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Zhang, Nacy --- "Why Freedom Isn't Free" [2016] PerIntLawJl 11; (2016) 1 Perth International Law Journal 120


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WHY FREEDOM ISN’T FREE

NANCY ZHANG*

On 11 September 2011, the world changed forever; it was an event that will never be forgot- ten. Many nations have employed numerous counter-terrorism techniques to protect their people, especially the United States of America where the attacks occurred. It goes without saying that the terrorists were cruel and heartless on that day; however, there is a question of whether that justifies some counter-terrorism techniques that breach human rights. This essay explores some of those techniques in light of important human rights, the rule of law and international Conventions, such as the Convention against Torture (1987). To fight against an illegitimate cause with illegitimate means does not result in a legitimate conclusion: we all

know the proverb ‘two wrongs do not make a right’.

I INTRODUCTION

Terrorism. In its very nature, terrorism is the material presence of fear in the mod- ern world. It is a phenomenon that has dramatically changed the security environment worldwide, especially after the 11 September 2001 attacks on the United States – and acts of terrorism are only becoming more increasingly frequent. In Australia, three acts of ‘modern terrorism’ occurred in 2014 and 2015 alone: the Endeavour Hills stabbings, the Sydney hostage crisis, and the Parramatta shooting. Terrorism has a very real and direct impact on human rights, particularly endangering the enjoyment of the right to life, liberty and physical integrity of victims.1 However, counter-terrorism strategies have attracted a significant amount of criticism, despite their purpose and intention to reduce the threat of terrorism. This essay will examine a number of violations of human rights by counter-terrorism measures. As international efforts to combat terrorism have primarily focussed on cooperation between States, greater effort is required towards the effective protection of human rights as a crucial element in that cooperation. No topic has stimulated greater discussion about breaches of human rights than counter-terror- ism. This essay will ultimately conclude that counter-terrorism practices adopted by states are becoming ‘one of the most serious threats we face in the world today’.2 Human rights are so fundamental that no circumstances can ever justify its breach, and trans- parency and judicial oversight of counter-terrorism measures are of utmost importance.

1 * Nancy Zhang, Bachelor of Laws and Bachelor of Science (Psychology) Student (The University of West- ern Australia). Responsibility for the text lies with this author and all errors are hers alone.

Office of the United Nations, High Commissioner for Human Rights, Human Rights, Terrorism and Count- er-terrorism Fact Sheet No. 32 (July 2008), p 1.

2  Susan Marks and Andrew Clapham, International Human Rights Lexicon, Oxford University Press, Oxford (2005), 345.

A Defining Terrorism

Terrorism is ‘commonly understood to refer to acts of violence that target civilians in pursuit of political or ideological aims,’3 and the acts are designed to cause terror.4 How- ever, presently, there is no single, legally binding, universal definition of terrorism ad- opted by the international community. Defining terrorism has been a complicated and controversial task, despite the United Nations’ attempts to develop a comprehensive definition. Divergences between States5 and the fact that the term is so politically – and emotionally – charged, has greatly inhibited the development of its definition.6 Never- theless, the significant impact on human rights by terrorist acts is undeniable.

B Counter-terrorism

Terrorism is an international issue demanding global cooperation to combat it. Re- sponses to terrorism are broad in scope, and generally involve enhanced police powers, increased intelligence and surveillance activities, targeted laws and more permissive interrogation and detention policies. The term ‘counter-terrorism’, however, has a more restricted connotation, as being directed at terrorist acts. Counter-terrorism measures employed by States are directed at providing a safer and stronger security environment by combatting or preventing terrorism. But, it is often forgotten that they can impact on human rights just as greatly as acts of terrorism. Since 2001, States have adopted Security Council Resolution 1373 (2001) and have acted swiftly to reduce the threat of terrorism. This raises the question of whether States have acted too swiftly with serious consequences and breaches of human rights – and also, whether States have taken their obligations under human rights law seriously.

II THE ‘WAR ON TERROR’

The phrase ‘war on terror’ was first used by former President Bush in 2001.7 It origi-

3  Above n 1, p 5.

4  National Consortium for the Study of Terrorism and Responses to Terrorism, “Number of Terrorist At- tacks, Fatalities”, Washington Post (online), 12 June 2009 <http://www.washingtonpost.com/wp-dyn/content/ graphic/2009/06/12/GR2009061200051.html> .

5  Carlos F Diaz-Paniagua, Negotiating Terrorism: The Negotiation Dynamics of Four UN Counter-terrorism Treaties, 1997–2005 (ProQuest Information and Learning Company, 2008), 208.

