way of starving the terrorist of the working capital of their trade by cutting off the funding for the terrorist activities. For this international approach is needed.
In the words of Lord steyn: “ the states and their agencies should respect the fundamental rights of the individuals”.
The other way is that there is a vital cooperation between the police forces and other law enforcement agencies internationally.
Prof. Noam Chomsky of MIT in one of his recent public lectures speaking on ‘The New War Against Terror’ describing terrorism referred to the Reagan administration which called it, plague spread by “depraved opponents of civilization,” and said that, “terrorism is not the weapon of the weak, it is the weapon of those who are against ‘us’, whoever ‘us’ happens to be.” He described it as ‘primarily a weapon of the strong, overwhelming, in fact.’
So understood, it has wide ramification and amounts to ‘intolerance’ of any opposition of the strong. The source of strength may be any kind of power, even the power of the state. In that sense any weapon to combat terrorism, which is not tempered with ‘tolerance’ and ‘justice’, may, itself, amount to an act of terrorism and be not within the ambit of ‘rule of law’. Terrorism is a dastardly crime. In the case of crime, the rule of law requires finding the perpetrators and bringing them to justice under the law. In doing so, innocent people are not exposed to any danger or violation of human rights. If a criminal hides somewhere, the law does not contemplate assault on people all around to isolate and apprehend the criminal. The requirement of the rule of law in combating terrorism is similar.
The World Conference in Vienna (1993) was a significant landmark in recognizing terrorism as a threat to human rights. It stated that:
“ The acts methods and practice of terrorism in all its forms and manifestations…are activities aimed at the destruction of human rights…The international community should take the necessary steps to enhance cooperation to prevent and combat terrorism. ”
Different aspects of terrorism have been a concern of the world community. There have been as many as 12 conventions and a declaration dealing with the subject. It was the killing of Israeli athletes at the Munich Olympics which led to the inscribing of international terrorism on the agenda of the United Nations General Assembly in 1972. At the request of the then Secretary General of United Nation the problem of international terrorism was confronted both politically and legally rather than concentrating on any specific acts of terror. It is worth recalling that major part of the debate in the General Assembly concentrated on the causes of terrorism versus measures against terrorism.
Brief historical background of Terrorism
Terrorism is as old as the story of mankind. It appears in the history of Ancient Greece and Rome—— the murder of Julius Ceasar was an act of terror and in practically every century and every part of the world. But much has changed in just past century starting with the choice of targets. In the past the typical victim of terrorism was an emperor or a king, a president or a general. Terrorist would actually call off an attack in order to spare innocent lives, because indiscriminate killings were considered both immoral and politically unwise. Many of today’s terrorists have no such inhibition.
“Terrorism – Counter Terrorism and Human Rights”
Human rights are rights, which inhere in every human being – man, woman or child from birth and which he or she is entitled to enjoy in every society. These rights recognize the essential worth of a human being and acknowledge the basic equality and dignity inherent in all human beings irrespective of race, color, sex, religion or economic levels of living. These have existed in some form in all cultures and have been enjoyed by the people everywhere with varying degrees of emphasis. While this is a historical fact, it is also a part of our experience that powerful forces within the human race, at both the national and the international levels, have been conspiring to condemn millions of men, women and children in all regions of the world to a state of misery, deprivation and continuing exploitation, thereby violating their Human Rights.
In a landmark Judgement the Honourable Supreme Court reiterated the importance it gave to human rights. It said:
“The state is to maintain a delicate balance between such state action and the human rights. Fight against terrorism be respectful to human rights. The constitution has laid down clear limitation on state action within the context of fight against terrorism”.
In the words of V.R.Krishna Iyer, J:
“the true cause of terrorism is the struggle between social justice and the systematic suppression”.
In yet another landmark Judgement the Honourable Supreme Court protected the rights of terrorists. The Honourable court tried to strike a balance between innocent hostages detained by the militants in Hazratbal shrine- need to supply them with food, water, medical facilities, sanitation facilities on the one hand and to flush out militants on the other. The Supreme Court in a magnanimous decision laid down guidelines saying that food, water, lights and sanitation be provided to the terrorist and the innocent hostages.
Rule of Law
Rule of law is a basic feature of the Constitution of India and a part of its basic structure, which is indestructible. The Supreme Court in Indira Gandhi Vs. Raj Narainobserved that
“the major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty become license.”
The perennial dilemma is to discover a measure of right balance appropriate to ever shifting tangle of human affairs. The device adopted by peoples devoted to liberal democracy to overcome the dilemma is the ‘Rule of Law’. Article 21 of the Constitution of India has been judicially interpreted to mean right to life with dignity and not mere animal existence. Human dignity is the quintessence of human rights. Thus, Article 21 alone is comprehensive enough to encompass all human rights. Article 21 has also been construed to be applicable even to non-citizens along with Article 14, which guarantees right to equality, inclusive of the rule of non-arbitrariness.
