HUMAN RIGHTS AND TERRORISM
excessive steps which would violate fundamental freedoms and undermine legitimate dissent. In pursuing the objective of eradicating terrorism, it is essential that states strictly adhere to their international obligations to uphold human rights and fundamental freedoms .”3 The former UN Secretary General Kofi Annan had this to say on the proper approach to counter terrorism:
“Human rights law makes provision for counter terrorism action, even in the most exceptional circumstances, but compromising human rights cannot serve the struggle against terrorism. On the contrary, it facilitates the achievement of the terrorist’s objective by ceding the moral high ground, and provoking tension, hatred and mistrust of government among precisely those parts of the population where he is most likely to find recruits.”4
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In Hamdi v. Rumsfeld, the US Supreme Court Justice Sandra Day O’Connor observed that: “It is during our most challenging and uncertain moments that our nations commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”5 There is yet another conceptual challenge of an acceptable definition of the phenomenon of terrorism. This arises from the notion that there can be legitimate resort to the use of violence in certain circumstances. Replete in our history from George Washington to Nelson Mandela through liberation struggles for self- determination are significant texts on justifications for resort to violence.
The first ill-fated attempt in an international instrument at a definition of terrorism was in 1937 in the Geneva Convention for the Prevention of Punishment
of Genocide which defined it as: “[all] criminal acts directed against a state and intended or calculated to create a state of terror in the minds of particular persons or group of persons or the general public.”
The definition was said to lack precision and did not get the necessary number of ratifications. Yet a definition of terrorism is key for an instrumental global approach to combat terrorism. However the current UN draft Comprehensive Convention on Terrorism in article 2 provides a global template for global and regional engagement:
Any person commits an offence within the meaning of this convention if that person unlawfully or intentionally causes:
(a) Death or serious bodily injury to any person, or
(b) Serious damage to public or private property, including a place of public use, a state or government facility, public transportation system, infrastructure, or environment; or (c) Damage to property, places, facilities, or systems referred to in paragraph 1 (b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature and context, is to intimidate a population, or to compel a government or international organization to do or abstain from doing an act.6
The above definition has introduced its own controversies even on very basic issues, mainly focusing on whether the convention will apply to state armed forces and movements involved in struggles for self- determination. In addition,
the Islamic Conference have proposed that activities of the parties during armed conflicts including situations of foreign occupation be excluded from the ambit of the convention. As observed by Thalif Deen: “The very sticking points the draft treaty revolve around several controversial yet basic issues, including the definition of ‘terrorism’. For example what distinguishes a ‘terrorist’s organization’ from a ‘liberation movement’? And do you exclude activities of national armed forces even if they are perceived to commit acts of ‘terrorism’. If not how much of that constitutes ‘state terrorism.”7
Terrorism and Human Rights The nexus between counter- terrorism measures and human rights is at a number of scalar levels, which range from
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