Terrorism is the modern day “chain”. It is becoming increasingly difficult to deconstruct it, especially as a thin line seems to separate terrorists from freedom fighters. In Palestine for instance, ‘Hamas’ has confounded the world. Ordinarily believed to be a dangerous terrorist organisation, Hamas has clinched victory in democratic polls and will now lead the government in Palestine.
In Nigeria, the Movement for the Emancipation of the Niger Delta (MEND) has been a thorn in the flesh of the Nigerian government. Oil exploration and extraction in the Niger Delta has become a trap and many oil workers are fleeing because of this movement, which is believed to impose a serious security risk in the region. Apart from MEND, there are other regional organisations, like the Movement for the Actualization of the Sovereign State of Biafra (MASSOB), all claiming to be concerned about injustice directed against their region.
Where do we group such organisations? Are they terrorist organisations or freedom fighters? How will the state deal with such organisations to protect state security, which the former German Chancellor, Schroder, in a recent THISDAY’s glamorous award of excellence, linked to development?
The difficulty in arriving at a clear cut definition of what terrorism is, and who actually is a terrorist, has led to a conflict of opinions on how to deal with the problem, especially with regards to the demands of internationally recognized human rights regimes. For some, terrorism, for the very fact that it threatens public safety, coupled with the very existence of states, has changed the entire landscape of human rights; hence they say, “the rules of the game have changed”. To others, terrorism is not new and the state should be able to confront it without compromising the cherished rights of men and women. For them, the rules of the game cannot change on issues of liberty. So, the argument ranges: where do we draw the line between state security and fundamental human rights?
The July 7 and 14 terrorist attacks in the UK provide an illuminating context. A massive abridgement of the fundamental right to life, along with concomitant threats to state security and democracy are some of the issues thrown up in the air by these attacks. Put simply, on July 7 and 14, we saw a direct collision between liberty and security. Call it a clash of freedoms, if you like.
In a chilling filmed confession, later to be shown on an Arabic satellite network, al-Jazeera on September 1, Mohammed Siddique Khan, the alleged leader of the July 7 terrorist attack in London, tried to justify his actions. In doing this, he has led us to some extent into the psychology of the suicide bomber: a morbid revelation that seems to justify the deterrent philosophy of an “eye for an eye”.
In his words, Khan led us into his motivation: “until we feel secure you will be our targets. Until you stop the bombing, gassing, imprisonment and torture . . . we will not stop this fight” . For him, a battle line has been drawn: it is “you” and “we”.
In that video, Khan, in exercise of his fundamental right to free speech, calls himself a soldier at war with the West. He sees himself as a messiah anointed to avenge the injustice perpetrated against “his people”. His argument seems to threaten international law and globalization.
Expectedly, the state has taken up the gauntlet; hence the promulgation of the Anti Terrorism Crime and Security Act (ATCSA), and follow up proposals. In a consultation document released by the government shortly after the attacks, a list of unaccepted behaviours was compiled.
The difficulty with the government’s counter terrorism proposals was well articulated by the Human Rights Watch. According to the organization, the proposal for special antiterrorism courts are, “deeply worrying”, as they appear to be in breach of the UK’s human rights obligations; and others are so ill defined that they “risk criminalizing valid forms of dissent and undermining freedom of religion”.
The critical questions that must be resolved are:
• When freedom of speech conflicts with the right to life, which right should supersede?
• If a religious belief contradicts the notion of democracy and strikes at its very foundation, should the state fold its hands and watch as its corporate existence disintegrates?
• Who sets the criteria for determining where the balance tilts?
• What is terrorism and who defines what indeed constitutes terrorism?
• Although, it is easier to dismiss the argument of the terrorists as “warped”, has society actually taken a step further to save even the terrorist from himself? Why are they terrorists? Have we contributed in any way? When we use terms, like “war on terror” are we not playing into their hands, and invoking destruction? Should this “war” be fought on the battlefields or in the minds of men and women?
• What is justice and how serious are we with the concept of justice, both at the national and supra-national levels? Do we still have faith in the judiciary?
• Are there relativist views of justice or is justice universal? Which views are we propagating?
The question of balancing security and human rights cannot be resolved by politicians. This point must be taken seriously if we are to find a proper balance between the two competing interests in a democratic setting. The impotency of politicians to deal with the problem effectively is not unconnected to their love for power. Politicians’ exercise of power often comes in direct conflict with human rights. The tendency is to shove human rights aside in the exercise of power for a contentious ‘public interest’ cause.
The judiciary is the only organ that is well placed to examine what indeed is the public interest and when an overriding public interest could displace an individual’s claims to rights. That was exactly what the UK House of Lords did in December, 2004, when it came down heavily on the ATCSA in the Belmarsh detention cases. Fair trial cannot be compromised, neither can it be derogated from without fatally affecting the settled non- derogable rights under the International Covenant on Civil and Political Rights.
It is misleading to erect an anti-terrorism regime, as politicians often do, on the foundation that “the rules of the game have changed”. Human rights rules are not man made rules. They predate every constitution and every government. They are rights that accrue to individuals, by the very fact that they are human beings. The terrorist, the murderer and other offenders are also partakers in these inherent rights. The state’s right to punish offenders is not in doubt, but due process must be strictly followed. The simple rational for this framework is to ensure that an innocent person does not suffer for an offence he never committed.
Herein lays the difficulty with most governments’ anti-terrorism measures; there is little wonder why the UK government’s proposal for long detention of suspected terrorists collapsed recently at the Commons. We run the risk of punishing an innocent person in our passion to fight terrorism with ill defined laws that compromise due process.
In matters of civil liberty therefore, the rule of the game remains unchanged and unchangeable. Therefore, the line between liberty and security has long been drawn: Human rights norms can only be derogated from if the principle of due process within the law is not followed. No exigency in matters of security could excuse an oversight or breach of the due process rule. Long incarceration without trial flies in the face of this rule. The only institution that can be trusted to maintain this line, between security and liberty, is the independent judiciary with appellate safeguards to cater for human errors.
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