by Rajeev Dhavan, The Hindu, Chennai, September 3, 2004
Where counter-terrorism violates human rights, it produces state terrorism directed against a nation’s own people.
Both collectively and individually, nations across the world are obsessed with policies of counter-terrorism. This obsession is subversive of peace and good governance in ways that are beginning to dwarf the terrorism such policies claim to counter. Counter-terrorism acquired a new lease of life after September 11, 2001, when planes crashed into the World Trade Center in New York. `Nine eleven,’ as the incident is called, provided the excuse for evolving devastating policies of counter-terrorism. America unleashed wars on Afghanistan and Iraq for reasons that test the patience of international law. There is no telling what the United States will do next. The United Nations has passed mandatory resolutions for countering terrorism that are binding on the nations of the world which are obliged to implement them. Various countries have enacted counter-terrorist laws that surpass one another in devising means of oppressing their own people. Counter-terrorism is now profiled as a major threat to the peace of the world.
On September 12, 2001, the United Nations General Assembly passed Resolution 1368 to exhort all nations to suppress terrorist acts. Such speed by the U.N. is unprecedented. More significantly, on September 28, 2001, the U.N.. Security Council exercising power under Part VII of the U.N. Charter passed the magnum Resolution 1373 making it binding on all U.N. member-nations to enact counter-terrorism measures within 90 days and remain under the surveillance of a Counter Terrorism Committee (CTC). Resolutions under Part VII of the Charter are not discretionary but must be followed. On January 16, 2002, the U.N. passed Resolution 1390 to demand worldwide steps to freeze terrorism-oriented assets and especially move against `listed organisations’ mentioned in earlier resolutions. On March 18, 2003, the U.N. Office on Drugs and Crime assembled 12 conventions to guide anti-terrorist efforts. The U.N.’s dictates being mandatory and compulsory had to be complied with immediately — within an emergency timetable.
The U.N.’s initiatives resulted in regional and national responses. On October 17, 2001, the European Union produced an anti-terrorist road map to result in a framework decision on June 22, 2002, which along with other measures fundamentally rewrote extradition and other laws, oblivious of civil liberties, to strengthen interaction within the Union. To implement Resolution 1373, the Commonwealth created its own Central Committee on Terrorism (CCT) and pledged to strengthen its existing anti-terrorist legislation. The African Union created a plan of action to implement U.N. resolutions at Algiers on September 14, 2002. The South Asian Association for Regional Cooperation supported U.N. resolutions to create a Regional Convention in January 2002 and an additional protocol in January 2004. America enacted its Patriot Acts and other legislation from 2002 onwards to vest vast powers in the administration against ethnic groups, minorities, migrants, tourists and others in ways that were oppressive. Former Defence Minister George Fernandes vows never to visit America because of the treatment he received.
[] In 2000-02, Britain reworked its anti-terrorist laws in ways unknown to its common law history to bring back internment without trial, arbitrary arrests and deportations. Pakistan added amendments to its anti-terrorist laws in 2002 to detain a person without charge for 12 months — amongst other provisions. Like India’s Prevention of Terrorism Act, it was abused many times over and used against political opponents and for personal vendetta.. Following the blasts in Bali, on October 12, 2002, Indonesia strengthened its legislation to poise itself for unbridled abuse. In Europe, Germany has used its anti-terrorist legislation against `extremist’ religious groups.
At a conference of the International Commission of Jurists (ICJ) on August 28, 2004, a German spokesman virtually spoke in terms of the Huntington thesis asking for a counter-jihad against Muslims who were targeted without remorse. At the meeting, an activist lawyer, Karina Moskalenko, demonstrated through case after case from Russia how people were picked up and they disappeared. We still do not know the full details of the `gas’ used in the rescue operation in the Dubrovka theatre. There is no end to the stories in every country on the gross abuse of anti-terrorist laws. Using 9/11 as an excuse to enact measures of counter-terrorism, every country seems to be fighting America’s war whilst oppressing its own people in a free-for-all without reserve. If this continues, counter-terrorism will become a greater threat to people and good governance, than terrorism is made out to be. America’s war has become the world’s excuse for war, arms, destruction, death, torture and violation of civil liberties.
