By Sneha Baul, CLC, Faculty of Law, Delhi University.
Human Rights are the inherent rights, which are basic, fundamental and pervasive in nature. With the Universal Declaration of Human Rights, 1948 and a series of other multilateral treaties and other declarations concluded through the United Nations, the human rights had been recognized universally beyond the peripheries of the nations. Articles 55 & 56 of UN Charter impose upon United Nations and its members respectively, obligations to promote and observe human rights. But the challenges against enforcement and non-violation of human rights are massive and dire. This hindrance is due to the encroaching terrorism and its consequences, which violate the human rights and the rule of law. Human rights and terrorism are correlated as it concerns both its victims and perpetrators. The Universal Declaration of Human Rights recognizes the inherent dignity and inalienable rights of all members of the human beings. But terrorism violates this right of dignity of victims, which is enshrined in Article 3 of UDHR. It does not end with the plight of the victims; rather the suspected perpetrators also suffer in the course of apprehension and prosecution.
Human Rights are the universal byelaws and legal guarantees that protect individuals and groups against arbitrary omission and action of the State agents that interfere with the freedom, dignity, civil and political rights, et al. Terrorism is a dreadful form of violence against the society. It contravenes the generally accepted norms of social order, right to survival, and right to life. Terrorism is one of the manifestations of increased lawlessness and cult of violence. The terrorists have their own cult; cult of violence which targets not the citizens, but the State. Mostly young people are absorbed in as suicide bombers as they are brainwashed to sacrifice their lives for the mission of terrorism. This is also known as Glorification. Glorification or religious glorification of terrorism works as brain storming for evolving missionary zeal in terrorists. This zeal is about ruffling the world peace, social development, security and human rights. So the contention of being stricter to deal with the convicts of terrorist activities and cutting off the basic human rights while dealing with them is itself against the spirit of Human Rights ascertained by the UDHR 1948. Because at the end of the day, some convicts are the pawns at the hands of the bigger powers. These young convicts are brainwashed who need to be counseled out of the cult of terrorism. Besides, security of individual is a basic human right which is an obligation of Government. The State, therefore, has an obligation to ensure the human rights of the nation by taking positive measure to eliminate the threat of terrorism by bringing the perpetrators of such acts to justice.
Several conventions, treaties, norms, councils have come into force to observe the non-violation of human rights. But these laws apply universally and equally to one and all as the makers do not recognize terrorism and violence as legitimate action arising out of any ideological commitments. No action can validate terrorism anywhere in the world for there can be no freedom, equality which restrict freedom or upholds inequality.
LAWS RELATING TO TERRORISM:
The negative impact of terrorism on the human rights has been realized by the UN, the Commission on Human Rights.
India is no bereft of terrorist attacks. The first prominent anti-terrorism law enacted in 1985 was the Terrorism and disruptive Activities (Prevention) Act. An Act to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. But the act was criticized for violating human rights. For instance, it prohibited free speech, a person can be detained for one year without any trial, and the accused can be detained in police custody up to 60 days. This provision increases the risk of torture and violates the provision of fair trial. Next in line was the POTA- Prevention of Terrorism Act. It was enacted in 2002 after the terrorist attack in Indian Parliament building and several other terrorist attacks. The act defined what a “terrorist” is, and granted special powers to the investigating authorities. But there had been reports that the act has been abused, therefore it was repealed by the Prevention of Terrorism (repeal) Act 2004.
After the terrorist attack in Mumbai in November 2008, new and better anti-terrorism laws were passed. Two of such legislative bills were the Unlawful Activities (prevention) Amendment Act, 2008 and the National Investigation Agency Act, 2008.