6  Bruce Hoffman, Inside Terrorism (Columbia University Press, 2006), 1–5.

7  Eric Schmitt and Thom Shanker, “U.S. Officials Retool Slogan for Terror War”, New York Times (online), 26 July 2005 <http://www.nytimes.com/2005/07/26/politics/us-offi c ials-retool-slogan-for-terror-war.html> .

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nally referred to the US-led international military campaign initiated in response to the September 11 attacks,8 targeted at destroying al-Qaeda and other militant Islamist or- ganisations.9 The campaign was long and unsuccessful – and it failed to adhere to many of its international legal obligations. The investigations conducted and the prosecutions of terrorism suspects, as well as the treatment of terrorism suspects in custody, seriously contravened international human rights law.10 This is especially the case relating to those persons detained at the US military detention facility at Guantanamo Bay, Cuba, where most of the detainees are being held indefinitely without charge.11

Criticism on the ‘War on Terror’ is primarily directed at its morality, efficiency, and economics. Critics have strongly questioned the notion of a ‘war’ against ‘terrorism’, by contending that States and their governments have exploited the circumstances to pursue long-standing policy or military objectives,12 reduce civil liberties,13 and infringe upon human rights. In the United States, many prosecutions have failed to properly target terrorism suspects: at the time of investigation, the individuals targeted did not appear to be involved in terrorist activities or financing terrorist groups.14 In 2013, Pres- ident Obama announced that the United States has ceased pursuing the ‘War on Terror’, and has instead begun focussing on particular enemies to ‘dismantle specific networks of violent extremists’,15 rather than a tactic. However, this essay argues that this is mere- ly a shift in focus: it does not detract from the fact that violations of human rights are still taking place and it is ultimately still a ‘war on terror’.

8  Wojtek Mackiewicz Wolfe, Winning the War of Words: Selling the War on Terror from Afghanistan to Iraq

(Praeger Security International, 2008), 45.

9  Steve Schifferes, “US Names “Coalition of the Willing””, BBC News (online), 18 March 2003 <http://news. bbc.co.uk/2/hi/americas/2862343.stm> .

10  Human Rights Watch, Illusion of Justice: Human Rights Abuses in US Terrorism Persecutions (Human Rights Watch Institute at Columbia Law School, July 2014), 1.

11  Ibid, 1.

12  George Monbiot, “A Wilful Blindness” on George Monbiot, Monbiot (11 March 2003) <http://www.mon- biot.com/2003/03/11/a-wilful-blindness/> .

13  Ryan Singel, “FBI Tried to Cover Patriot Act Abuses with Flawed, Retroactive Subpoenas, Audit Finds”,

Wired Magazine (online), 3 March 2008 <http://www.wired.com/2008/03/fbi-tried-to-co/> .

14  Above n 1, 2.

15  Paul D Shinkman, “Obama: “Global War on Terror” Is Over”, US News (online), 23 May 2013 <http:// www.usnews.com/news/articles/2013/05/23/obama-global-war-on-terror-is-over> .

III HUMAN RIGHTS

Human rights are generally recognised to be inalienable,16 fundamental rights, inher- ently belonging to all human beings,17 regardless of nation, religion, language, location, ethnic origin or any other status.18 Human rights are universal,19 and apply all individ- uals equally.20 The full range of human rights involves respect for, and protection of, civil, political, economic, social and cultural rights.21 International human rights law is enacted in international human rights treaties,22 including the International Covenant on Economic, Social and Cultural Rights (1976), and the International Covenant on Civil and Political Rights (1976) and its two Optional Protocols. There are also a number of other international treaties, such as the Convention against Torture (1987) and the Convention on the Elimination of All Forms of Racial Discrimination (1969). Further, customary international law may provide protection for human rights, such as non-re- foulement. Relating to international terrorism, there are 18 international instruments within the framework of the United Nations system.

A Human Rights and Counter-terrorism

Since the establishment of the Counter-Terrorism Committee (CTC) in 2001, count- er-terrorism and human rights have attracted a great deal of interest.23 It is undisputed that States have the fundamental obligation to protect their citizens from terrorist at- tacks by taking positive action, as ‘security of the individual is a basic human right’.24 Yet, it is just as, if not more, important that States uphold their duty to ‘ensure that all counter-terrorism measures respect human rights [emphasis added]”.25 In Security Council Resolution 1456 (2003), the CTC declared that States must ensure that any counter-terrorism measures ‘comply with all [emphasis added] their obligations under

16  Office of the High Commissioner for Human Rights, What Are Human Rights, United Nations Human Rights <http://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx> .

