AN ASSESSMENT OF 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

1.2Statement 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.