The human cost of crime and terrorism in particular, has been felt in every region of the world. According to the United Nations (UN), terrorism has real and direct impacts on human rights, the consequences of which are too devastating to allow the freedom to enjoy life and the physical integrity of the victims. Security of citizens is a basic human right and, accordingly, the protection of such right is a primary obligation of all Governments around the world (Talihärm 2013, p. 25). It follows, therefore, that Governments and States are obligated to protect the human rights not only of their nationals but also others within their jurisdictions by taking appropriate measures against the threat of crime, terrorism and terrorist acts. However, on the other hand, the measures that States have adopted to fight against crime and terrorism have been criticised for being challenges to ensuring the enforcement and practice not of only human rights but also law. This is especially in the context of some States engaging in inhuman treatment and torture to fight against terrorism while disregarding the legal and humane approaches available to them (Donnelly &Whelan 2017, p. 69). With reference to police power and the Terrorism Act, this paper will focus on the UK to critically discuss the topic whether infringements on human rights can be justified in the fight of crime and terrorism.
It is imperative to begin the critique of the concept of infringement on human rights in the fight against terrorism by defining human rights. These are essentially legal guarantees and universal values that protect groups and individuals from omissions and actions by State agents aimed at interfering with basic liberties, human dignity and entitlements (UNCHR 2008, p. 3). Human rights inherently belong to all human beings, meaning they apply universally, are indivisible and interdependent. According to UNHCR (2008, p. 3), the full continuum of human rights entails protection and respect for social, cultural, civil, economic and political rights. From this overview, it is apparent that under no circumstances can the infringement of an individual’s human rights be justified. This provision of respecting human rights does not exclude the fight against terrorism or any other form of crime (Forsythe 2017, p. 42). While this argument does not in any way support terrorists and their activities, it only acknowledges that the measures implemented to fight terrorism views certain individuals as criminals first, and as then as humans. According to (Rumsey 2014, p. 9), when one is viewed s human only after being profiled as something else, their human rights are already taken away from them and that cannot be justified.
The British Parliament has since 2000 to present enacted Terrorism Acts designed to counter terrorism. These Acts were consequences of the September 11 attack in New York and the July 7 London attack as well as the politics of the Global War on Terrorism. Presently, there are various regulations, Acts of Parliament, rules and Orders that provide guidance for special powers to the police for counterterrorism. While a significant number of the new laws are necessary, a significant other is not (Walker 2016, p. 112). Walker (2016) claim that most are dangerously wide and negatively affect vast numbers of people disproportionately. These include ethnic/religious minority groups and peaceful protesters, effectively undermining their basic human rights. On one hand, it my correctly be argued that necessary force and strict measures are necessary in order to law enforcers to effectively fulfill their mandate. However, on the other hand, the Terrorism Act also features excesses that do not support the globally accepted initiatives of international humanitarian law (IHL). For instance, detaining suspected foreign nationals indefinitely without charge and the unfair control and monitoring orders impose intrusive and severe prohibitions (Efrat 2015, p. 330). In defence of such acts, law enforcers claim that the human rights safeguards in place undermine and compromise the effective utilisation of the counterterrorism powers vested in them. Nonetheless, referring back to the definition of human rights by the UNHCR, such defense cannot serve as justification for infringing on individuals’ human rights.
The parliamentarians newly defined terrorism and effectively gave rise to a new set of police powers and course of action in response to terrorism which is beyond those that have been used in the context of ordinary crime. Essentially, the new powers and procedures allowed law enforcers to stop and search any individual and vehicle in certain predetermined areas without necessarily suspecting such individuals (this was provided for in section 44 of the Terrorism Act 2000 but has recently been repealed) (Margulies 2013, p. 2137). On one hand, positive human rights have been reported in the UK as well as other countries in which the UK has played a part in countering terrorism. For example, there is a promise of religious freedom, freedom of speech and women’s rights. Further, Taliban rule was brought to an end in Afghanistan and the conflict resolution process was strengthened in Sri Lanka. Equally importantly, the Terrorism Act was used to constrain the support Kashmiri terrorists received from Pakistan. Essentially, the ideal situation advocated for by the UNHCR is that the implementation of counter-terrorism measures and the protection and promotion of human rights should be mutual and complementary initiatives and efforts (Clapham 2015, p. 93). Therefore, human rights activists should not be a barrier to achieving the global goal of eliminating terrorism and the police should not violate human rights in the efforts to address terrorism.
