HUMAN RIGHTS AND TERRORISM
THE WAR OF TERROR AND THE WAR ON TERROR
Implications for good governance and fundamental Human Rights in Commonwealth countries.
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
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).
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
86 | The Parliamentarian | 2015: Issue Two
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
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