The obsession with counter-terrorism knows no limits. Shockingly, the famous American lawyer, Alan M. Dershowitz, has written a book, Why Terrorism Works (2002), suggesting that provisions be made in criminal procedures to enable governments to get a court order to inflict torture during investigations.. In other words, counter-terrorist measures can include whatever they want within their remit to be “effective.” India’s troubles in Manipur are about army lawlessness, custodial torture and rape. Although the latest American decision on the Guantanamo Bay detenus now allows for some judicial review, it permits the U.S. army abroad to pick up civilians on suspicion for indefinite interrogation, detention and secret proceedings without the authority of law on the basis of a Resolution of Congress. Where counter-terrorism violates human rights, it produces state terrorism which is directed against a nation’s own people. International norms under Article 4 of the Covenant on Civil and Political Rights and others speak of certain rights being non-derogable including the injunction against torture. But the canopy of non-derogable rights is wider. Even where rights are not non-derogable, it does not mean the state can violate them. Any permissible derogation must be reasonable and proportionate in its use. The U.N.’s Human Rights Committee has taken great exception to the vast derogations in the name of counter-terrorism. Its strictures have been ignored by many countries. Its decisions have been flaunted. Countries have used international law to usurp anti-terrorist powers to subvert its human rights prescriptions. Before `9/11′, the Human Rights Committee’s General Comment No.29 of July 24, 2001, laid down stringent guidelines to ensure that all derogations are “strictly required by the exigencies of the situation … based on objective assessment.”
The truth of the matter is that counter-terrorism does not admit to oversight assessment or monitoring. In 2003-04, India set up a low resourced review committee with ineffectual results. The MDMK leader, Vaiko, may have been released, but the release was due to public pressure. Internationally, while the U.N. resolutions must be implemented there is no monitoring mechanism. The U.N.’s Counter Terrorism Committee promotes counter-terrorism but does not engage issues of human rights violations. Dr. Seiderman in a paper for the ICJ suggests the need for an international monitoring mechanism in the form of Special Rapporteur or Sub Committee of the Human Rights Committee or a Special Committee answerable to the Security Council. Such mechanisms are useful.
Since Security Council Resolutions mandate counter-terrorism measures, the Council must effectively monitor its abuse. However, in January 2003, the U.N.’s CTC declared that monitoring human rights violations was not within its remit. It is imperative that counter-terrorism is placed under comprehensive scrutiny, nationally and internationally.
The Congress-led United Progressive Alliance Government has decided to repeal POTA and weave anti-terrorist measures in its ordinary law. This has led to a protest from Narendra Modi, Chief Minister of Gujarat, who is seeking support from other Chief Ministers. It is well known that the greatest abuse of the erstwhile Terrorist and Disruptive Activities (Prevention) Act came from Gujarat and POTA has been misused in Tamil Nadu and elsewhere.
At the ICJ conference in Berlin in August 2004, it was refreshing to hear Germany’s Minister of Justice say that his country planned to contain its counter-terrorism within the ordinary law and procedure. This is precisely what India should do. India’s Criminal Procedure Code already has onerous provisions on pre-trial detention and bail as well as strong legislation on unlawful associations. India would be in good company and set an example to place its anti-terrorism measures within a normal legal framework. States in India should be denied the dangerous power to terrorise their own people in the name of anti-terrorism.
India can neither portray nor echo support for American chauvinism. Nor can it use the U.S.’ excuses oppressively to target Indians or others. We cannot live in a contrived and open-ended global emergency that threatens both global peace and democratic governance. Counter-terrorism is proving to be as disastrous as the menace it claims to stop.
Source: The Hindu