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AN ASSESSMENTOF THE IMPACT OF COUNTER TERRORISM ON NON DEROGABLE RIGHTS UNDER INTERNATIONAL LAW

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CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background to the Study

Since the aftermath of the 9/11 attacks in New York and Washingtonin 2001, there has been an increase in both the frequency of terrorist attacks around the world and the counter measures employed by states to combat terrorism. But some of these counter measures employed have violated certain norms of international law especially those norms of International Human Rights Law relating to non derogable rights.

International Human Rights Law provides adequate safeguards and protection against Human Rights violations even in times of public emergency that threatens the life of a nation such as when a state faces the threat of continuous terrorist attacks.

Despite the flexibility built into the International Human Rights Law and the permissible measures which allow states to limit and derogate from certain rights in times of public emergency, some states, notably the united states, have continued to operate outside the framework of the International Human Rights Law with impunity and at times with allusion to different moral and legal arguments to justify their position.

These include the legal arguments for justifying the current practice of targeted killings and drone Strike resorted to by some states to fight terrorism, and the doctrine of the use of force in international law as it relates to cross border attacks directed toward terrorist elements operating within the territories of another state and their implication on Right to Life, the ticking bomb theory and the justification canvassed by its proponents and whether such reasons qualifies as exceptions to the absolute prohibition of the use of torture under International Law and lastly the policy of transferring terror suspects to countries where they face the risk of torture and abuse.

In the light of its findings; this research thus, recommends inter alia for the provision of a more effective and better monitoring structure and also a better regulatory safe guards and protection to ensure proper oversight and control of military operations of state parties and their Secret Service Agencies. It also recommends the promotion of transparency in implementing counter terrorism measures and the empowerment of international courts and quasi-judicial committees like the Human Rights Committee to ensure the proper enforcement of the accountability of states parties with respect to cases of Human Rights abuses. Lastly, it recommends an absolute ban on the use and practice of torture in line with the current standard of international law and the subsisting international human right mechanism

1.2 Statement of the Problem

Since the end of the Second World War and the tensions of the Cold War in the late

1990s, the International Political System has not witnessed a problem more serious than Terrorism.

The problem of terrorism touches on several key aspects of the International Law notably; Human Rights, The Use of Force under International Law, The absolute prohibition against Torture etcetera. This research particularly focuses on some of these problems, such as those especially relating to non derogable rights, the ticking Bomb Hypothesis and the use of force against non state actors operating within the territory of another state. Thus to effectively address the research topic, the following research questions are raised.

  1. Giving the enormity of the scale and savagery of the 9/11 attacks and other serious terrorist attacks which the world have been witnessing since 2001, whether states are justified in acting outside the provisions of The Covenant on Civil and political

Rights, especially Article 4 which provides for adequate safe guards and protection

against Human Rights violations in times of public emergency which threatens the life of a nation.

  1. The International Covenant on Civil and Political Rights has made the prohibition on torture and consequently the Right of Non Refoulement an absolute Right. These twin

Rights are often regarded „erga omnes” which means a owed to the whole world. They are now regarded as peremptory norms of international standards from which no derogations are allowed. However, the emergence of the Ticking Bomb argument which became popular after the 9/11attacks now seeks to justify the selective use of terrorism in so called exceptional circumstances of terrorism. Thus one of the research question considered in this work is whether the fear of an imminent terrorist attack or a credible terrorist plot can serve as a justification for the re introduction of torture as a permissible interrogative technique on certain hardened terrorist suspects.

  1. Article 2 (4) of the United Nations Charter Prohibits the Use of Force against the territorial integrity of other states except in cases set out in Article 39, 42,43 and 51 of the Charter However, since the 9/11 terrorist attacks, the activities of non state actors operating within the territorial bounds of sovereign states have increased both in frequency and lethality. Hence in the light of the increasing threat posed by non states terrorist groups operating within the territory of certain sovereign states most of whom can claim protection from extra territorial attacks under Chapter VII of the UN charter, whether states can rely on the justification of terrorism and the principle of state responsibility to launch punitive military attacks on the territory of states perceived as providing safe haven to terrorist groups or states who have shown lack of capacity to deal with such threat.

1.3 Aim and Objectives of Research

This research will access, and analyze the impact of some counter terrorism measures especially after 9/11 by examining how such measures have impacted on somenon derogable rights guaranteed under international law i.e. Right to life, prohibition of torture and right of non refoulement.