The core values of our constitutional philosophy indicated in the Preamble to the Constitution are: dignity of the individual and unity and integrity of the nation. The two, obviously can co-exist, and are not incompatible. Otherwise, framers of the Constitution would not club them together in the Preamble as the core values. The message is clear. Every attempt must be made to balance the two in all state actions including legislation, its interpretation and implementation.
That is the demand of the rule of law in a true democracy. Combating terrorism under the rule of law must, therefore, mean compliance of the constitutional mandate. It is significant that Article 21 is non-derogable. After the emergency, an amendment of Article 359 of the Constitution provides that Article 20 (protection against testimonial compulsion) and Article 21 (right to life) cannot be suspended even during an emergency. War against terrorism cannot be more stringent. Methods for combating terrorism must conform to these constitutional requirements.
Even the provisions contained in the ICCPR and the Convention Against Torture which can be safely read into the constitutional guarantees in India by virtue of the decision in Vishaka which requires reading into the domestic law all provisions in international instruments not inconsistent with the domestic law which have the effect of enlarging the fundamental rights guaranteed under the Constitution. It is this wide canvass of rule of law, which must determine the kind of laws and nature of other strategies to combat terrorism in India. Enforcement and implementation of the same must be similarly regulated.
The Supreme Court of India has, in DK Basu vs. State of West Bengal, cautioned:
“State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to terrorism: that would be bad for the State, the community and above all for the rule of law. The State must, therefore, ensure that the various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves
Distinction between a Terrorist Act and a Criminal Act
While an acceptable definition of terrorism, despite huge debate over the years, still eludes the international community, the Supreme Court of India, as far back as in 1994, drew a distinction between a ‘merely criminal act’ and a ‘terrorist act’. In its Judgment in Hitendra Vishnu Thakur v. State of Maharashtra , the Supreme Court of India said:
“…. It may be possible to describe it (Terrorism) as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of any ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or “terrorise” people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquility of the society and create a sense of fear and insecurity. A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. Experience has shown us that ‘terrorism’ is generally an attempt to acquire helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon. What distinguishes ‘terrorism’ from other forms of violence, therefore, appears to be the deliberate and systematic use of coercive intimidation…”
In yet another Judgment of a foreign court the court had stressed on the absolute need for protecting HR of the suspected terrorists and other such enemy combatants, including by providing them a right to council.
Over the years human rights have expanded not only vertically by ensuring their protection and promotion, but also horizontally by making human rights as the basis for good governance. These rights are non-negotiable and non-derogable and no compromise with their violation can be permitted by any civilized society.
In yet another case of its kind, the Terrorist Crime And Security Act 2001 was in question. It was basically in response to the grave and inexcusable crimes committed in NY,Washington DC and Pennsylvania on 11th sep 2001, and manifested the government determination to protect the public against the dangers of international terrorism. By sec 21 of the Act the secretary of state was authorized to issue a certificate in respect of any such person and section 23 gave power to person to detain him either temporarily or permanently. The court said that even the terrorist had HR and they need to be protected.
In yet another case of the same kind HOL held that the HR of the detainees cannot be violated and they can also not be discriminated against due to their race or nationality.
The cult of terrorism strikes at the very root of human rights of innocent people. Terrorism, in all its forms, is the greatest violator of human rights. The aim of the terrorists is to destabilize the civil society and damage its socio-economic fabric. Right to life is the most basic of all rights. One of the rights incorporated in the Universal Declaration and in all other covenants, therefore, is the right to life. For only this right ensures the enjoyment of all other rights. The right to life is of crucial significance for every person, every group of people, every class and every nation and as a matter of fact, for all humanity. This very right to life of the innocent people is the target of terrorism. In democratic societies fundamental human rights and freedoms are more than paper or just pious aspirations. They form part of the law and, therefore, their protection becomes the obligations of those who are entrusted with the task of their protection.
“International terrorism’ is a modern form of warfare against liberal democracies and needs to be dealt with as such. International terrorism is, therefore, a special problem for democracies and needs to be dealt with as such. Today’s terrorists have modern technology to help them, permitting rapid international communications, travel and the transfer of monies. They have links with others of like mind across international borders. A number of terrorist groups and organizations from across the borders of a country provide an inspiration to the terrorist activities within the country. There is often a systematic attempt and effort to secure international publicity in support of their activities. The liberal democracies must, therefore, acknowledge that international terrorism is a collective problem. When one free nation is under attack, the rest must realize that democracy itself is under attack. They must take concerted steps to tackle this menace to safeguard human rights. It is wrong to be selective about violation of human rights and the perpetrators of terrorism. Such selective approach leads to double standards, which make the motives of the protagonists of human rights suspect. It also indirectly lends support to terrorists and terrorism. All nations must, therefore, co-operate to relentlessly and without any compromise fight terrorism. The oft repeated cry, “One country’s terrorist is another nation’s freedom fighter” is but one manifestation of the widespread confusion about the morality of terrorist forms of violence and even goes to encourage terrorism because it clothes the terrorist with a cloak of respectability – totally undeserved.
