Assumption: Countering Terrorism without violating Human Rights

The Ninth Wave - Ivan Konstantinovich Aivazovsky

Can governments fight terrorism without infringing upon human rights?

Politicians, some scholars, but mostly Human Rights Activists affirm that it is indeed quite possible to do so. For example:Terry Davis; former Secretary General of the Council of Europe; said,

"(..) the need to respect human rights is not an obstacle to the effective fight against terrorism."

Dr Robert Goldman; as independent expert to the UN Commission on Human Rights; said,

"Properly viewed, the struggle against terrorism and the protection of human rights are not antithetical, but complementary responsibilities of States."

And Kenneth Roth; the Executive Director of Human Rights Watch; said,

"…terrorists believe that the ends justify the means, that their political or social vision justifies the deliberate taking of civilian lives in violation of the most basic human rights norms. To fight terrorism without regard to the constraints of human rights is to endorse that warped logic."

The assumption that terror can be fought against without disregard for human rights must be tested, because doing so will help "policy makers and other concerned parties to develop counter-terrorist strategies that respect human rights." (in ICT paper) as much as possible. 

Empirical Evidence

It is universally agreed that combating terrorism is imperative to keep international peace and security. However, when countering the phenomenon there's one standard measure that is viewed as a possible violation of human rights: Racial Profiling.

Human rights laws (and other conventions) bear as their centrepiece the principle of non-discrimination. Profiling is often viewed as a discriminatory practise (although the UN Commission on Human Rights does not rule it out if necessary and proportionate to the aim pursued), but it seems to enjoy broad public support, with some arguing that: 

• "Ethnic profiling is necessary. Our other security measures have failed."[Here] 
• "It is reasonable."[ibidem]
• "You can combine it with behavioral profiling and use on-line profiling, known as data mining"[Here]
• "(...) the prohibition [of racial profiling) jeopardizes our safety."[Here]

With public support and safeguarded by the right to derogate the rights of terror suspects, States may undergo racial profiling if the measure is absolutely necessary, objective and proportioned. 

Academic Evidence

Dr Alex Conte argues that:

• The profiling must be lawful (i.e. it needs to be prescribed by law; be made subject to safeguards against abuse and it must seek to "effect a 'limitation' of rights rather than an exclusion of them"); 
• It must be rationally connected to its objective (he admits "There does appear to be a level of rational connection between the profiling of young Arab men and the objective of identifying terrorist suspects" although questioning its effectiveness "Given the breadth of nationalities within which Islam is practiced, however, racial profiling is not an entirely effective means of detecting potential Global Jihadists") 
• It must be balanced enough to achieve proportionality (i.e. a question must be asked: "Having regard to the importance of the principle of non-discrimination on the basis of race, would the effects of racial profiling be proportional to the importance of the objective, and the effectiveness, of racial profiling?")

Conte concludes that even if the non-discrimination principle is derogable, "racial profiling (..) would be a disproportionate measure and inconsistent with [the Guide offered to legislators, the executive and the judicial, under the basic premise that counter-terrorism must abide to Human Rights standards]".

On the other hand, Dr Boaz Ganor defends that:

• The objective of Profiling must be sufficiently important (i.e. "The question is, can this fact contribute significantly to countering this phenomenon? Is the use of ethnic profiling helpful in identifying terrorists, exposing terrorist plots, and thwarting possible attacks?" - if the answer to these questions is 'Yes' then the measure is important enough); 
• It must be properly identified (i.e. although the concern with stereotyping specific individuals is valid, he also argues that ignoring the known fact that global Jihadism has an ethnic common denominator won't alter that fact - known to the public "with or without the use of racial profiling");
• It must be proportional (i.e. we must ask the following questions: "is there a crucial need to use [the measure], is it necessary, or is it negligible? (...) is there an alternative to this specific measure or this is the only measure that can be used at this point in time to achieve the desired outcome?").

Ganor concludes that "Fighting terrorism is a frustrating, ongoing multi-layered policy." and thus ethnic profiling should be viewed as a necessary, effective and legitimate part of the "multi-layered counter-terrorism puzzle."

Conclusion

For all of the above I conclude that the assumption "terrorism can be fought without infringing upon human rights" is partly true, because while basic human rights will be respected (i.e. most of non-derogable rights[in International Covenant on Civil and Political Rights]) when combating terrorism; some measures, however - that often raise Human Rights concerns (e.g. racial profiling; secret detention; targeted killing etc) - will necessarily and justifiably be implemented by States due to the impact of terrorism on human rights, and security of society at large.

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