Human Rights and Counter-Terrorism

DHILLON, Sital and MAMA-RUDD, Adam <[Link]

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DHILLON, Sital and MAMA-RUDD, Adam (2016). Human Rights and Counter-
Terrorism. Research Process, International Journal of Social Research Foundation, 4
(2), 1-13.

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 1

Research Process
4(2) July –december 2016, pp. 01-13
© social Research Foundation

human Rights and counter-terrorism

sital dhillon
Director and Head
Helena Kennedy Centre for International Justice,
Department of Law & Criminology
Sheffield Hallam University, Sheffield, England
email: [Link]@[Link]
adam Mama-Rudd
Research Assistant
Helena Kennedy Centre for International Justice,
Department of Law & Criminology
Sheffield Hallam University, Sheffield, England
email: [Link]-rudd@[Link]
The aim of this paper is to provide an overview of the relationship between
counter-terrorism and protecting human rights. These observations are based on the
lead author's experiences of working in numerous countries as a human rights specialist
and former British Diplomat. These countries included Brazil, India, Sri Lanka,
Bangladesh, Pakistan, Sri Lanka, Nepal, various parts of Africa and the Far East. The
paper includes a discussion around defining human rights and terrorism, the challenges
and implications that terrorism poses to the state as well as highlighting key legislation
to outline the crucial balance between rights and counter-terrorism powers.
[Key Words: Human rights, Terrorism, United States, United Nations, Victims of
Terrorism]

human rights and war rarely mix well. The events of 9/11 heralded the
George Bush inspired 'War on Terror' which for all intendant purposes was a
war on Al Qaida and consequently fundamentalist Islam (Holloway 2008).
Consequently, the United States and its allies across the globe enacted directly,
or covertly, a tranche of measures designed to counter both actual and perceived
terrorist threats at home and abroad. This has meant that legislation was
preventative in nature, presenting major challenges to the fundamental
principles of human rights enshrined in national, regional and international law.
As a result of such legislation, civil liberties have been restricted in
numerous countries. It was a 'knee-jerk' reaction for many countries that quickly
passed Prevention of Terrorism Acts (POTA) after 9/11; with the language of
terror often used to justify violating the rights of political opponents and
marginalised groups. The problems have been exacerbated by Western states,
particularly the United States, for repression by regimes that were designated as
2 Sital Dhillon and Adam Mama-Rudd

'partners' in the war on terrorism. These included Pakistan, Syria, Libya, Iraq
and Sri Lanka, many of which are now provide striking examples of the
collapse of the Rule of Law and wholesale abuses of fundamental human rights.
Yet, all of this followed an era of optimism which was full of promise
towards the end of the [Link] Cold War ended; there were various
enactments of protective human rights legislation at national and international
levels in many countries, exemplified by the judicial activism in India, resulting
in a series of landmark judgements. The international community also displayed
significant outrage towards the atrocities that took place in Rwanda, the former
Yugoslavia and East Timor. All of these events led some commentators to
wonder whether the beginning of the new Millennium heralded a new age of
enlightenment in the field of human rights.
However, 9/11 and what followed, changed everything for the worse.
The thaw in East-West relations was not yet complete when a new threat of
isolationism and bipolarisation emerged from the shadows of the disintegrating
twin towers of the World Trade Centre in New York City. Whether it be in the
offices of Charlie Hebdo in France, a five star hotel in Mumbai; on the streets
of London, Baghdad or Boston; the massacre of innocent school children in
Pakistan, or through the horrors that are unfolding in front of our eyes in the
middle east- terrorist activity around the world continues to violate a range of
human rights.
defining human Rights
Such terrorist atrocities have provided serious challenges to the
fundamental principles set out under the provisions of the Universal Declaration
of Human Rights (UDHR) and its associated covenants. As stated in Article 55
of the United Nations Charter (1945), human rights are universal values and
legal guarantees that protect individuals and groups against actions and
omissions primarily by state agents that interfere with fundamental freedoms,
entitlements and human dignity. The full spectrum of human rights involves
respect for and protection and fulfilment of civil, cultural, economic, political
and social rights. Human rights are universal - in other words, they belong
inherently to all human beings and are interdependent and indivisible.
Hence, the multiple violations referred to earlier have presented major
challenges to those seeking to uphold the core principles set out in the UDHR
and its associated covenants, including those seeking to protect:
a) The right to life. b) Challenges to the absolute prohibition against torture.
c) Transfer of individuals suspected of terrorist activity. d) Liberty and security
of the person. e) Profiling and the principle of non-discrimination. f) Due
process and the right to a fair trial. g) The principle of legality and the definition
of terrorism. h) Freedom of expression and the prohibition of incitement to
terrorism. i) Freedom of association. j) Surveillance, data protection and
privacy. k) Economic, social and cultural rights.
Human Rights and Counter-Terrorism 3