The following observations of President A. Barak, Chief Justice, of the Supreme Court of Israel regarding fighting terrorism:
“The foundation of this approach is not only the pragmatic consequence of a political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the aggression of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law and exploit its violation. The war against terror is also the law’s war against those who rise up against it. … … … … … … … … We established a state that upholds the law – it fulfills its national goals, long the vision of its generations, while upholding human rights and ensuring human dignity. Between these – the vision and the law – there lies only harmony, not conflict.”
In R(Saifi) vs. Governor Of Brixton Prison; this case the applicant for Habeas Corpus resisted extradition to India on the ground, among others, that the prosecution relied on a statement obtained by torture and since retracted. The Queen’s Bench Division court accepted the Magistrate Judgment that fairness did not call for exclusion of the statement, but was clear that common law and the domestic statute gave effect to the intent of Article 15 of the international convention against torture and other cruel, inhuman or degrading treatment or punishment 1984.
In yet another judgment Lam Chi Ming vs. Queen; in this case the privy council summarized rejection of an improperly obtained confession in not dependant only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and the importance that it attaches in a civilized society to proper behavior by the police towards those in their custody. The appellants submit that the rejection of evidence which has or may have been procured by torture, the European convention On Human Rights compels that conclusion. SIAC is a public authority within section 6 of the Human Rights Act, 1998 and so forbidden to Act incompatibly with a convention right.
The appellants summarized their argument by saying that Article 6 of the ECHR talks of a fair trial. They summarized their argument by saying that measures directed to counter the grave dangers of international terrorism may not be permitted to undermine the international prohibition of torture. In fact Article 3 of the European convention is an absolute prohibition, not derogation in any of the circumstances.
In Chhehl vs. U.K; article 3 enshrines one of the most fundamental values of a democratic society. The court is well aware of the immense difficulties faced by the states in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victims conduct. Article 3 makes no provision for exception and no derogation from it is permissible U/A 15 even in the event of a public emergency threatening the life of a nation.
The courts taking a completely humanitarian approach against torture even against a terrorist said, even if it suspected that a terrorist knows the whereabouts of a bomb which is about to go off, the courts cannot ratify even the use of limited torture.In Gangaram Pandey vs. Suriname; the court said, that no one may be subjected to arrest or detention for reasons and by methods which although classified as legal could be deemed to be incompatible with the respect for the fundamental rights of the individual because among other things, they are means unenforceable or lacking in proportionately.
Yet another landmark made by the European courts was in the case ofWinterwerp; it talked about the procedural guarantee in case of deprivation of liberty, the European court had indicated that the procedure followed must be in conformity with the applicable Municipal law and the convention including the general principles contained in the latter and should not be arbitrary.
Again in the Brannigan & Mc Bride vs. U.K. the court held that the periods of detention of 6 hrs, 14 hrs etc under the Prevention Of Terrorism Act were on their face incompatible with the courts prior jurisprudence.
Magna Carta charter of 1215, states that no free man shall be imprisoned or dispossessed except by the lawful Judgement.
In Ireland vs. U.K; in this case Article 3 was in question. The court came to the conclusion that even if it is suspected that a terrorist knows the whereabouts of a bomb, which is about to go off, the courts cannot ratify even the use of limited torture.
Whether judicial review lies
The basic question here is to what extent the judicial review lies when there is a breach of fundamental rights of the people by the executive order
The rise of terrorism and its curbing by the different agencies like the executive, the judiciary the basic question that arises is as to what extent it is appropriate for the courts to exercise close scrutiny, and when to show restraints.
In Marchiori vs. The Environment Agency and the Secretary of State for Defence; the claimant challenged the Environment Agency’s decision to issue authorizations under the radioactive Substances Act 1933, permitting the discharge of radioactive waste by ministry of Defence contractors at aldermaston and burghfield. As the court of appeal put it, the proceedings were essentially a vehicle to give effect to the claimant’s objection to nuclear weapons. After reviewing the authorities the court of appeal said—-
“ The grave a matter of state and the more widespread its possible effect, the more respect will be given, within the framework of the constitution, to the democracy to decide the outcome”.
Basically Judicial review would remain available to cure the “ theoretical possibility of actual bad faith on the part of the cabinet ministers making decisions of high policy”.
In Abbasi and ors vs. Secretary Of State for the Home department; he appeals against his capture by the United States forces in Afghanistan. In 1920 he was transported to Guantanamo Bay in Cuba. He was held captive for eight months without access to a court or any other form of tribunal or even to a lawyer. His mother brings the proceedings on the contention that there is a violation of his fundamental right, the right not to be arbitrarily detained.
Issue that arose was whether and to what extent can the English court examine whether a foreign state is in violation of the treaty obligation or public international law where the fundamental human rights are engaged. The court rejected the application in that case, because it could not be said that the government had in any way abused its wide discretion. It is noteworthy that the court rejected the suggestion that the government should have done more to object to the detention on legal grounds, accepting that it was open to the federal government to consider that “ the political significance of the decisions at issue was essentially more important than the effect of legal arguments on the position of the occupying powers”.