17  Ibid. 18  Ibid. 19  Ibid. 20  Ibid.

21  Above n 1, 3.

22  Above n 1, 3.

23  Security Council Counter-Terrorism Committee, Protecting Human Rights While Countering Terrorism (10 September 2015) United Nations <http://www.un.org/en/sc/ctc/rights.html> .

24  Above n 1, 1.

25  Human Rights Watch, Terrorism/Counterterrorism, Human Rights Watch <http://www.hrw.org/topic/ter - rorism-counterterrorism> .

international law’, particularly regarding human rights.26 States are obligated to secure fairness and due process in investigations and prosecutions, as well as proper humane treatment of those in custody.27

In modern times, the counter-terrorism measures adopted by States have often posed serious challenges to human rights and the rule of law.28 For example, some States have engaged in torture and other ill-treatment conduct to counter terrorism, encouraging disregard for legal and practical safeguards available to prevent torturous acts.29 Other States have directed and returned persons suspected of participating in terrorist activities to countries where they face a real risk of torture or other serious human rights abuse. Undoubtedly, this violates the international legal obligation of non-refoulement.30 Further, other violations have included prolonged, incommunicado detention without judicial review and security measures that reduce the rights or freedoms of citizens and breach principles of non-discrimination. These measures, especially when taken together, have a highly detrimental effect on the rule of law, good governance and hu- man rights – all of which are fundamental to being human. Finally, they are also coun- terproductive to national and international efforts to combat and reduce terrorism acts and threats.31 Therefore, as States are pushed further into circumstances of urgency and desperation, responses by States have become increasingly extreme, even to the point where human rights law is continually breached.

B The Right to Life, Liberty and Security

Everyone, including terrorism suspects, has the right to freedom from arbitrary deten- tion and arrest.32 However, some measures adopted by some States have challenged this right. The relevant human rights procedures require: that detention – that is, deprivation of liberty – is based on lawful grounds and procedures; that detainees are informed of why they are in detention, especially the charges against them;33 and that they are provided with access to legal counsel.34 The right to freedom from arbitrary detention

26  Security Council Res 1456, UN SCOR, 4688th mtg, UN Doc S/RES/1456 (20 January 2003) para 6.

27  Above n 10, 1.

28  Above n 1, 1.

29  Ibid, 1.

30  Ibid, 1.

31  Above n 1, 1

32  International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 14.

33  UN Human Rights Committee, CCPR General Comment No. 8: Article 9 (Right to Liberty and Security of Persons) (30 June 1982) RefWorld <http://www.refworld.org/docid/4538840110.html> .

34  GA Res 43/173, UN GA, 76th mtg, UN Doc A/RES/43/173 (9 December 1998) principle 17.

is non-derogable.35 However, since 2001, particularly controversial counter-terrorism measures have included: indefinite, prolonged and/or incommunicable detention with- out access to legal counsel or the judicial system; unacknowledged or concealed deten- tion; and detention of children.36

Denying access to the courts greatly threatens the legality and conditions of detention, which results in some detainees being subjected to torture and other ill-treatment. Fur- ther, unacknowledged or concealed detentions encourage the occurrence of disappear- ances and other serious human rights violations.37 At the US detention facility in Guan- tanamo Bay, hundreds of detainees suffered through prolonged, indefinite detention without trial or being charged with a crime, despite the United States Constitution pro- scribing against such practices.38 These practices are unlawful pursuant to international human rights law, even during circumstances of emergency. Further, some States have adopted the practice of ‘targeted killings’ directed to specific individuals, as an alterna- tive to arresting and offering a fair trial to them. Amnesty International has criticised this practice, stating that it is a disproportionate use of force and that proper measures under the rule of law are neglected.39

1 Case Example: Right to Freedom from Ill-Treatment

Uzair Paracha, a Pakistani American, was subjected to abusive detention confinement, prior to his conviction of providing material support to al-Qaeda in 2005. Prior to his trial, the US Federal Government transferred Paracha to solitary confinement where he remained for almost two years, under a special administrative measure. His ability to contact other people was particularly restricted, on the basis of fabricated or exaggerated grounds. He has described the times when the guards took his blanket and clothes from him during the winter, and when they intentionally delivered food while he was praying, as they knew he could not talk during that time.40 It is important to remember that in some cases, the emotional and mental toll of solitary confinement can interfere with the

35  Above n 32, art 6.

36  United Nations Economic and Social Council, Promotion and Protection of Human Rights (7 February 2005) UN Doc E/CN.4/2005/103, para [36].

37  Ibid, para [42].

38  Above n 10, 15.

39  Amnesty International, Torture and Ill-Treatment in the “War on Terror” (1 November 2005), ACT 40/014/2005.

40  Letter from Uzair Paracha to Human Rights Watch, December 26, 2012.

defendant’s ability to prepare their defence or their judgement.