defining terrorism
Despite the United Nations (UN) and other national and international
legal instruments being created prior to and after the events of 9/11, there is still
no universally accepted definition of terrorism under international law. There is
a loose agreement that terrorism consists of the threat or use of violence against
innocent people for the advancement of political agendas, but this is very vague.
The absence of a clear definition of terrorism therefore leaves it open to the
interpretation of those who would seek to broaden the definition so as to
perpetrate its misuse and unduly wide application. This is commonly used to
oppress those who merely dissent from the social and political norms of society
rather than protect the vulnerable from legitimate threats. Hence, the practice of
limiting human rights in times when it is most imperative to preserve them,
must urgently be re-examined.
It is ironic that many of the acts committed by terrorists; and also by
States in countering real or manufactured terrorist threats would be considered
terrorist acts if they were committed in times of war or international conflict. In
such circumstances the provisions of International humanitarian law
encompassed within the four Geneva Conventions and their additional Protocols
are specifically aimed at reducing human suffering in times of armed conflict.
There is well-documented recourse under international law available to
those seeking to prosecute those culpable for violence against civilians, but
again these principles are inextricably linked to abuses committed in conditions
of war and armed conflict often between states rather than for the individual.
International humanitarian law does provide specific protections in prohibiting
'measures of terrorism' and 'acts of terrorism', but without an agreed definition
of what constitutes as terrorism, individuals and groups are often left to seek
redress within the domestic systems of the very state or non-state actors that
may be perpetrating the human rights abuses in the first place.
Without a universal definition of terrorism in times of peace and outside
of conditions of war or armed conflict, states are free to create broad,
overreaching definitions and unintentionally criminalise activity that,
pragmatically, does not warrant being labelled as 'terrorism'. In contrast, states
may also intentionally create a broad definition and use this power to suppress
the political opposition or unpopular groups under the guise of combating their
self-branded terrorism. For example, in Uganda elected politicians have equated
'terrorism' with homosexuality, a protected characteristic under the UDHR.
It is sometimes argued that those that seek to protect and promote
human rights are 'soft' on terrorism, in the same breath it is claimed that the
suppression of human rights is a necessary step in protecting fundamental
freedoms and national security. The irony in this position is not always
immediately apparent to those that argue this position. To be clear, an act of
terror is an act on fundamental human rights.
4 Sital Dhillon and Adam Mama-Rudd