It was stated that the extreme cases in which judicial review would lie in relation to diplomatic protection would be if the foreign and the commonwealth office were contrary to its stated practice to refuse even to consider whether to make diplomatic representations on behalf of a subject whose fundamental rights were being violated. The extreme case where judicial review would lie in relation to diplomatic protection would be if the foreign and commonwealth offices were ,contrary to its stated practice, to refuse even to consider whether to make diplomatic representations on behalf of a subject whose fundamental rights were being violated. In such unlikely circumstances it would be appropriate for the courts to make a mandatory order to the foreign secretary to give due consideration to the applicants case.
A similar approach can be seen in the important decision of the House Of Lords inRehman vs. secretary of State for the Home Department; in this case the home secretary had decided that the appellants deportation would be “conducive to the public good” under section 3(5)(b) of the immigration Act 1971. The decision was based on the Home Secretary’s conclusions as to the appellant’s involvement with the terrorist organization operating in the Indian subcontinent (which was seeking the liberation of Kashmir”). The appellant successfully appealed to the Special Immigration Appeals Commission, who could not understand how conduct prejudicial to the national security of the Indian sub continent could be prejudicial to the national security of the united kingdom. In the House Of Lords, however which granted the Home secretary’s appeal, Lord Hoffmann took the view that SIAC was not entitled to differ from the opinion of the Home Secretary on the question of whether, for example, the promotion of terrorism in a foreign country by a UK resident would be contrary to the interests of the UK own national security. In the carrying out of such assessments, the courts should extend the appropriate degree of deference to the executive.
This is not to say, of course, that the whole decision on whether deportation would be in the interests of national security was surrendered by the court to the Home secretary. For example, the question whether deporting someone would expose him to the risk of ill- treatment contrary to Article 3 of the convention would be a matter which would certainly not lie within the exclusive province of the executive. This is an indication that the courts are prepared to distinguish between those elements of a decision which attract deference and those which do not.
The concept of judicial review can only be exercised—– keeping in view the fact how well equipped and how ready the courts are having regard to the particular subject matter
Yet another case of R vs. Marper; in that case the court of appeal held that it was not contrary to Article 8 of the convention for fingerprints and DNA samples taken from the suspected offenders to be retained in cases were the individual in question was either acquitted or the charge was dropped. The particular point that weighed heavily with the court of Appeal was that, in determining the issue, the court of appeal had to balance the benefit which the fingerprints and the DNA samples would achieve in the fight against crime on the one hand, as against the infringement of individual privacy which would be involved in their retention. In determining on which side of the line the answer fell, the court of appeal paid particular attention to the fact that the police were in a better position than the court to assess the scale of the contribution which the fingerprints and DNA samples could make to the prevention of crime.
In A, X and Y and others vs. Secretary Of State for the Home Department;in this case the Court Of Appeal heard the Government’s Appeal. The court of appeal held that:
“Whether the Secretary of State was entitled to come to the conclusion that action was only necessary in relation to non-national suspected terrorists, who could not be deported, is an issue on which it is impossible for this court in this case to differ from the secretary of state. Decisions as to what is required in the interests of national security are self evidently within the category of decisions in relation to which the court is required to show considerable deference to the secretary of state because he is better qualified to make an assessment as to what action is called for.
The Lord Chief Justice added, “ The court retains its supervisory role”.
In yet another case of Rahman’s; Judicial deference was shown by the courts in the field of National security. In this case the fundamental issue that arose was of discrimination between the Nationals and the Non Nationals. The Lord Chief Justice declared that the court was required to examine whether the Home Secretary’s conclusions were based on “Objective, Justifiable, and the relevant grounds”. The court of appeal was satisfied on the basis of evidence and arguments adduced on behalf of the government, that in the event there was no discrimination in this case. The court of appeal was satisfied that, in international law , nationals have always greater right than foreigners, not least the right to live in the UK. The right of foreign immigrants is essentially the right for the time being not to be removed to a third country for their own safety. The detainees in question were much better off as a result of the Human Rights Act; because their cases had received much greater scrutiny then would otherwise would have been the case. The court also acknowledged that, to avoid discriminating against foreigners, the powers of protective detention would have had to be extended further than the government considered necessary: “ such a result would not promote human rights—–it would achieve the opposite result. There would be an additional intrusion into the rights of the nationals so their position would be the same as non-nationals.
No conflict between human rights and combating terrorism:
Terrorism regardless of motivation has to be condemned and countered but this has to be done taking “all necessary measures in accordance with the relevant provisions of international law and international standards of human rights to prevent, combat and eliminate terrorism, whenever and by whoever committed”. This has to be achieved within the framework of rule of law. The Vienna Declaration and programme of action adopted on 25 June 1993 categorically asserted:
“The acts, methods and practices of terrorism in all its forms and manifestations, as well as linkage in some countries to drug trafficking, are activities aimed at the destruction of human rights, fundamental freedoms and democracy, threatening territorial integrity, security of States and legitimately constituted governments. The international community should take the necessary steps to enhance cooperation to prevent and combat terrorism.”