C The Right Not to be Subject to Torture and Similar Ill-Treatment

Everyone, including terrorism suspects, has the freedom from torture or cruel, inhumane or degrading treatment.41 Each State must take effective legislative, administrative, judi- cial or other measures to prevent acts of torture within its jurisdiction.42 Broadly speak- ing, torture is defined as acts intentionally inflicting severe pain or suffering for the purpose of obtaining information or a confession.43 Importantly, no circumstances what- soever can justify acts of torture.44 This prohibition against torture is non-derogable,45 based on the general consensus that torture and similar ill-treatment are immoral and impractical,46 and that it is a jus cogens norm. 47 However, some States have employed counter-terrorism policies and measures directed at circumventing this prohibition, which has greatly concerned the Special Rapporteur on Torture and other mandate hold- ers. Examples include the interrogation techniques of Guantanamo Bay detainees adopt- ed by the United States which consisted of prolonged periods of isolation, and exposure to extreme heat and cold and humiliation – all of which cause extreme suffering. In its defence, the United States has legally defined ‘torture’ as actions resulting in serious physical injury, such as organ failure. This threshold greatly exceeds that of the Conven- tion against Torture. A United Kingdom judged has commented, that ‘America’s idea of what is torture... does not appear to coincide with that of most civilised nations’.48 Further, Egypt has also been criticised for its failure to provide judicial oversight of its counter-terrorism procedures, which have resulted in arbitrary detention and torture of terrorist suspects.49

41  Above n 32, art 7 and 15.

42  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), art 2(1).

43  Above n 41, art 1(1).

44  Ibid, art 2(2).

45  Above n 32, art 7 and 4(2).

46  Above n 39.

47  Lani Virostko, Counter-terrorism and the Protection of Human Rights, Human Rights Council, 13th sess, Agenda Item 3, (8 March 2010) [7].

48  Richard Norton-Taylor and Suzanne Goldenberg, “Judge’s Anger at US Torture”, The Guardian (online), 17 February 2006 <http://www.theguardian.com/uk/2006/feb/17/politics.world> .

49  United Nations General Assembly, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, A/HRC/13/37, UN GAOR, 13th sess, Agenda Item 3 (28 December 2009), [30].

1 Evidence Obtained by Coercion

Evidence obtained by coercion is only one type of evidence that has raised great concern relating to the legitimacy of the defendant’s conviction, as it is prejudicial evidence that cannot be admitted.50 Particularly in terrorism cases in the United States, prosecutors have persistently introduced evidence that appears to have been obtained through coer- cion – and the courts have accepted that evidence. Torture is as likely to produce false information as the truth, as those subjected to torture will make false admissions just to end the pain and suffering. Evidence obtained in this manner should be approached with great caution, due to its unreliable nature.51 In 2003, Abu Ali, a US citizen, was arrested during a mass arrest conducted by authorities in Saudi Arabia. He was detained for 20 months without charge or access to legal counsel. During his detention, he was alleged- ly interrogated and abused by Saudi Arabian officials, with cooperation from United States agents. Human rights organisations claim that Ali was subjected to extraordinary rendition and torture – and it was only until he stated he would cooperate, the torture stopped.52 If such breaches of human rights were allowed, it only undermines the prin- ciple of counter-terrorism. The fact that he was convicted of providing material support to al-Qaeda does not justify the treatment he received.

2 Is there a Justification for Torture?

Some people reason that the ultimate object of saving lives outweighs the right to not be subjected to torture. This argument is presented as a ‘ticking bomb’, where the de- tained person knows where a bomb set to explode is located and how to diffuse it. The right to not be subjected to torture is a non-derogable right, which means torture is absolutely prohibited even in the ‘ticking bomb’ case. If torture were allowed in excep- tional circumstances, then ‘the exception readily becomes state practice’. Also, difficult questions relating to the limits of the exception arises – for example, how imminent does the attack need to be to justify use of torture, and how much certainty about the detainee’s actually possessing the relevant knowledge is required? For example, prior to 1999, Israel had used torture, or what it called ‘moderate physical force’, justified by the ‘ticking bomb’ scenario. However, Israeli security authorities were rarely successful

50  Above n 32, art 14(3)(g).

51  Human Rights News, “The Legal Protection Against Torture”, Human Rights News (online), 1 June 2004

<http://www.hrw.org/legacy/press/2001/11/TortureQandA.htm> .

