Human Rights Law: Does It Protect Terrorists?

The question of whether human rights law applies to terrorists is a complex and highly contested issue. On the one hand, human rights are universal values and legal guarantees that protect individuals and groups from actions and omissions that interfere with fundamental freedoms, entitlements, and human dignity. This includes protection from arbitrary arrest, detention, torture, and violations of the right to life. International human rights law, refugee law, and humanitarian law all emphasise the importance of promoting and protecting human rights and fundamental freedoms while countering terrorism and preventing violent extremism.

On the other hand, terrorism directly impacts human rights and undermines the pillars of democracy and the rule of law. Terrorists are often viewed as criminals or illegal combatants rather than soldiers, and their actions are seen as crimes against humanity rather than acts of war. The international community has developed legal frameworks, such as the UN Global Counter-Terrorism Strategy, to prevent, suppress, and eradicate terrorism while upholding human rights. However, the application of human rights law to terrorists remains a subject of debate and criticism, especially in the context of counter-terrorism measures, the use of lethal force, and the imposition of the death penalty.

The right to life and terrorism

Terrorism has a direct impact on the human right to life, liberty, and physical integrity of individuals, especially the victims of terrorism. Terrorist attacks can destabilize and undermine entire societies, jeopardize peace and security, and threaten social and economic development.

The right to life is a non-derogable right, meaning that it cannot be restricted or suspended, even in times of public emergency or threat. This is enshrined in various international human rights instruments, including the European Convention on Human Rights and the International Covenant on Civil and Political Rights. According to these conventions, states have a duty to protect the lives of their citizens and must take appropriate measures to fight terrorism.

However, it is important to distinguish between combatants and non-combatants, as international humanitarian law and the laws of armed conflict do not apply in the same way to terrorists as they do to soldiers. Terrorists often deliberately blur the lines between combatants and non-combatants by targeting civilians and failing to abide by the Geneva Conventions, which set out the rules for the humane treatment of captured combatants.

In the context of counter-terrorism, states must respect and uphold human rights, as a common goal of terrorist activities is to undermine these very rights and freedoms. Any counter-terrorism measures that ignore or violate human rights are unacceptable in a society governed by the rule of law and democratic values.

The right to personal liberty and security

The right to liberty and security is a fundamental human right, protecting individuals from arbitrary arrest and detention. This right is outlined in the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). It is also protected by various regional instruments, such as the European Convention on Human Rights and the Human Rights Act 2019 in Queensland, Australia.

The right to liberty and security applies to all forms of detention and is not limited to criminal justice processes. It protects individuals from being deprived of their liberty unless provided for and carried out in accordance with the law. This includes the right to be informed of the reasons for arrest, the right to a trial within a reasonable time, and the right to compensation for unlawful detention.

The protection of liberty and security is particularly relevant in the context of counter-terrorism, where the perceived need for security can lead to the erosion of civil liberties. For example, in the wake of the September 11 attacks, many countries introduced extraordinary measures that infringed on individual privacy rights and allowed for detention without charge.

While states have a duty to protect the lives of their citizens and the integrity of the state, this must be balanced with respect for human rights. The concept of a "war on terror" is misleading and threatens the framework of international human rights. Terrorists are criminals, not soldiers, and their actions do not amount to acts of war. Therefore, the response to terrorism must be primarily through the criminal justice system, with its built-in fair trial safeguards.

Any restrictions on individual freedoms must be continuously assessed and must not exceed what is strictly necessary and proportionate to address the threat. This delicate balance between civil liberties and national security is a recurring challenge in upholding human rights in the context of counter-terrorism.

The right to privacy and data protection

Privacy

Privacy is a universal human right, recognised in almost every country in the world, and is enshrined in the Universal Declaration of Human Rights (Article 12), the European Convention of Human Rights (Article 8) and the European Charter of Fundamental Rights (Article 7).

The right to privacy is the right to a private life, to be autonomous and in control of information about oneself. Privacy is not only an individual right but also a social value.

Data Protection

Data protection is about protecting any information relating to an identified or identifiable natural (living) person, including names, dates of birth, photographs, video footage, email addresses and telephone numbers. Other information such as IP addresses and communications content are also considered personal data.

The right to data protection is enshrined in the EU Treaties and in the EU Charter of Fundamental Rights (Article 8). The EU is unique in providing for such an obligation in its constitution.

The EU's General Data Protection Regulation (GDPR), which came into force in May 2018, is the most comprehensive and progressive piece of data protection legislation in the world, updated to deal with the implications of the digital age. It applies to organisations or companies not established in the EU who offer goods and services to individuals in the EU or monitor their behaviour.

Limitations

In the EU, privacy and data protection are not absolute rights and can be limited under certain conditions according to the EU Charter of Fundamental Rights. The rights to privacy and data protection may need to be balanced against other EU values, human rights, or public and private interests such as national security and the fight against terrorism.

Data protection authorities have a pivotal role to play in ensuring this balance between privacy and other interests, including in the domain of security.

The right to a fair trial

The key provision in the UDHR is Article 10, which states:

> Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

The European Convention on Human Rights, in Articles 5, 6 and 7, and the 7th Protocol to the convention, also enshrines the right to a fair trial.

• The right to be heard by a competent, independent and impartial tribunal
• The right to a public hearing
• The right to be heard within a reasonable time
• The right to counsel
• The right to interpretation

It is important to note that states may limit the right to a fair trial or derogate from certain fair trial rights under specific circumstances outlined in human rights instruments.

The European Court of Human Rights and the Inter-American Court of Human Rights have clarified that the right to a fair trial applies to all types of judicial proceedings, including civil, criminal, and administrative proceedings. In Europe, special proceedings, such as court-martials, may also be subject to the right to a fair trial.

To uphold the right to a fair trial in counter-terrorism efforts, it is crucial for states to develop national counter-terrorism policies, laws, and practices that effectively prosecute and punish those responsible for terrorist acts while guaranteeing the right to a fair trial for all suspects.

The right to non-discrimination and fundamental freedoms

The UDHR, adopted in 1948, serves as the foundational text for international human rights law. It asserts that "all human beings are born free and equal in dignity and rights" and prohibits discrimination based on race, colour, sex, language, religion, political opinion, national or social origin, property, birth, or other status. The UDHR has inspired numerous binding and non-binding instruments at the national and international levels.

Building upon the UDHR, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) elaborate on specific civil, political, economic, social, and cultural rights. The ICCPR, for example, includes the right to liberty and security, equality before the law, freedom of thought and religion, freedom of assembly, and non-discrimination.

In addition to these universal instruments, regional human rights treaties also protect the right to non-discrimination and fundamental freedoms. Examples include the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, the African Charter on Human and Peoples' Rights, and the Arab Charter on Human Rights.

The protection of these rights is particularly relevant in the context of counter-terrorism efforts, as terrorism seeks to undermine the very rights and freedoms that international law strives to uphold. States have a duty to protect their citizens' lives and security while also respecting human rights. This balance can be achieved through proportional and reasonable counter-terrorism measures that comply with human rights law.

Furthermore, individuals, groups, and civil society organisations play a crucial role in promoting and safeguarding human rights. They contribute to public awareness, education, and advocacy, strengthening respect for diversity, peace, and democratic values. However, it is essential to note that the exercise of these rights carries responsibilities and may be subject to limitations to protect the rights and freedoms of others.

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