The responsibility for the security of our land, and the fight against terrorism, are patriotic duties and the integrity of the state must be preserved and the terrorism – the sworn enemy of civil society – which respects neither life, nor law nor any human rights, must be suppressed. Yet we must fight this just war using means that are righteous, that is in conformity with our Constitution, our law, and our treaty obligations. This is no easy task. But then it is never easy to live by ideals and it is the ideals that distinguish civilized people from barbarians.
It must be remembered that there is a clear and emphatic relationship between national securities and the security and integrity of the individuals who comprise the state. Between them, there is a symbiosis and no antagonism. The nation has no meaning without its people. John Stuart Mill emphasized that:
“ The worth of a nation is the worth of the individuals constituting the nation”.
This is the emphasis laid in the Constitution of India, which holds out the promise to secure both simultaneously.
Often doubt is raised about the possible conflict between respect for human rights and combating terrorism. There is really no such conflict. International humanitarian law is a part of human rights law applicable even in armed conflict. There is a growing convergence between the two since the object of both is the same and that is to respect human dignity and abjure needless violence. The fundamental concepts of laws of war are based on the balance between military necessity and humanity, which includes proportionality of the force used. Military necessity does not admit of cruelty or wounding except in fight nor of torture to extract confessions. Geneva Conventions are for humane treatment even of the POWs. How a party to a conflict is to behave in relation to people at its mercy is governed by humanitarian laws. If humane considerations prevail even in armed conflict with an enemy, the treatment of persons dealt with in low intensity conflict cannot be harsher because they are often not even enemies of the nation. The whole regimen of Hague laws and Geneva laws covers the field and there is growing convergence between them.
No person who supports human rights can support terrorism, which is a grave violation of human rights. There is no conflict between respect for human rights and combating terrorism.
Ms. Mary Robinson, the UN High Commissioner for Human Rights, recently in India to receive the Indira Gandhi Prize for Peace, Disarmament and Development, emphasized this fact when she stressed that
‘government action must be guided by human rights principles, which strike a balance between the enjoyment of freedoms and the legitimate concerns for national security.’ She added, ‘I am concerned that some governments are now introducing measures that may erode core human rights safeguards.’
The next question and a vexed one, is: How do or should democratic States which adhere to the Rule of Law and respect basic human rights deal with this menace?
Undoubtedly, the specter of terrorism is haunting many countries of the world. It has acquired a sinister dimension. The terrorist threats that we are facing are now on an unprecedented global scale. But it must be remembered that the fundamental rationale of anti-terrorism measures has to be to protect human rights and democracy. Counter terrorism measures should, therefore, not undermine democratic values, violate human rights and subvert the Rule of Law. Consequently, the battle against terrorism should be carried out in keeping with international human rights obligations and the basic tenets of the Rule of Law. No doubt “the war on terrorism” has to be relentlessly fought but that should be done without going over-board and in effect declaring war on the civil liberties of the people. The protection and promotion of human rights under the Rule of Law is essential in prevention of terrorism. If human rights are violated in the process of combating terrorism, it will be self-defeating. It is imperative that the essential safeguards of due process and fair trial should not be jettisoned. We should emphasize that basic human rights and more particularly Economic, Social and Cultural Rights must always be protected and not derogated from.
In addressing the Security Council on 18th January 2002, the Secretary-General stated:
“While we certainly need vigilance to prevent acts of terrorism, and firmness in condemning and punishing them, it will be self-defeating if we sacrifice other key priorities – such as human rights – in the process”
Speaking on terrorism, Ms. Mary Robinson the then United Nations Commissioner for Human Rights, cautioned against the violation of human rights in the global ‘fixation’ with the war against terrorism and said:
“ What must never be forgotten is that human rights are no hindranceto the promotion of peace and security. Rather they are an essential element of any strategy to defeat terrorism.”
While dealing with some fundamental issues relating to terrorism in the Annual Report of 2001 she said:
“There should be three guiding principles for the world community: the need to eliminate discrimination and build a just and tolerant world; the cooperation by all States against terrorism, without using such cooperation as a pretext to infringe on human rights; and a Strengthened commitment to the rule of law.”
“… true respect for human life must go hand in with securing justice”, and that “the best tribute we can pay to the victims of terrorism and their grieving families and friends, is to ensure that justice, and not revenge, is served”.