the impact of terrorism on human Rights

Let's be clear: terrorism aims to destroy human rights through violence
and spreading fear in civilian populations. This is often committed by non-state
actors, attacking democracy, the rule of law, and respect for humanity. Hence,
counter-terrorism measures are crucial but may also threaten human rights.
State counter-terrorist measures implicate numerous fundamental human rights,
including the right to life through targeted killings, the prohibition against
torture, liberty interests through arbitrary detention, racial and ethnic profiling
and the right to due process. Other rights that may be comprised in the pursuit
of counter-terrorism include freedom of speech and association, the right to
privacy, and many other social, economic, and cultural rights.
Looking to the past, one can cite that the evil that engulfed Nazi
Germany in the 1930s and 40s led to the outbreak of the Second World War;
and in turn also led to the creation of a universal set of standards seeking to
protect fundamental human rights enshrined in the UDHR. Similarly, another
event, some 64 years later, the terror of the 9/11 attack where 3,000 people lost
their lives, another war has emerged - the 'war on terror'. As George W. Bush
announced, 'you are either with us or against us' and the world entered a dark
era beginning with the invasions of Iraq & Afghanistan (BBC News 2001). It
can be argued that this has resulted in the on-going killing and maiming of
innocent civilians by terrorist cells, the torture of Iraqis in Abu Ghraib and
widespread international unrest between the East and the West, all metaphors
for the systematic invasion of and erosion of fundamental human rights and
civil liberties across the globe. Hence, the unimaginable became reality in
which the very measures designed to protect human rights from terrorism, fell
by the wayside as the 'war on terror' begun. The mechanics of counter-terrorism
have instead had a profound impact in limiting fundamental human rights and
freedoms and has indiscriminately targeted the innocent.
Balancing human Rights and counter-terrorism
If terrorism constitutes a fundamental threat to the enjoyment of human
rights, states are bound by a duty to protect their citizens and to introduce
effective counter-terrorism measures. In doing so, there is an international need
to ensure that such measures comply with international human rights standards.
This also requires a degree of flexibility which is provided for within the
provisions of international human rights law.
States therefore must ensure that measures taken to counter terrorist
activity must in themselves be compliant with international human rights
standards. Indeed, the protection of fundamental human rights and the
promotion of democratic thought and practice are inextricably linked. If in
seeking to protect the former we erode the latter, we blur that essential division
between the legitimate and the illegitimate. So here we have a paradox: states,
which fail to comply with international law and human rights norms in dealing
with terrorist subjects may, by their own actions, result in an increase in
terrorism within their jurisdiction.
Human Rights and Counter-Terrorism 5

Hence, states are faced with an unenviable challenge in their efforts to

prevent terrorist acts often committed by non-state actors operating in small
groups amongst detached networks with the capacity to commit massive
atrocities with minimal resources. These elusive factors amplify the risk posed
to the state and members of the public by masking efforts to identify individuals
that are associated with terrorism. The implications to detect potential terrorist
threats, and prevent terrorism from occurring are in turn, intensified for the
state. The atrocities committed are further amplified through the power of the
internet and social media, bringing events immediately into the living rooms of
the general public and fuelled by a new culture of 24/7 media reporting. All of
this results in enormous pressure being placed on states to not only act, but to
show that they have the capacity to act swiftly and with deadly force.
In such times, cool heads and detached reason unfortunately rarely
triumph. States often fail to strike the balance between human rights and
security in the context of countering terrorism, which then risks impeding the
very rights they purport to protect. In the words of Thomas Paine 'he that would
make his liberty secure must guard his enemy from oppression for if he violates
this duty, he establishes a precedent that will reach to himself' (Paine and
Conway 2010).
Terrorism is a very real and present threat, but it does not negate the
state's domestic, regional and international obligations to respect, protect and
preserve fundamental rights and freedoms. Counter-terrorism efforts must apply
the narrowest margin of appreciation possible without compromising efficacy
and respecting limitations regarding the scope of the exceptions to such
protection.
Just as terrorism impacts on human rights and the functioning of
society, so too can measures taken by states to counter terrorism. States have
not only a right, but a duty to take effective counter-terrorism measures. Such
measures and the protection of human rights are complementary and mutually
reinforcing objectives which must be pursued together as part of a state's duty to
protect individuals within their jurisdiction.
Nevertheless, since 9/11, the atrocities in Mumbai 2011; Madrid 2004;
London 7/7; Bali 2005; Boston 2013 and most recently Peshawar, Paris,
Brussels and Copenhagen, acts of terrorism have succeeded in metamorphosing
the global security environment. States have been forced to redefine the nature
of terrorism and to reassess the political, military and legal means necessary to
protect the state, its institutions and its citizens.
Country after country has reacted to these appalling events by enacting
legislation typically encased within Prevention of Terrorism Acts and special
measures, which includes arbitrary detention and extra judicial killing. This
pattern is repeated across the globe with the result that fundamental human
rights have been infringed upon in the desire to counter terrorism. These laws
have created new criminal offences of detention and questioning powers for the
police and security agencies; as well as new powers to ban 'terrorist
6 Sital Dhillon and Adam Mama-Rudd