However, the war on terror has negatively impacted on efforts aimed at ensuring human rights and the Terrorist Act has also drawn negative domestic criticism within the UK as well as from international stakeholders. For example, the result of the Act has been the disproportionate use of police powers against certain communities and religious faith (Ross 2016, p. 315). The problem is that the police use their power disproportionately mainly due to stereotyping rather than established facts (Ross 2016, p. 315). Ideally, the provisions of anti-terrorism have been used to justify the infringing of human rights not only of suspected terrorists but also citizens and ordinary political opponents. According to human rights bodies such as Liberty (The National Council for Civil Liberties) in the UK, the intensified efforts aimed at countering terrorism have increased suffering among innocent civilians. More specifically, Liberty argues that the manner in which anti-terror powers are used is leading to feelings of isolation among some communities and they single out Muslims. The detention of individuals from certain communities and religious faith without trial is not only symbolic but also the most outstanding example of disproportionate treatment under law where their rights are perceived as inferior to those of communities and religions (Choi & James 2016, p. 900). Indeed, in the UK Muslims are among the most criminalised and marginalised communities primarily because of the stereotyped notion associated with their faith and, to an extent, their Arabic background (Choi & James 2016, p. 901). When the provisions of internment are extended to British nationals only on the basis of suspicion by the police, it may be perceived as war on Islam rather than war on terror. Effectively, the move only further extremism, which is precisely what human rights bodies are fighting against.
Following the terrorist attack in London, security continues to be a major concern, with efforts seeking to restrict the movement and freedom of terrorist suspects. In that context, police power is imperative to help curb the spread of terrorist ideologies and activities within the UK. It must be noted that the threat of violent extremism no longer stems from countries such as Afghanistan and Iraq; rather, it has evolved and is now home grown within UK communities (Zedner 2016, p. 222). However, proponents of the war on terror argue that the use of police power has yielded positive results mainly as acting as a deterrent especially with regards to UK nationals being lured into terrorism (Wilson 2016, p. 331). However, the restricting of movement and freedom of terrorist suspects is only based on circumstances where there is enough evidence to show suspects are a threat but insufficient evidence to fully prosecute them in court. At that point, such initiatives conflict with human rights laws that guarantee the freedom of suspects. The fundamental relationship between the phenomenon of terrorism and human rights law and in particular the interrelation between counter-terrorism responses and international human rights law cannot be refuted. However, responses to terrorism entail choices that have implications for the rule of law as well as its observance and advancement. On one hand, States and law enforcement agencies argue that terrorism cannot be defended, accepted or justified and must be stopped in order to protect the society (Kilburn et al 2011, p. 21). On the other hand, human rights societies argue that efforts to protect the society from terrorism work against themselves if the results are always the loss of the freedom through which the society they are trying to protect is defined.
Regional and international human rights laws recognise and acknowledge the duty and right of States to guarantee protection to individuals who are subject to their jurisdiction. However, some of the measures adopted by States to protect individuals are in themselves considerable challenges to the duty to protect life and the right to life itself (Feinberg 2015, p. 404). The way policing is conducted is proving to be disproportionately targeting certain ethnic/religious groups, the implied message being that every member of those groups is a suspect. While police power forms a crucial foundation upon which their operational strategies are built, it has also licensed them to become religious and racist extremists, much like the terrorists they are fighting against (Margulies 2013, p. 2138). For example, the stop and search police power was used disproportionately against peace protesters, young black men, journalists and students yet has not resulted in a single arrest of a terrorist (Margulies 2013, p. 2141). It may be argued that it is in acknowledgement of the inappropriate and disproportionate use of the power (in designated areas) that the stop and search aspect was repealed.
With reference to the definition of human rights by the UNHCR (2008, p. 3), every individual is protected against the illegal and subjective interference with their freedom. Equally importantly, the protection applies in all other contexts such as criminal proceedings that potentially affect individual’s liberty. On one hand, according to Article 6 of the Justice and Security Act 2015, terrorist suspects are entitled to legal advice in the event that they go through legal proceedings (Efrat 2015, p. 345). However, on the other hand, the detention by law enforcers without trial and forceful transfer to jurisdictions where torture is eminent does not comply with this provision. The right to life, alongside the prohibition of torture, is a specific focus of human rights. According to (Ross 2016, p. 319), the right to life in its own context places upon the State and law enforcers a set of positive obligations protection, prosecution and punishment. A critical analysis of this assertion shows that the right to life is in itself a public protection mechanism that should limit the subjective use of lethal force. Agreeably, as claimed by (Zedner 2016, p. 227), police have not only the power but also provision and room within human rights law to use lethal force against terrorists when they are themselves under attack. However, it is not always that the police have based their use of lethal force on genuine and honest beliefs of impending harm.
Basing on the above arguments and from the perspective of the definition of human rights by the UNHCR, it is concluded here that the infringement of an individual’s human rights cannot be justified in the fight against crime and particularly terrorism. The police’s implementation of counter-terrorism measures and the protection and promotion of human rights should not be initiatives that oppose each other; rather, they should be mutual and complement each other. The new definition of terrorism gave rise to and is accountable for the larger proportion of infringement in individuals’ human rights particularly in the force of discrimination and disproportionate use of measures by police to fight terrorism. If such measures are not used to fight terrorism for what it is but discriminate against individuals for who they are, they cannot justify the infringement of their human rights. In any case, even terrorist suspects are afforded the right to fair legal representation, which is a function of human rights, under Article 6 of the Justice and Security Act 2015.
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