It must, therefore, stand as a caution that in times of distress, the shield of necessity and national security must not be used to protect governmental actions from close scrutiny and accountability where the same affect enjoyment of human rights. In times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from petty fears and prejudices that are so easily aroused. Indeed, in the face of terrorism, there can be no doubt that the State has not only the right, but also the duty, to protect itself and its people against terrorist acts and to bring to justice those who perpetrate such acts. The manner in which a State acts to exercise this right and to perform this duty must be in accordance with the Rule of Law. ”
There can be no alibis or justification for terrorism under the spurious slogans of self-determination and struggle for liberation. As Senator Jackson has aptly stated:
“The idea that one person’s ‘terrorist’ is another’s ‘freedom fighter’ cannot be sanctioned. Freedom fighters or revolutionaries don’t blow up buses containing non-combatants; as terrorist murderers do. Freedom fighters don’t set out to capture and slaughter school children; terrorist murderers do… It is a disgrace that democracies would allow the treasured word ‘freedom’ to be associated with acts of terrorists”.
When there is tyranny and wide spread neglect of human rights and people are denied hope of better future, it becomes a fertile ground for breeding terrorism. The existence of social, economic and political disparities in a large measure contribute to the eruption of conflicts within the State and beyond. The importance of promoting Economic, Social and Cultural Rights to contain such conflicts must, therefore, be realized and appreciated. The protection and promotion of Economic, Social and Cultural Rights must go hand in hand with protection of Political Rights for giving human rights a true meaning. The neglect of Economic, Social and Cultural Rights gives rise to conflicts and emerging forms of terrorism, which are threatening the democratic societies worldwide. It cannot be denied that disillusionment with a society where there is exploitation and massive inequalities and whose systems fail to provide any hope for justice are fertile breeding grounds for terrorism, which more often than not thrives in environments where human rights and more particularly Economic, Social and Cultural Rights are denied by the State and political rights are violated with impunity both by the State and non-State actors. Systemic denial of Economic, Social and Cultural Rights, like right to food, health, education etc. are causatic factors of conflict and terrorism. Any worthwhile strategy to resolve conflicts and terrorism will have to ensure enjoyment of the full range of Economic, Social and Cultural Rights.
Terrorists take recourse to different forms of violence to achieve their objectives – to subvert the system – by acts of terror and violence. They resort to “deliberate and systematic” use of coercive intimidation. More often than not, a hardened criminal today takes advantage of the situation and by wearing the cloak of terrorism, aims to achieve for himself some acceptability and respectability in the society because a terrorist is often projected and respected as a hero by his group and misguided youth. In many countries, ever-growing fundamentalism in its various forms and manifestations aimed at imposition of a religious or ideological will on the society is, today, another form of terrorism posing a serious threat to peace, order and harmony. While all faithfuls believe in harmony and brotherhood in religion, it is the misguided fanatics who do not value human life and in the name of religion resort to all types of attacks on human rights. These include forcible imposition of self-righteous social or moral code and undermining of freedom of expression and belief. Fundamentalism is sometimes used to exploit innocent citizens in the name of religion to secure “political” advantage over the rivals, unmindful of the harm their actions may cause to the nation by such exploitation. They contribute to a climate of religious bigotry, which leads to discrimination, harassment and attacks on all those who do not follow their dictates which may be right or wrong, on believers of other faiths. In doing so, they violate human rights of fellow citizens without any justification whatsoever. Terrorism grows and thrives on ‘hatred policy’ – be that of rival political groups or fundamentalists or enemy agents. Indifference of the society to such acts encourages terrorists — loud and positive condemnation of their activities by the society, on the other hand is bound to discourage them. Today, we are exposed to a continuous impact of frightening possibilities against which individuals confine themselves by withdrawing in the psychological bunkers. Everyone must wake to meet the challenge of terrorism. A violent group whatever its politics, has no right to kill, and no claim to such a right must ever be allowed.
We must acknowledge, that although nothing justifies terrorism, far too many people live in conditions where internal conflict can breed. It is common knowledge that systemic human rights violations by the State and non-State actors for long periods of time are often the root cause of developing conflicts leading to terrorism. When there is tyranny and wide spread neglect of human rights and people are denied hope of a better future, it becomes a fertile ground for breeding terrorism. The glaring social, economic and political disparities and inequalities in which there is exploitation of man by man in a large measure contribute to the eruption of conflicts within the State and beyond. It cannot be ignored. The neglect of Economic, Social and Cultural Rights gives rise to conflicts and emerging forms of terrorism which are threatening the democratic societies worldwide. It cannot be denied that disillusionment with a society where there is exploitation and massive inequalities and whose systems fail to provide any hope for justice are fertile breeding grounds for terrorism, which more often than not thrives in environments where human rights are denied by the State and are violated with impunity both by the State and non-State actors. Unemployed youth are an easy prey for the exploiters.
Recourse to violence may also be due to lack of faith in the existing social order and to an extent in the legal system for its failure to protect properly the rights of the victims of crime and the society at large. The lack of faith in the efficacy of the present legal system gives rise to frustration and violence breeds in the womb of frustration. Effort has, therefore, to be made to improve the dispensation of criminal justice delivery system so that the faith of the common man in the legal system is maintained. One of the basic criticism against the present system of criminal justice is that it has failed in its essential purpose of protecting the society by deterring the criminal and, therefore, the system needs to be given a second look.