To achieve this aim, the research will;

i. Examine the arguments relied upon by some states, particularly the United States in justifying measures taken to combat terrorism outside the provisions of The International Covenant on Civil and Political Rights when those measure violates non derogable fundamental rights such as The Right to Life and Prohibition against Torture. A particular case of the use of drones against terrorist targets will be examined ii. Examine critically the Ticking Bomb Theory viz a viz the provisions of certain International conventions prohibiting the Use of Torture as an unacceptable interrogative technique with a view to addressing the legality or otherwise of its application in Terrorism cases.

iii. Consider critically the justification for the use of force against terrorists operating within the territory of other states and its implication on the International Principle of

State Responsibility and Violation of Human Rights particularly non derogable rights

1.4 Scope of Research

This research is limited to terrorist events occurring after the 9/11 terrorist attacks. It concentrates mainly on the measures employed particularly by the United States in conducting its War on Terror after the 9/11 terrorist attacks. This research work limits itself to certain provisions of international Conventions and treaties addressing the human rights violations. In discussing human rights violations viz a viz the counter terrorism measures employed by states, it is delimited to analyzing the impact of such measures on non derogable rights.

1.5 Justification

Since the aftermath of the 9/11 attacks in New York America in 2001, there has been an increase in both the frequency of terrorist attacks and the counter measures employed by states to combat terrorism. However, some of these measures have violated certain norms of international law especially those norms of International Human Rights Law relating to non derogable rights.

From Pakistan to Afghanistan to Yemen and Somalia, America‟s drone program and policy of targeted killings of so called terrorists anywhere and everywhere in the World has sparked debates on whether it is justifiable for a state to hide under the vague and insubstantial coinage of War on Terror to violate the territorial sovereignty of other states for the purpose of taking out terrorists. A case in point was the killing of Osama Bin Laden in 2011. To underscore the seriousness of this problem, Between 2004 to 2015 in Pakistan alone, US drone program was estimated to have killed between 2,489 to 3,989 people mostly women and children and innocent people . In Yemen between the same periods, US drone strike killed a total of between 492-725 people including women and children. There have been similarly high figure of casualties reported and documented by the Bureau of Investigative Journalism in both Somalia and Afghanistan .

Terrorism is a global problem which transcends territorial borders. With modern advancement in technology it is now easy for terrorist to plan and carry out attacks and move freely from one country to another. The 9/11 attack thus marked a new phase in the global fight on terror. In the early days of America‟s military operations against the Taliban and AlQaida in Afghanistan in 2001, several fighters were captured on the battlefield of Afghanistan andtransported to a prison facility called Guantamo Bay (GTMO) were they were held under the status of unlawful combatants. Many of the terror suspects were reportedly tortured and subjected to cruel and inhuman treatments, I.e. Water boarding techniques, Sleep deprivation etc. some of the detainees however were later secretly transferred to countries where they face the risk of torture and even summary execution.Majid Khan , a high value al Qaida detainee held in Guantanamo in 2003 and who later became a government cooperating witness said while in detention in GTMO interrogators poured ice water on him naked and repeatedly touched his “private parts”, he also said interrogators, some of whom smelled of alcohol, also threatened to beat him with a hammer, baseball bats, sticks and leather belt.

President Bushes‟ administration encouraged the use of these tactics often referred to as “enhanced interrogation techniques.

What is most worrying is that the perception of the public towards the practice of torture is fast changing towards one of acceptance. In a BBC survey of 27,000 people in 25 countries in October 2007, it was reported that more than one of threepeople in nine countries, including America, considered a degree of torture acceptable if it saves lives . Another poll in 2005 by the Pew Research Centre found that nearly half of Americans thought the torture of suspected terrorists wassometimes justified .

The ticking bomb hypothesis has often been cited as the ultimate justification for torture. Both the International convention on torture and the (CAT) International Covenant on Civil and Political Rights (ICCPR) is absolute in prohibiting the use of torture under any circumstances.

1.6 Methodology

This research will employ a doctrinal methodology of research which include; online resource materials, books, Newspaper articles, Case Laws, Statutes and International Legal Instruments which constitutes both primary and secondary sources.

1.7 Literature Review

A review of the literatures and extant laws on the subject matter of this research is imperative in order to lay the necessary foundation for this study. In the course of this research, several books were reviewed.

This review opens with the seminal work of Heinz and Micheal; the international fight against terrorism and the protection of Human Rights. This work sets the tone for the present research and provides it with the necessary background and compass to achieve the

 

 

 

 

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