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The Judiciary’s Challenge as the Guardian of Human Rights in the post-9/11 era

Judicial bodies around the world have been constantly undermined in their role as the guardians of human rights, in the post-9/11 era. This is seen in the various ways. Firstly, there has been an increase in the passage of anti-terrorism laws in the post-9/11 years. However, these acts of parliaments have often been at odds with the spirit of the law. This is seen across jurisdictions including the UK, US, Germany and others. The UK is a prime example of such human rights violations through its former implementation of the Antiterrorism, Crime and Security Act, 2001, and section 23 in particular[1]. The statute in contention gave the British state powers to detain foreign nationals without trial, in the country. This represents a clear diversion against the judiciary’s role in protecting human rights as accorded in the Human Rights Act of 1998 and the British ratification of European Convention on Human Rights (ECHR)[2]. In effect, the Home Office has been granted quasi-judicial powers and this has resulted in human rights abuses as will be seen in later points.

The post-9/11 terrorism laws are repugnant to human rights and the implementation of justice through courts of law. This is seen in their very definitions, and the intentions of the framers. These laws have granted law enforcement and military organizations the jurisdiction for classifying individuals as terrorists, and whether their actions constitute terrorism. This question is explored in the Gillian v. UK case in the ECHR’s jurisdiction[3]. The case demonstrated that definitions of terrorism have enabled police and other executive bodies the power to remand individuals as terrorism suspects. Furthermore, the implementation of sections 44-47 of the Terrorism Act (2000), as contended in the case, eliminated the judicial standard of reasonableness as espoused in British Common Law. A violation of the ECHR’s article 8 thus resulted. The same has been observed in Russia via the Sabanchiyeva v. Russia case of 2008 concerning the refusal of authorities to return bodies of individuals presumed as terrorists under local legislation[4].

The issue of definitions has also been highlighted in the international context. State actors have been able to evade instruments of international law thanks to lack of a common definition of terrorism[5]. Actions by nation-states such as the United States have demonstrated disregard for the spirit of the law. They have advanced their own interests under the doctrine of Pacta Sunt Servanda[6], which emerges as a very valid threat to judicial supremacy on human rights issues. This is demonstrated by their development of Guantanamo as an instrument for evasion of murky international standards on terrorism.

Secondly, responses against acts of terrorism have demonstrated sidesteps against the judiciary’s role in protecting against human rights. Many responses by state actors around the world have demonstrated unlawfulness and disregard for human rights or justice. This is evidenced by responses such as the detention and subsequent torture of individuals. Camp Five Echo is one such example of inhuman acts against captured individuals. The Camp Five Echo problem was described as an institution that acted in violation of the human rights standards set out in the Geneva Convention[7].

Guantanamo presents another state response. The institution has been used to place prisoners beyond the reach of national or supra-national bodies of justice. However, the American Supreme Court has affirmed the rights of the incarcerated through Boumediene v. Bush and other cases concerning the habeas corpus principle[8]. However, the British Courts have reneged on their responsibility over human rights issues as seen in the A & Others v The Secretary of State for Home affairs (2004). This case affirmed detention without trial, which is repugnant to human rights, as espoused in the ECHR’s ruling that no one should be exposed to inhumane punishment in Chahal v UK (1996)[9].

The modern state has acted as a stumbling block to the human rights principle of due process in justice. The UN’s Draft Comprehensive Convention on International Terrorism has placed provisions for what should constitute due process for suspected terrorists[10]. These standards include; the need to investigate, the need to take the suspect into custody and the need to prosecute or alternately extradite to the required jurisdiction. However, state actors have not followed the outlined procedures in investigations of suspected terrorists.

The United States is a very good example of a state perpetrating such violations. The US Department of Justice has stated that 46 of Guantanamo’s prisoners are ‘ineligible’ for release, transfer or prosecution for their alleged crimes. In effect, the US demonstrates its contempt for justice, and the court as an institution. These prisoners are may perhaps be held indefinitely, without any form of judicial oversight over their affairs[11]. This instance is a violation of the rights of the person as prescribed in various conventions.

Germany is another state that has placed barriers to human rights and justice for suspected terrorists. This is outlined through its investigations policies as outlined in the Motassadeq case. The case demonstrated that German investigations over his abetting of the deaths of over 200 people were ineffective and insufficient for a conviction[12]. However, the case affirmed the German Supreme Court’s position on defending victims of human rights abuses under the state.

 

The United Nations has spearheaded new standards on the definitions of terrorism and human rights law[13]. However, there are many countries that have failed to ratify such conventions. In effect, this restricts their judicial bodies to address matters regarding terrorism and the human rights of suspected individuals. As a result, these states are able to get away with crimes against the individual’s rights.

The United serves as a good example. It is not a signatory of the Rome Statute. As a result, it is not bound to the ICC framework, despite the organization’s global jurisdiction for matters regarding war crimes and other breaches against human rights. Similarly, American courts are not bound to transfer human rights cases to the ICC. As a result, the American state has been able to subvert international justice for suspected terrorists, such as those held illegally in Guantanamo and other secret prisons around the world[14]. Similarly, it is important to note that the UN sanctions the ICC. However, the states wielding veto powers have deflected the ICCs attempts to investigate human rights abuses at times.