Where terrorism has political goal, it can be called as politics with violence and it is almost impossible to separate politics from the public. Political ambitions of parties and party leaders, which thrive on creating an atmosphere of hatred between different groups in a society in no small measure, further the growth of terrorism. Attempts made at rigging of the polls, to capture booths and frighten opposing electorate, at different stages of elections, may find an ultimate expression, at a different plane, in the form of ‘terrorism’. Our experience also shows that the encouragement given by recognized and established ideological groups in the political field to anti-social and violent elements, for narrow political gains, eventually and in the long run institutionalise violence and that promotes terrorism. Political terrorism derives its following not only from the dedicated or hardcore element but through misguided cadre of the political oriented groups and anti-social elements, hardened criminals, smugglers, drug peddlers and the misguided youths
The recent dastardly terrorist attacks in America on September 11, 2001 have generated worldwide panic and triggered the call for stricter laws to combat terrorism. Our own country is no exception even though in effect the situation here remains substantially the same as before September 11. ‘In a world which has changed not for the better after the September 11 attacks, there is need to reinforce the rule of law and international human rights and for ensuring that tolerance was not looked upon as luxury but a way of life. ’In these difficult times there is need to check expression of anger. We must not be carried away by the knee jerk different reaction of other countries.
The General Assembly of the United Nations considered the item entitled “Measures to Eliminate International Terrorism” in its resolution 22/158 of December 12, 2000 and while strongly condemning ‘all actions, methods and tactics of terrorism as criminal and unjust, wherever and by whomever committed’, reiterated its view that such actions ‘are in any circumstance unjustifiable” and further reiterated its call to all states ‘to adopt every measure in accordance with the charter of the UN and the relevant provisions of the international laws, including international standards of human rights’. A similar view has been expressed in successive resolutions of General Assembly and the UN Commission of Human Rights on the item entitled “Human Rights and Terrorism”.
On September 28, 2001, the United Nations adopted Security Council’s resolution 1373 (2001), the sternest ever on the subject of terrorism. A series of steps are prescribed in that resolution for states to take in order to prevent terrorist attacks; and states are called upon, inter-alia, to exchange information in accordance with international and domestic law; and to take appropriate measures in conformity with the relevant provisions of national and international law, including standards of human rights.
The Attorney General for India, Mr. Soli J. Sorabjee, writing in the Sunday Times ofIndia (November 11, 2001) quotes Ms. Mary Robinson, the United Nations Commissioner for Human Rights from the Annual Report, where dealing with some fundamental issues relating to terrorism, she said:
“There should be three guiding principles for the world community: the need to eliminate discrimination and build a just and tolerant world; the cooperation by all States against terrorism, without using such cooperation as a pretext to infringe on human rights; and a strengthened commitment to the rule of law”.
He further quotes Ms. Robinson who has observed that:
“… true respect for human life must go hand in hand with securing justice,” and that“ the best tribute we can pay to the victims of terrorism and their grieving families and friends, is to ensure that justice, and not revenge, is served”.
The experience of the working of stringent laws like Maintenance of Internal Security Act (MISA) during the Emergency and TADA in the recent past with no improvement in the performance and police culture is a lesson to be remembered while devising new strategies to combat terrorism. If the so-called stricter TADA did not serve the purpose, as is well known, how can the POTO professed as a milder version do better in the same hands? It is difficult to appreciate the professed hope. Inefficacy of TADA to combat terrorism is self evident from the statistics. The substantial area of deficiency lies elsewhere, that is, in implementation of the laws. That must be remedied. Quarrel with the tools without improving efficiency and integrity of performance is meaningless.
Islam does not condone terrorism
Since in the popular perception, Islam has quite often been associated with terrorism after 9/11 it is pertinent to refer to the sermon of the Grand Mufti of Saudia Arabia to the Haj pilgrims this year. He categorically stated: ‘Shariat does not allow terrorism. Islam literally means peace.’ He called upon the believers to follow the path of moderation.
These facts indicate the need for identification of, and emphasis on the real areas of deficiency in the implementation of the existing laws together with the assurance of speedy trials. The remedy does not appear to be in the enactment of more stringent laws, which transfer judicial power into executive hands and result in the denial of a fair trial to the accused with the added potential danger of harassment of innocents and the violation of their human rights without effective remedies. The need is of systemic reforms to improve the image and performance of the enforcement agencies with effective accountability to prevent misuse of public power. Conferment of larger powers, if needed even then, must follow only thereafter.
The need is also to identify the causes for the rise in the phenomenon of terrorism other than that which has trans-border genesis and support. Good governance ensuring realization of the constitutional promise of promoting socio-economic justice, eradicating causes which give rise to a genuine sense of injustice must be seriously addressed as effective strategies to combat terrorism. A genuine sense of injustice harbored by the marginalized must be effectively addressed. Rampant corruption is a major cause of the pervading sense of injustice in the civil society. It also provides a nexus as well as the means for promoting crimes and terrorism.
