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Meeting National Security Requirements and Abiding Principles of Human Rights

Human rights include inherent rights of all people regardless of race, gender, nationality, ethnicity, language, religion or any other status. Human rights include the right to life and freedom, the freedom from slavery and torture, freedom of expression and opinion, the right to work and education and much more. Everyone is entitled to these rights without any discrimination.

The International Human Rights law laid down the obligations of governments to act or refrain from certain actions in order to promote and protect the human rights and fundamental freedoms of individuals or groups. The development of international human rights has been one of the most significant achievements in international relations since 1945.

The scope of international human rights principles is extensive, with human rights standards and commitments at the heart of national, regional and international counter-terrorism measures. However, there is a recurrent tension between meeting national security requirements and respecting/abiding the principles of human rights. It is particularly pertinent to respect and comply with the principles of human rights related to the fight against counter-terrorism because a common goal of terrorist activity is to undermine these rights and fundamental freedoms. Given the significant negative impact of terrorism on human rights, counter-terrorism measures that ignore or harm human rights are self-destructive and unacceptable in a society are guided by the rule of law and democratic values.

Human Rights in International Laws

Human rights are universal values and legal guarantees that protect individuals and groups from acts and omissions, which are mainly caused by government measures and affect fundamental freedoms, rights and human dignity. As such, they are universal, interdependent and indivisible.

The starting point for the most important legal instruments is the Universal Declaration of Human Rights (UDHR) 1948. The text was adopted as a "common standard of achievements for all peoples and nations", setting common goals for states to work toward realizing. The UDHR is remarkable for several reasons. Most pertinent being is that it is the first human rights instrument of universal relevance, despite some ongoing debates about its cultural relativity. Although there were only 48 member states of the United Nations at the time the UDHR was approved by the General Assembly, 171 states at the World Conference on Human Rights in Vienna in 1993 reaffirmed the universality, indivisibility and interdependence of human rights and reaffirmed their commitment to the UDHR.

The overarching principles of the UDHR include: "All people are born free and equal in dignity and rights" (Article 1); and basic principles of equality and non-discrimination on grounds such as "race, color, gender, language, religion, political or other opinion, national or social origin, property, birth or other status" (Article 2). Articles 4 to 21, which list civil and political rights (e.g. the right to life, freedom and security of persons, the prohibition of torture), are of particular importance for the fight against terrorism. Articles 22-27 then focus on economic, social and cultural rights.

Some argue that the UDHR itself has achieved international customary status. While it is certainly the case that a number of its individual provisions have such a status, e.g. the prohibition of torture, it is questionable whether the entire instrument entered into international customary law despite the later state practice.

International Human Rights Instruments

Within the United Nations' human rights system, there are nine key international human rights instruments, some of which have optional protocols that are designed to inform the law, policies and practices of counter-terrorism and to allow individual complaints to be made by States Parties about their human rights violations contractual obligations. Some of these treaties are particularly important in the fight against terrorism, which are-

  1. International Convention on the Elimination of All Forms of Racial Discrimination (adopted on 21 December 1965, entered into force 4 January 1969)
  2. International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force 23 March 1976)
  3. International Covenant on Economic, Social and Cultural Rights (adopted on 16 December 1966, entered into force 3 January 1976)
  4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 10 December 1984, entered into force 26 June 1987)
  5. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 18 December 2002, entered into force 22 June 2006)
  6. Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990)
  7. International Convention for the Protection of All Persons from Enforced Disappearance (adopted on 20 December 2006, entered into force 23 December 2006)

To meet these commitments, states need to develop national counter-terrorism strategies, laws, and practices that aim to prevent terrorism and to prosecute and punish those responsible for terrorist acts in a manner that is consistent with the promotion and respect of human rights stands. These activities must also include measures to prevent the spread of terrorism, including measures to strengthen human rights, prevent ethnic, national or religious discrimination, political exclusion and socio-economic marginalization, and measures to combat impunity for human rights violations.

In terms of its approach, the International Covenant on Civil and Political Rights (ICCPR), both in terms of its articulated human rights principles and its monitoring mechanisms, is the starting point for counter-terrorism measures and related allegations of breach of contractual obligations. Its core principles include:

  1. The right to life
  2. The prohibition against torture, cruel, inhuman and degrading treatment or punishment
  3. The right to liberty and freedom of movement
  4. The right to equality before the law
  5. The right to presumption of innocence until proven guilty
  6. The right to be recognized as a person before the law
  7. The right to privacy and protection of that privacy by law
  8. The right to legal recourse when rights are violated
  9. Freedom of thought, conscience and religion or belief
  10. Freedom of opinion and expression
  11. Freedom of assembly and association
  12. Non-discrimination on any basis, such as race, sex, color, national origin or language.

