HUMAN RIGHTS AND TERRORISM
HUMAN RIGHTS AND TERRORISM
THE WAR OF TERROR AND THE WAR ON TERROR Implications for good governance and fundamental Human Rights in Commonwealth countries.
Hon. Dr Benjamin Kunbuor MP is the
Minister for Defence in Ghana. He is the Member of Parliament for the Nandom constituency. Dr. Kunbuor is a former Majority Leader of the 6th Parliament of the 4th Republic of Ghana and Member of the Executive Committee of CPA (International).
The proliferation and emergence of terrorist cells around the world puts new demands on states to rethink and reassess the nature of security threats and their order of priority. There is an interesting development that that has come to the fore with the upsurge of terrorist activities - the war on terror and the war of terror.1 As observed by Baxi, the war on terror is said to be a ‘just war’ raising the question only of how far the nomenclature may regard its efficient pursuit. It also defocuses the antecedent or on-going forms of state and international terrorism. On the other hand, he sees the war of terror as one of collective intent and capability of non-state actors and networks to deliver, organize, and implement the threat or use of force directed permanently against civilian populace and sites across the world.2 Whichever way one looks at this development, it has implications for good governance generally and respect for fundamental human rights and freedoms specifically. One of the core objectives of the CPA is to champion the course of fundamental human rights and freedoms within member states and society at large. As an association made up of peoples’ elected representatives of member states, it becomes
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an imperative for it to begin to engage the implications for human rights of the ‘war on’ and ‘war of’ terror. This article is a modest contribution in that direction. It is my hope that it will kindle interests in the subject for consideration at subsequent CPA conferences. Ghana like many countries has built a detailed legal architecture to combat the terrorist threat. This paper seeks to review this legal regime and how it could impact on respect for fundamental human rights. This article seeks first of all to briefly engage some conceptual issues as the context in which it has to be read. In addition, it will address Ghana’s legal architecture in addressing the challenges of the threat of terrorism and how this darkens or illuminates the realization of fundamental human rights within the context of good governance. Lastly, the article introduces a conversation based on the experiences of the author as a former Attorney-General of the Government of Ghana and therefore constitutionally, it’s principal legal adviser; Leader of the 6th parliament of the fourth republic of Ghana; and currently Ghana’s Defence Minister. In all these roles the author has encountered or is encountering policies on terrorism and their implementation.
Some conceptual issues Combating or overcoming terrorism will not succeed if the means to secure society are not consistent human rights standards. To that extent counter terrorism tools that do not comply with human rights are liable to be in effective. From case law of the international courts and tribunals, as well as domestic courts, and the United Nations (UN) mechanisms, we know that some counter terrorism measures have resulted in: • Prolonged detention without a charge • Denial of rights to challenge the lawfulness of the detention • Denial of the right to access legal representation • Monitoring of conversation with Lawyers • Incommunicado detention and ill-treatment; even torture of detainees as well as inhuman and degrading conditions of detention. A joint statement by a UN High Commissioner for Human Rights, the Secretary General of the Council of Europe and the Director of OSCE in 2001 states as follows: “While we recognize that the threat of terrorism requires specific measures, we call on all governments to refrain from
excessive steps which would violate fundamental freedoms and undermine legitimate dissent. In pursuing the objective of eradicating terrorism, it is essential that states strictly adhere to their international obligations to uphold human rights and fundamental freedoms .”3 The former UN Secretary General Kofi Annan had this to say on the proper approach to counter terrorism: “Human rights law makes provision for counter terrorism action, even in the most exceptional circumstances, but compromising human rights cannot serve the struggle against terrorism. On the contrary, it facilitates the achievement of the terrorist’s objective by ceding the moral high ground, and provoking tension, hatred and mistrust of government among precisely those parts of the population where he is most likely to find recruits.”4 xxxxxx In Hamdi v. Rumsfeld, the US Supreme Court Justice Sandra Day O’Connor observed that: “It is during our most challenging and uncertain moments that our nations commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”5 There is yet another conceptual challenge of an acceptable definition of the phenomenon of terrorism. This arises from the notion that there can be legitimate resort to the use of violence in certain circumstances. Replete in our history from George Washington to Nelson Mandela through liberation struggles for selfdetermination are significant texts on justifications for resort to violence. The first ill-fated attempt in an international instrument at a definition of terrorism was in 1937 in the Geneva Convention for the Prevention of Punishment
of Genocide which defined it as: “[all] criminal acts directed against a state and intended or calculated to create a state of terror in the minds of particular persons or group of persons or the general public.” The definition was said to lack precision and did not get the necessary number of ratifications. Yet a definition of terrorism is key for an instrumental global approach to combat terrorism. However the current UN draft Comprehensive Convention on Terrorism in article 2 provides a global template for global and regional engagement: Any person commits an offence within the meaning of this convention if that person unlawfully or intentionally causes: (a) Death or serious bodily injury to any person, or
(b) Serious damage to public or private property, including a place of public use, a state or government facility, public transportation system, infrastructure, or environment; or (c) Damage to property, places, facilities, or systems referred to in paragraph 1 (b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature and context, is to intimidate a population, or to compel a government or international organization to do or abstain from doing an act.6 The above definition has introduced its own controversies even on very basic issues, mainly focusing on whether the convention will apply to state armed forces and movements involved in struggles for selfdetermination. In addition,
the Islamic Conference have proposed that activities of the parties during armed conflicts including situations of foreign occupation be excluded from the ambit of the convention. As observed by Thalif Deen: “The very sticking points the draft treaty revolve around several controversial yet basic issues, including the definition of ‘terrorism’. For example what distinguishes a ‘terrorist’s organization’ from a ‘liberation movement’? And do you exclude activities of national armed forces even if they are perceived to commit acts of ‘terrorism’. If not how much of that constitutes ‘state terrorism.”7 Terrorism and Human Rights The nexus between counterterrorism measures and human rights is at a number of scalar levels, which range from
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