To combat terrorism in the true sense, the strategies adopted must not be confined merely to identification of terrorists and their elimination by revenge, not justice, but must extend to diagnosis of the malady and finding a permanent cure. Combating terrorism under the rule of law must necessarily have this meaning. A limited approach may help eliminate some present terrorists but not the causes or the phenomenon of terrorism, which produces terrorists; and that too at the cost of violation of human rights of many innocents. A proper balance between the need and the remedy requires respect for the principles of necessity and proportionality. Performance of this balancing trick is the mission of the rule of law to which our nation is committed. Let us not be carried away by possible short-term gains at the cost of long-term interests. The war against terrorism must be won under the rule of law.
“It is a delusion to think that the nation’s security is advanced by the sacrifice of the individual’s basic liberty. The fears and doubts of the moment may loom large, but we lose more than we gain if we counter with a resort to alien procedures or with a denial of essential constitutional guarantees.”
Undoubtedly, the specter of terrorism is haunting many countries of the world. It has acquired a sinister dimension. The terrorist threats that we are facing are now on an unprecedented global scale. But it must be remembered that the fundamental rationale of anti-terrorism measures has to be to protect human rights and democracy. Counter terrorism measures should, therefore, not undermine democratic values, violate human rights and subvert the Rule of Law.
The menace of terrorism has to be curbed and the war against terrorism has to be fought relentlessly but in doing so, no democratic society can be permitted to chill civil liberties of the citizens. In the fight against terrorism, sensitization level of human rights cannot be allowed to be sacrificed. A terrorist who violates human rights of innocent citizens must be punished but his human rights should not be infringed except in the manner permitted by law. A critical task of striking a fair balance by way of security concerns and human rights is to be performed and need of proportionality must not be ignored. While fighting war against terrorism relentlessly, the State cannot be permitted to be either selective in its approach or to go over board and in effect declare a war on the civil liberties of people because the rationale of anti-terrorism measures is aimed at protecting human rights and democracy. Counter terrorism measures should, therefore, not undermine democratic values or subvert the rule of law. It is during anxious times when care has to be taken to ensure that state does not take recourse to bend the rule of law.
Our experience shows that the rubric of counter-terrorism can be misused to justify acts in support of political agendas, such as the consolidation of political power, elimination of political opponents, inhibition of legitimate dissent. Labeling adversaries as terrorists is a notorious technique to de-legitimize political opponents. It is during anxious times that care has to be taken that state does not take recourse to bend the Rule of Law to accommodate popular sentiment for harsh measures against suspected criminals. An independent judiciary and the existence of an effective human rights institution are indispensable imperatives for protection of fundamental human rights in all situations involving counter-terrorism measures. It provides vital safeguards to prevent abuse of counter- terrorism measures. Counter- terrorism or anti-terrorism measures must, therefore, always conform to international human rights obligations.
It must, therefore, stand as a caution that in times of distress, the shield of necessity and national security must not be used to protect governmental actions from close scrutiny and accountability where the same affect enjoyment of human rights. In times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from petty fears and prejudices that are so easily aroused.Indeed, in the face of terrorism, there can be no doubt that the State has not only the right, but also the duty, to protect itself and its people against terrorist acts and to bring to justice those who perpetrate such acts. The manner in which a State acts to exercise this right and to perform this duty must be in accordance with the Rule of Law.
In their correct perspective, it needs to be pointed out that human rights of citizens which are first of all ethical norms for treatment of an individual in the society are non-negotiableand non-derrogable. No compromise with violations of the same is permissible in any civilized society. These rights recognize the essential worth of a human being and acknowledge the dignity inhering in all human beings, irrespective of their race, sex or economical level of living. While this is a historical fact, it is also a reality that the cult of terrorism strikes at the very root of human rights of innocent people. Terrorism and human rights are natural enemies with no possibility of their co-existence. No person who supports human rights can support terrorism, which results in a grave violation of human rights of innocent citizens. The growing menace of terrorism is a fight between barbarism and civilization and is a morally degrading means of struggle, with no justification whatsoever. It is not merely a heinous criminal act – it is more than mere criminality. It poses a formidable challenge to the enjoyment of human rights.
 Remarks by the coordinator for counter terrorism Ambassador Philip C. Wilcox Jr before the Denver Council On Foreign relations.
 Acc to walter Laqueur: one of the world’s experts on terrorism and the guerrilla warfare, recently retired from the Kissinger chair at the center for Strategic and international studies in Washington D.C. his latest book is the voices of terror.
 Hitendra Vishnu Thakur vs. Union Of India; (1994) 4 SCC 602.
 Observations made in the Holdsworth Lecture on 30 November 2001.
 A linguist, who is interested for fighting for any good cause.
 Article 29 of the universal declaration Of human rights; expressly recognizes the duties of everyone to the community and the limitation on the rights in order to secure and protect respect for the rights of others.
 Peoples Union For Civil Liberties vs. Union Of India; (2004) 9 SCC 580.
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 Pulpit call from Haj: Stay away from terror; Hindustan Times; January 11, 2006.