International Humanitarian Laws

IHL is based on the Geneva and Hague Conventions, Additional Protocols and a series of treaties governing means and methods of waging war such as those banning blinding laser weapons, landmines and chemical and biological weapons, as well as customary law .Counter-terrorism measures are often used in connection with widespread armed violence. In such situations, questions of compliance with international law, which regulates specifically armed conflicts, international humanitarian law (IHL), may arise. In general, IHL becomes applicable when violence involving armed parties has reached to intensity, which is sufficient to represent an "armed conflict" of an international or non-international nature. IHL is one of the most important legal systems that make up the international legal framework for counter-terrorism measures. This is reflected in the United Nations' CT strategy and focuses in particular on the associated sources.

There are approximately 100 wartime human suffering treaties that form the law known as the IHL. These include the Hague Conventions of 1899 and 1907 as well as subject-specific contracts such as the 1997 convention prohibiting the use, storage, production and transfer of anti-personnel mines and their destruction. The most relevant are the four Geneva Conventions of 1949 and their two additional protocols from 1977 -

  1. Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950).
  2. Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950).
  3. Convention relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950).
  4. Convention relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950).

Comments on these contractual instruments as instruments for their interpretation and application are currently being updated by the International Committee of the Red Cross (ICRC), the main guardian of these contractual instruments, to reflect interpretations and problems of the 21st century. This includes developments in law and practice since the Geneva Conventions were passed in 1949 when some of the current war-related problems did not exist. It is hoped that this will help ensure that the conventions are applied more effectively to modern armed conflict situations.

The usual IHL is also important as a legal source. During a comprehensive ten-year ICRC study, the IHL rules of which had achieved the usual IHL status, 161 results were determined in the 2005 results. This source of law is particularly important in relation to countries that are not parties to all six core IHL treaties, as they remain bound by parallel commitments that exist under the usual IHL. Most of these treaty provisions are generally considered common by states. This legal source is particularly important in situations of internal armed conflict - which are currently the predominant form of armed conflict and a common context in which military counter-terrorism operations take place - for which the contractual framework is less well developed and more detailed than from international armed conflict. International law also has a number of advantages over contract law, as it is constantly evolving in parallel with state practice and opinion juris. It can adapt to new challenges and legal developments more easily and quickly than contract law, as it does not require a lengthy negotiation process to agree on changes.

Conclusion on International Humanitarian Law

International humanitarian law and International Human Rights law are two distinct but complementary bodies of law. They are both concerned with protection of life, health, dignity of individuals. IHL applies in armed conflict while human rights law applies at all times, in peace and in war. In situation of armed conflict, human rights law compliments and reinforces the protection afforded by International Humanitarian Law.

Reference List for International Humanitarian Law

The relationship between international humanitarian law and human rights law: A brief history of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions <https://www.icrc.org/en/doc/resources/documents/article/other/57jpg2.htm>

Christian Tomuschat, ‘Human Rights and Humanitarian International Law’ (2010) 1 (2) European Journal of International Law, Volume 21, Issue 1

<https://academic.oup.com/ejil/article/21/1/15/363302>

Amanda Alexander, ‘A short history of International Humanitarian Law’ (2015) 31 (3) European Journal of International Law, Volume 21, Issue 1 <https://academic.oup.com/ejil/article/26/1/109/497489>

The interaction between human rights and humanitarian law: Fragmentation, Conflict, Parallelism, or Convergence? <http://www.ejil.org/pdfs/19/1/178.pdf>

International Legal Protection of Human Rights in Armed Conflicts <https://www.ohchr.org/documents/publications/hr_in_armed_conflict.pdf>

Human Rights and Armed Conflicts <http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-in-relation-to-other-topics/human-rights-and-armed-conflict>

Cordula Droege, ‘Elective Affinities? Human Rights and Humanitarian Law’ (2008) 1 (8) International Review of the Red Cross Volume 90 Number 871 <http://www.corteidh.or.cr/tablas/R22400.pdf>

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