The same is reflected in the recent decision by African states to resist cooperation with international justice bodies such as the ICC. Countries such as Kenya and Sudan have demonstrated disregard for human rights and the international court system through their failures to cooperate with ICC and other international justice demands. This has institutionalised injustices against civilians under the pretexts of terrorism and related activities. However, it is important to note that the Universal Declaration of Human Rights and the concept of Opinio Juris are still binding to these States, irrespective of their position for international human rights justice institutions[15]. In his commentary on Opinio Juris, Kubalkova[16] posits that the acceptance of human rights as practices in such jurisdictions, as proclaimed in their constitutions and other legal instruments, places an obligation on these states to confer rights on the affected individuals.

This perspective is reflected in the arguments on habeas corpus in US cases such as Rasul, Hamdan and Boumediene. The Opinion Juris concept is critical to maintaining the sole role of the Judiciary in protecting human rights and administering justice to suspected criminals. De Londras agrees by explaining that, “the absence of a jurisdiction-stripping clause, federal courts had statutory habeas corpus jurisdiction over those detained in Guantanamo and, regardless of the content of relevant legislation; Guantanamo detainees had at least some constitutional rights, including the right to lodge a habeas corpus claim in federal court[17].”

The modern state has reflected militaristic attitudes towards terrorism. This is seen in the West’s ‘War on terror’[18]. This naming scheme reflects the aforementioned perspective. In effect, countries such as the United States have treated civilians and foreign individuals as enemy combatants as espoused in the Hamdi v. Rumsfeld case[19].  The application of military doctrine in legal human rights matters reflects the threats to judicial supremacy in the post 9/11 era. Military doctrine is focused on the ‘elimination of threats’. However, the absence of a war scenario indicates the threat to justice in its current form. Elimination of threats in a peaceful scenario is a blatant abuse of human rights it does not give consideration to principles governing human rights as expounded by various conventions.

Another militaristic perspective is seen from the current situation in Gaza. The Israeli state has adopted military solutions to the alleged terrorism that is sponsored by the Palestinian state. This comes despite international provisions for self-defence against aggression as set out in article 51 of the United Nations Charter. Instead, Israel has opted to remand Palestinian citizens in state prisons without trial. Similarly, it has regularly killed civilians in its incursions into Palestinian territories. Furthermore, the military incursions into Palestinian territory are acts of aggression, as they have not been sanctioned by the United Nations Security Council[20]. These actions are a threat to the supremacy held by international and Israeli organs of justice.

Another post-9/11 trend has been the placement of sanctions against individuals for their suspected membership or alleged support for terrorist organizations. This norm may be viewed through the Motassadeq case in Germany, where the accused was deemed to be an adherent of terrorism thanks to his association with a confirmed terrorist[21]. As a result, states have enforced limitations on the freedoms of individuals in the form of detention or freezing assets. The German case indicates that the state acted in contravention of the ECHR’s provisions on the freedom of the individual. Such cases indicate the disregard for legal rules and standards in the current European judicial framework.

Law offers its definitions for terrorism, as per the UN and other conventions that have been widely ratified across the world. It is under this understanding that terrorism may be viewed as threats to advance an objective to innocent victims, thanks to their psychological, religious/sociological or political perspectives. Similarly, terrorism is comprised of the following components; Violence or threats of violence, Against persons and/or things infrastructure/things, the individual victims are randomly selected, the aim is to spread fear or coerce authorities to act in a desired manner, and finally, terrorism is characterised by political or ideological aim. With this understanding, it is visible that the extrajudicial position taken up by numerous countries on terrorism is an extremity. There is no mention of membership as a possible standard in the evaluation of an individual’s validity as a suspected terrorist. This is further advanced by the European ruling on frozen assets in the Motassadeq case.

However, current statistics on terrorism highlight the challenge to the judiciary in its role as the champion of human rights. It is estimated that over 30% of individuals suspected of terrorism are held so for their alleged membership[22]. The Hamburg trials indicate the approach that many governments across the world have adopted for reasonableness in suspicion of a crime. However, proactive judicial institutions such as the German Supreme Court have demonstrated that they are up to task, thanks to the quashed conviction as it was repugnant to human rights and other legal norms.