CHALLENGES PERTAINING TO HUMAN RIGHTS WITH RESPECT TO TERRORISM:
One of the basic hindrances of implementing effective counter-terrorist measures are the reduction of civil liberties, hamper of right to life and individual privacy. It affect the citizens as well as those who are detained by the state as accused. It cannot be denied that at times, measures designed to tighten security have been seen as abuses of power or violation of human rights. Following are few challenges:
- RIGHT TO LIFE: Right to life is an inherent right of every human being. Terrorism abuses the right to life. The Human Rights Committee has stated that targeted killings should not be used as a deterrent or punishment, that the utmost consideration should not be used as a deterrent or punishment and the utmost consideration should be given to the principle of proportionality. In the context of counter terrorism, the High Commissioner for Human Rights has emphasized the importance of ensuring that the entire law enforcement machinery, from police officers to prosecutors and officers operating detention and prison facilities, operates within the law. It has been kept in mind that, in the fight against terrorism, extreme vigilance should be applied by those in a position of authority against all forms of abuse of power and that they should install a culture of respect for the law above all by those entrusted with its application. Therefore, the State should give away stringent guidelines that disproportionate use of weapons should be investigated. Article 3 of Universal Declaration of Human Rights proclaims, ‘Everyone has a right to life, liberty and security of person’. Hence, no man can be deprived of his life and liberty without any substantial and proportionate cause. Similarly, the right to liberty is also significant. The laws should not arbitrarily detain the suspect in detention without fair trial.
In order to be considered justifiable and in line with human rights, the use of perilous weapons and force must comply with the principle of proportionality and necessary for self defense or defense of another’s life or property. Instead non lethal warfare must be used to respect the human rights. Where the need of danger ends, the need for self defense ends.
- PROHIBITION AGAINST TORTURE: Torture and inhumane treatment should be prohibited while dealing with the suspects. The prohibition of torture, or degrading treatment or punishment is absolute under international law. This is a norm of JUS COGEN. Jus Cogen means a rule or principle in international law that is so fundamental that it binds all the states and does not allow any exceptions. Such rules also known as peremptory norms, will only amount to jus cogen rules if they are recognized by the international community. Therefore, the prohibition of torture is jus cogen. The State should adopt effective policies to deal with terrorism without circumventing the rule of jus cogen. For example, the use of torture and other cruel, inhuman or degrading treatment to elicit information from terrorist suspects is absolutely prohibited, as is the use in legal proceedings of evidence obtained by torture, whether at home or abroad, and of secret evidence put forward by prosecuting and other authorities in judicial proceedings, in violation of the principles of non-admissibility of evidence extracted by torture. Contained inter alia in article 15 of the Convention against Torture.
The problems which arise are prolonged incommunicado detention without any judicial review; the convicts are subjected to the risk of torture during the transfer, return and extradition between or within countries. To retain evidences, the suspects are forced and tortured which goes against the rules mentioned in International Covenant of Civil and Political Rights. The significance of this prohibition is that among the suspects some are innocent, and the Human Rights law says that a person is considered innocent unless otherwise proved.
- ECONOMIC, SOCIAL AND CULTURAL RIGHTS: International Covenant on Economic, Social and cultural Rights is the part of Human Rights covenant. With terrorism, these cultural, economical and social rights are hampered. Right of self determination is affected as the citizens are not able to freely pursue their economic, social and cultural development. Usually the impact of counter-terrorism measures fall on these development objectives.
- SECURITY AND LIBERTY: According to the Constitution and International Covenant of Human Rights, all persons are protected against the unlawful or arbitrary interference with their liberty. This protection is applicable in the context of criminal proceedings, as well as other areas in which the State might affect the liberty of persons. While pursuing counter terrorism measures, the State violate the civil liberties of the individuals in the form of pre trail detention, unreported custody, and administrative detention.
The security measures are usually stringent during such attack of terrorists that restrain the rights or freedoms of citizens and breach principles of non-discrimination.
Democratic rules are essential tools in the fight against terrorism. The strategy should be such where the terrorists need to be isolated. The preference should be to treat terrorism as criminal acts to be handled through the existing law based on justice, equity and good conscience. On the other hand, full respect for human rights and the rule of law should be considered.
While international efforts have been taken to combat terrorism, which is the need of the hour, meanwhile it also focused on cooperation among states and enhancing the security systems, the proponents of the human rights aver on inclusion of human rights protection. As they say that international human rights obligations do not stop at the border and a failure to respect human rights in one state may undermine its effectiveness in the international level.
 Hitendra Vishnu Thakur v. State of Maharashtra, AIR 1994 SC 2623
 Address by High Commissioner for Human Rights, Louise Arbour
 See Report of the Sepcial Rapporteur on Torture and other cruel, Inhuman or Degrading Treatment or Punishment.