organizations' and new ways to control both people’s movement and activities
without criminal convictions.
the Mechanics of counter-terrorism
So what can states do and what can they avoid doing in addressing the
most serious threat to stability in the international arena since the Second World
War? The answer is quite a lot!
In fact, international human rights law allows for significant provisions
to counter the terrorist threat. Each action also comes with appropriate checks
and balances provided for within national and international human rights
provisions.
• The restriction of key human rights proscribed in law in the pursuit of a
legitimate purpose
• States can take 'necessary and proportionate action' in a democratic society
• Impose permissible limitations on citizens human rights
derogable and Non-derogable Rights
Indeed, there are circumstances where some human rights can be
legitimately restricted. International human rights law recognizes that other
‘derogable’ rights can be limited in two circumstances:
1. Derogable human rights can be limited in a state of ‘public
emergency’. The threat of terrorism may constitute a public emergency in some
circumstances. For example, in 2004, the House of Lords accepted that the
threat of terrorism may constitute a ‘public emergency’ (House of Lords 2004a).
However, the Court also held that ‘measures taken by a member state in
derogation of its obligations under the Convention (European Convention on
Human Rights) should not go beyond what is strictly required by the exigencies
of the situation' (HOL 2004b). Therefore, although the House of Lords agreed
that there was a ‘public emergency’, they found this state of emergency did not
justify discriminatory counter-terrorism measures under which foreign
nationals, but not British nationals, could be detained without trial.
2. Derogable human rights can be limited if the limitation is a
proportionate and necessary response to a threat to national security. For
example, article 19 of the International Covenant on Civil and Political Rights
(ICCPR) protects the right to freedom of expression (United Nations General
Assembly 1996). International human rights law says that any law that limits a
derogable human right must be proportionate and necessary to achieve its
purpose (e.g. preventing a terrorist act). The UN Human Rights Committee has
directly stated that proportionality is a fundamental test that must be met for any
form of restriction on human rights under the ICCPR UN Human Rights
Committee, General Comment number 29, States of Emergency (Article 4).
In other words, counter-terrorism laws need to have ‘sufficient
safeguards to stand the test of proportionality and fairness' (Security Legislation
Review Committee 2006). Article 19(3) of the ICCPR (UNGA 1996) enables
this right to be restricted if the restrictions are necessary and proportionate to
Human Rights and Counter-Terrorism 7

protect national security in a democratic society. If laws which limit freedom of

expression are too broad or too vague, it will be difficult to characterize the
laws as necessary and proportionate to the purpose of protecting national
security. But if laws are carefully targeted at expression which is 'directly
causally responsible for increasing the actual likelihood of a terrorist act
occurring' (UN Special Rapporteur 2005), then they are more likely to pass the
proportionality test.
Factors to consider when assessing whether an action is proportionate are:
• Why is the action necessary?
• To what extent does the action impair the right?
• Could the purpose of the action be achieved through less restrictive measures?
• Do legal safeguards against abuse exist?
The proportionality test does not apply to non-derogable rights which
cannot be limited in any circumstances. For example, the right to be free from
torture cannot be breached in any circumstances. Non-derogable human rights
must always be protected and counter-terrorism laws must comply with our
international human rights obligations. It is vital that we resist the enactment of
counter-terrorism laws without adequate scrutiny of their human rights
implications. Therefore, making sure counter-terrorism measures comply with a
country's human rights obligations involves correctly identifying which human
rights are non-negotiable and which human rights can legitimately be restricted
in certain circumstances. International law allows for certain derogable rights to
be restricted, but only if the restrictive measure is a necessary and proportionate
way of achieving a legitimate purpose. Equally, Article 4(2) of the ICCPR
(UNGA 1996) provides that the following non-derogable rights cannot be
breached in any circumstances:
• The right to life (Article 6)
• Freedom of thought, conscience and religion (Article 18)
• Freedom from torture or cruel, inhuman or degrading punishment or treatment
(Article 7)
• The right to recognition everywhere as a person before the law (Article 16)
• The principles of precision and non-retroactivity of criminal law (Article 15)
Elements of the right to a fair trial (Article 14), as explained, can
derogate from human rights provisions in a state of emergency. However, there
have to be truly exceptional circumstances at play with a genuine and present
threat to the life of the nation; otherwise states must apply effective delegated
legislation in the normal manner. If a state decides to derogate, they are obliged
to inform other states through the UN and must demonstrate that there have
been the appropriate provisions included for the regular review of such
derogations by independent organs. This ensures compliance with international
human rights standard as proscribed by international law. States must also
present accused persons before a court of law at the earliest possible
opportunity. Judicial remedies include writs of Habeas Corpus and Amparo
8 Sital Dhillon and Adam Mama-Rudd