52United States of America v Ahmed Omar Abu Ali, 528 F.3d 210, 269 (4th Cir. 2008).

at identifying the suspect with the particular knowledge. Rather, the authorities applied the scenario liberally to justify torturing almost every Palestinian detainee suspected to have any sort of information.

D The Right to Due Process and to a Fair Trial

Everyone, including terrorism suspects, is entitled to a fair hearing by an independent and impartial tribunal.53 This right requires that defendants have access to competent counsel and adequate time and resources to prepare their defence.54 Terrorism cases since September 2001 have raised serious concerns about the right to a fair trial. Guar- anteeing this right and the right to due process is essential for ‘ensuring that counter-ter- rorism measures are effective and respect the rule of law’. Further, other rights available to ‘all persons charged with criminal offences, including terrorism-related crimes, in- clude the right to be presumed innocent, the right to a hearing with due guarantees and the right to have a conviction and sentence reviewed by a higher tribunal satisfying the same standards’.55

1 Case Example: Prejudicial Evidence

Prejudicial evidence, such as evidence obtained by coercion or evidence inaccurately representing the defendant as being involved in terrorism, violates the right to a fair trial. In a large number of terrorism cases, prosecutors have introduced evidence that should have been overruled by the courts, but was actually admitted. Terrorism at its every core is terrifying, with a purpose of instilling great fear in the general population. This is particularly controversial where jurors in terrorism trials already have that fear instilled within them, which would only increase if prejudicial evidence were admitted. As jurors’ objective judgements become skewed, the defendant’s right to a fair trial is denied as a result.56

E The Right to Privacy

Everyone, including terrorism suspects, has the right to not be subjected to arbitrary or

53Universal Declaration on Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), art 10.

54  Above n 10, 76.

55  Above n 36, [44].

56  Above n 10, 76.

unlawful interference with their privacy, and everyone has the right to legal protection against such interference.57 After September 2001, the United States enacted the Patriot Act (2001) – and since then, concerns have been raised regarding its extensive surveil- lance techniques for combatting terrorism. Many of its provisions have been scrutinised as failing to provide proper judicial supervision and surveillance procedures that violate the right to privacy.58

IV CONCLUSION

Since September 2001, at least 35,000 people have been convicted as terrorists world- wide. The acts of terrorism have ranged from bombing public areas to blogging about a protest.59 In contrast, before September 2001, only a mere few hundred people were convicted of terrorist acts each year. This stark and dramatic increase of arrests and convictions, not only demonstrates that the global security environment has changed, but that there is greater potential for violations of international law to occur. The more people exposed to national and security authorities, the greater the risk of human rights violations. Therefore, adhering to human rights law through counter-terrorism measures has become more important than ever. States have exploited fears of terrorism and ter- rorist attacks to engage in aggressive counter-terrorism measures. Such measures are masquerading as lawful measures – however, as addressed by this essay, many measures by some States are violating human rights laws. This apparent legitimacy of counter-ter- rorism measures only increases the risk for unlawful State practices to become the norm and the occurrence of State crime. Further, States have typically enacted counter-terror- ism laws targeted at non-violent activities, groups and individuals.60

Our freedom isn’t free. There is no denying that there has been, and continues to be, significant human cost to certain counter-terrorism measures adopted by some States.61 ‘Respect for human rights and the rule of law [at all times] must be the bedrock of the

57  Above n 32, art 17(1) and (2).

58  Above n 46, 12.

59  Martha Mendoza, “Rightly or Wrongly, Thousands Convicted of Terrorism Post-9/11”, NBC News (online), 9 April 2011 <http://www.nbcnews.com/id/44389156/ns/us_news-9_11_ten_years_later/t/rightly-or-wrong- ly-thousands-convicted-terrorism-post-/#.VhqpYBOqqko> .

60  Jade McCulloch, “A Critical Introduction to Counter Terrorism and State Crime”, International State Crime Initiative <http://statecrime.org/state-crime-research/a-critical-introduction-to-counter-terrorism-and-state- crime/> .

61  Above n 10, 1.

global fight against terrorism’.62 Democratic principles and values, especially the rule of law, are essential tools in the battle against terrorism. Terrorist suspects must be pro- cessed pursuant to human rights and the rule of law. While States continually assert vi- olations of human rights are necessary, evidence has shown otherwise: that it only exac- erbates, rather than counters, the terrorist threat.63 Therefore, a thorough understanding of the complex relationship between human rights, terrorism and counter-terrorism is necessary.64 Accordingly, enforcing human rights obligations to both civilians and ter- rorist suspects is essential to the fight against terrorism. The importance of maintaining the protection of human rights cannot be underestimated.

62  Above n 1, 2. 63  Above n 57. 64  Above n 1, 2.


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