Jus Cogens is a legal principle that proclaims that certain international legal norms may ever be derogated by states or other actors[23]. Torture, inhumane treatment, slavery, genocide and crimes against humanity are some of the actions that should never be perpetrated by an administration. Sidestepping this rule is likely to result in international intervention. However, Jus Cogens has not prevented some State actors from reneging on these principles. The United States in particular is an excellent violator of these principles. Military camps such as Abu Ghraib have demonstrated the country’s position against these legal norms. In 2003, numerous Iraqi civillians and soldiers were exposed to degrading treatment at the hands of American soldiers. Luckily, the American judicial system responded with trial against the perpetrators of these human rights violations. However, this proactive approach has not been demonstrated against Guantanamo. The American executive has successfully violated international human rights standards against individuals held at Guantanamo[24]. This is well demonstrated by the recently exposed human rights violations by the country’s security organs at the prison.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

Bantekas I and Nash S, International Criminal Law (Routledge-Cavendish 2007)

 

Becker T, Terrorism And The State (Hart Pub 2006)

 

Bianchi A and Naqvi Y, Enforcing International Law Norms Against Terrorism (Hart 2004)

 

Dandurand Y, Handbook On Criminal Justice Responses To Terrorism (United Nations 2009)

 

Darmer M and Fybel R, National Security, Civil Liberties And The War On Terror (Prometheus Books 2011)

 

de Londras F, ‘Terrorism As An International Crime’ In W. Schabas’, Routledge International Book of Criminal Law (1st edn, Routledge 2010)

 

Duffy H, The War On Terror And The Framework Of International Law (Cambridge University Press 2005)

 

Gross L, ‘International Terrorism And International Criminal Jurisdiction’ (1973) 67 The American Journal of International Law

 

Masferrer A, Post 9/11 And The State Of Permanent Legal Emergency (Springer 2012)

 

Pinto-Duschinsky M, Bringing Rights Back Home Making Human Rights Compa,Ble With Parliamentary Democracy In The UK (1st edn, Policy Exchange 2011)

 

PRESSMAN J, ‘Israeli Unilateralism And Israeli?Palestinian Relations, 2001?2006’ (2006) 7 Int Studies Perspectives

 

Proulx V and Simma B, Transnational Terrorism And State Accountability (Hart Publishing 2012)

 

Roberts A, ‘State Responsibility For International Terrorism. Problems And Prospects’ (2004) 15 EJIL

 

Saul B, Terrorism (Hart Pub 2012)

 

Trapp K, State Responsibility For International Terrorism (Oxford University Press 2011)

[1] Tal Becker, Terrorism And The State (Hart Pub 2006).

[2] Michael Pinto-Duschinsky, Bringing Rights Back Home Making Human Rights Compa,Ble With Parliamentary Democracy In The UK (1st edn, Policy Exchange 2011).

[3] Helen Duffy, The War On Terror And The Framework Of International Law (Cambridge University Press 2005).

[4] Aniceto Masferrer, Post 9/11 And The State Of Permanent Legal Emergency (Springer 2012).

[5] F de Londras, ‘Terrorism As An International Crime’ In W. Schabas’, Routledge International Book of Criminal Law (1st edn, Routledge 2010).

[6] Ilias Bantekas and Susan Nash, International Criminal Law (Routledge-Cavendish 2007).

[7] Aniceto Masferrer, Post 9/11 And The State Of Permanent Legal Emergency (Springer 2012).

[8] M. Katherine B Darmer and Richard D Fybel, National Security, Civil Liberties And The War On Terror (Prometheus Books 2011).

[9] Michael Pinto-Duschinsky, Bringing Rights Back Home Making Human Rights Compa,Ble With Parliamentary Democracy In The UK (1st edn, Policy Exchange 2011).

[10] Andrea Bianchi and Yasmin Naqvi, Enforcing International Law Norms Against Terrorism (Hart 2004).

[11] Ben Saul, Terrorism (Hart Pub 2012).

[12] M. Katherine B Darmer and Richard D Fybel, National Security, Civil Liberties And The War On Terror (Prometheus Books 2011).

[13] Yvon Dandurand, Handbook On Criminal Justice Responses To Terrorism (United Nations 2009).

[14] Ben Saul, Terrorism (Hart Pub 2012).

[15] Anthea Elizabeth Roberts, ‘State Responsibility For International Terrorism. Problems And Prospects’ (2004) 15 EJIL.

[16] V Kubálková, Foreign Policy In A Constructed World (ME Sharpe 2001).

[17] F de Londras, ‘Terrorism As An International Crime’ In W. Schabas’, Routledge International Book of Criminal Law (1st edn, Routledge 2010).

[18] Helen Duffy, The War On Terror And The Framework Of International Law (Cambridge University Press 2005).

[19] Kimberley N Trapp, State Responsibility For International Terrorism (Oxford University Press 2011).

[20] JEREMY PRESSMAN, ‘Israeli Unilateralism And Israeli?Palestinian Relations,  (2006) Int Studies Perspectives.

[21] Aniceto Masferrer, Post 9/11 And The State Of Permanent Legal Emergency (Springer 2012).

[22] Aniceto Masferrer, Post 9/11 And The State Of Permanent Legal Emergency (Springer 2012).

[23] Leo Gross, ‘International Terrorism And International Criminal Jurisdiction’ (1973) 67 The American Journal of International Law.

[24] Vincent-Joël Proulx and Bruno Simma, Transnational Terrorism And State Accountability (Hart Publishing 2012).

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