with only a court of law allowed trying and convicting a person of a criminal
offence. Finally Art 4(1) of the ICCPR prohibits any derogation solely on
grounds of race, colour, sex, language, religion or social origin.
specific challenges in the context of terrorism and counter-terrorism
The actions of states in seeking to combat both actual and perceived
terrorist threats since 9/11 have presented the international human rights system
with its strongest challenge since the 1930s. These include challenges to:
• The right to life. Through the practice of 'shoot to kill' legislation, extra
judicial killings and arbitrary executions have multiplied. This is especially
pertinent when considering that human rights legislation already permits
states to use deadly force when applying it strictly to protect human life.
• The absolute prohibition against torture, cruel and inhuman treatment. The
use of discriminatory and stigmatizing measures affects the rights of entire
communities, and may lead to further marginalisation and possibly
radicalisation within those communities. Many of the conditions conducive to
the spread of terrorism result from discrimination and disenfranchisement and
the appropriate use of counter-terrorist measures should never result in such
conditions. Transparency and judicial oversight of state counter-terrorist
measures must be promoted to ensure state compliance with international
human rights.
• The transfer of persons suspected of terrorist activity between or within states,
also infamously known as extraordinary rendition, or irregular rendition.
• The liberty and security of the person. Any deprivation of liberty should be
based on the grounds and procedures established by law, with detainees being
promptly informed of the reasons for their detention and notified of the
charges against them. Since 9/11 several states have extradited, expelled,
deported or otherwise transferred foreign nationals, some of them refugees
and asylum seekers, suspected of terrorism to their country of origin or to
other countries, where they allegedly face torture or ill treatment in violation
of the core principals of the ICCPR. This is despite it being well-established
in international law that such practices are prohibited to protect the victim
specifically from being subject to torture, arbitrary treatment and cases of
deprivation of life. Some states, including the UK, have made use of
diplomatic assurances and other forms of agreements to justify such rendition
to countries where the accused faces the real threat of torture or some other
serious human rights abuse. However, the UN High Commissioner for Human
Rights has emphasised that such measures do not work and do not provide
adequate protection. In any case, states are already bound by the provisions in
international and regional treaties so these additional bilateral steps should not
be necessary.
• Ratification and implementation of existing agreements. Despite the
absence of a universally accepted definition of terrorism, domestic and
international law provisions provide an extensive legal basis for the
Human Rights and Counter-Terrorism 9

prosecution of crimes of a terrorist nature. The UN framework for

protecting human rights and the direct application of regional mechanisms
supported by enhanced international cooperation between states in
criminal matters can be extremely effective in countering terrorist threats.
Indeed regional cooperation can play an essential role in punishing and/or
preventing terrorist acts.
• Profiling and the principle of non-discrimination.
• Due process and the right to a fair trial.
• The principle of legality and the definition of 'terrorism'. The process of
defining a terrorist act is in of itself a challenge. For example, the Australian
Government definition refers to 'an organization that is directly or indirectly
engaged in preparing, planning, assisting in or fostering the doing of a
terrorist act (whether or not the terrorist act occurs)’ (McCormack 2010).
• The right to an effective remedy for a breach of human rights (UNGA 1996).
• Freedom of expression.
• Freedom of association.
• Surveillance data protection and the right to privacy.
• Economic, social and cultural rights.
What else have states done in the name of countering terrorism?
States have criminalised relationships with terrorist organisations so
that once an organisation is listed as a terrorist organisation; a person who has
certain relationships with that 'terrorist organisation' may face criminal charges
and/or detention. Several countries have also introduced new sedition offences,
replacing the old sedition offences that may have existed within their body of
legislation, and are replacing them with far reaching sedition offences that stifle
public debate and restrict freedom of expression.
Control Orders and Terrorism Prevention and Investigation Measures
(TPIMs) have become regularly common. A control order can allow a variety of
obligations, prohibitions and restrictions to be imposed on a person for the
purpose of protecting the public from a terrorist act. For example, a control
order can require a person to stay in a certain place at certain times, prevent a
person from going to certain places or talking to certain people, or wear a
tracking device. These restrictions can impact on fundamental rights and
freedoms including the right to liberty, privacy, freedom of expression and
freedom of movement.
Finally, cutting off the funds that finance terrorist activity is a
critical and legitimate tool in countering terrorist activity. Existing
provisions under the provisions of UN Security Council Resolutions 1267
and 1373; along with the Convention on the Suppression of the Financing of
Terrorism (UNGA 1999) provide important tools in the fight against
terrorist financing. However, the global adoption of such measures remains
inconsistent, with many states still to ratify regional money laundering and
forfeiture of assets provisions.
10 Sital Dhillon and Adam Mama-Rudd

counter-terrorism and the state

The use of force against terrorists is a primary issue of concern for the
state. Terrorism should primarily be dealt with at the level of national and
international criminal justice systems. Force should also only be used as a last
resort. The framework laid down in the UN Charter is the cornerstone of the
international legal regime on the use of force and states remain deeply
committed to it. States are encouraged to express their views promptly and
openly on the legality (or lack thereof) of any instance where force is used. This
has the effect of consolidating international consensus.
The transnational character of modern terrorism also means that
intelligence and law enforcement agencies of the state must increasingly share
information with their foreign counterparts. This cooperation often involves
working with states that have few domestic human rights safeguards, or worse
still, with foreign intelligence agencies that have long histories of involvement
in systematic human rights violations. States should ensure that national
intelligence services have clear guidance and independent monitoring systems
that do not hinder the free flow of timely intelligence between nations.
Information should be declassified and disseminated as rapidly as possible when
needed to, so as to disrupt terrorist operations. In addition, the roles and
responsibilities of intelligence officials and law enforcement authorities should
be clearly defined. These are processes that can and should be replicated across
domestic jurisdictions that provide workable methods for protecting sources and
practices, while still complying with the human rights of defendants facing trial
for specific acts.
Rights of Victims of terrorism
States must also protect the security of individuals under its jurisdiction.
This includes the rights of victims of terrorism. States can help victims by
appropriately condemning the suffering that has resulted by acts of terrorism.
Importantly, they must also support the victims and their families, expressing
profound unity and cohesion with them, and providing them with practical
assistance in the form of appropriate emergency aid.
concluding comments and the Future of counter-terrorism
The fundamental human rights protections described in this article are
not an optional luxury to be granted after consideration to those alleged, or even
proven to have engaged in terrorist attacks. They are a necessity without which
we risk eroding the very freedoms and civil liberties that underpin democracy
itself. In other words, we blur the line between liberty and security at our own
peril and must be acutely aware of the consequences of such decisions. Respect
for human rights and the rule of law cannot be 'traded' off against counter-
terrorism. Human security itself is the foremost human right, the 'right to life',
and is the central component of the carefully assembled and independent
package of civil and political rights contained within the UNDHR. The major
'trade off' is not occurring between the derogation of this or that right; it is
between the rights of the majority of the population and those of minorities.
Human Rights and Counter-Terrorism 11

By failing to respect human rights in times of terrorist threat we are

contributing to the process of radicalisation of those minorities and thereby
sowing the seeds of further terrorist atrocities. Human rights are intrinsically
inclusive without exception, yet there are common patterns of insecurity
developing amongst marginalised groups including an increase in fear and
uncertainty; the alienation of some members of the community; and a growing
distrust of authority.
The practice of trading human rights for counter-terrorism has become a
sinister factor in the development and execution of the foreign policy of
established democracies. The UK & USA, for example are consolidated
democracies with a long history of liberal rights, and habitualised human rights
principles. But they have undergone similar experiences with respect to ‘ethnic’
and ‘global’ terrorism, adopting new ‘anti-terror’ policies as a response. And
there are similarities not only in the content and implementation of counter-
terrorism measures but also how these have been balanced with human rights.
Firstly in both cases, such measures target forms of opposition
perceived as posing an ‘existential threat’ to the polity. Both countries use a
vague and wide definition of terrorism in their legislation, which is not only
against the principle of legality but also results in controversial applications
such as the establishment of detention centres in Guantanamo Bay and the
process of illegal rendition. It is not an accident that the depiction of captives in
orange jump suits in Guantanamo is mimicked in the barbaric acts against the
innocent by ISIS and then similarly broadcasted to the world through the power
of the internet.
Secondly, in both countries one can also observe the tendency to
suspend due process, where the individual is stripped of any legal status. While
the contentious practice of pre-charge detention in the UK goes back to
the Prevention of Terrorism Act (1984), in the aftermath of 9/11, the Anti-
Terrorism, Crime and Security Act (2001) introduced for the first time the
draconian practice of indefinite detention for non-nationals.
Lastly, both governments have been attempting to securitize areas of
social life in response to perceived threats. Once a concern is deemed a security
issue per se, state officials, evoking a sense of emergency, can employ the right
to use extraordinary measures. Although the UK is a long-established liberal
democracy, it has nonetheless resorted to such draconian practices that are
comparable to those of a democratizing country. On the other hand, whilst
pursuing security policies these governments are under obligation to justify their
conduct in the eyes of their constituents and the international community.
Effective international cooperation requires respect for human rights.
Criminal justice response to terrorism (which includes the investigation,
prosecution, and adjudication of terrorist crimes) forms the cornerstone of
any sustainable counter-terrorism effort that respects the principles of the
rule of law, human rights, and due process. The recent record demonstrates
12 Sital Dhillon and Adam Mama-Rudd

that the reliance on extrajudicial methods has undermined respect for and the
protection of human rights. In particular, the extrajudicial transfer of
terrorist suspects has become emblematic of this problem. The disregard for
fundamental human rights norms also has the demonstrable effect of
undermining international cooperation in the struggle against suspected
terrorists. This also has the undesirable effect of eroding the available
channels for assisting investigations and prosecutions related to
transnational terrorist acts, particularly those that cross regional boundaries.
The absence of an effective and efficient regime for international
cooperation can result in frustration among law enforcement and security
officials that in turn leads to human rights violations. This is particularly
important when dealing with fragile states.
The international community has a responsibility to debate the issue of
balancing human rights with counter-terrorism in a pragmatic manner and
develop solutions that take into account both the security considerations of
individual states as well as the imperative need to respect established human
rights principles for each and every person. It is the author's personal belief
based on practical experience that there should be no contradiction between
effective counter-terrorism and upholding fundamental human rights. Both the
European Union (EU) and UN counter-terrorism strategies provide a blueprint
for a coordinated, consistent, and comprehensive response to terrorism, which
includes not only preventative and capacity-building measures, but also the
need to address political, economic, and social conditions conducive to the
spread of terrorism. The EU and its member states are hugely important in
providing assistance to international partners in the fields of rule of law and
counter-terrorism to strengthen institutions and build better security and justice
systems that improve standards in third-world countries. Some of that assistance
may be focused on improving human rights compliance specifically, but more
often the focus will be on wider capacity-building activity that indirectly has an
opportunity to improve human rights standards. Assistance may be provided in
some countries that do not uphold the same human rights principles. Often the
places where assistance is most needed will be those that are accused of the
gravest human rights violations. The challenge is to develop concrete steps to
ensure that human rights based approach is mainstreamed within all counter-
terrorism measures.

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[The final revised version of this paper was received on 05 November 2016]