Abstract Every human being is held entitled for humanrights on the basis of simple characteristic of human being, and the same concept has also been recognized under the framework of international law in the shape of major humanrights law instruments. Some of the humanrights are even inalienable and non-derogable even in cases when some of them can be derogated under the need of the time. Terrorism being a great threat and violation of humanrights is not disputed but protection of these rights during counter terrorism operations is also most relevant and requires discussion, because various abuses have been reported in the recent history regarding the violations of humanrights during the conduct of counter terrorism operations and abuse of process on the pretext of counter terrorism measures. It has also been observed by the international bodies and organizations that the violations committed during counter terrorism operations are as much serious in nature as the acts of terrorism themselves and make no difference between the acts of terrorists and those who claim to be acting against them for elimination of the same. Some of the main reasons behind the violations of humanrights are that the definition of terrorism itself has not been agreed upon among the states of the World claiming to be the eliminators of terrorism, and the same is due to the personal interests of the states and particularly the powerful states, because terrorists of one state or nation may be the heroes and freedom fighters of the other, and the freedom fighters of one may be the terrorists for the other one. On the basis of this reason, most of the times powerful states succeed to get control over the insurgents and use their own measures and parameters for the use of force, collateral damage, and principles of necessity which cause apprehension for the violations of humanrights.
addressing de-listing requests (SC Resolution 1904, 2009). 5 In addition, the Security Council developed the de- listing mechanism, by lifting the sanctions on targeted individuals or entities automatically after the passage of 60 days of the Office of Ombudsperson’s recommendation for de-listing, unless the relevant Committee decides unanimously to keep the sanctions (SC Resolution 1989, 2011). Nevertheless, it seems that the excluding of any name from the list of sanctions demands the adoption of all the members of the Committee who are, at the same time, members of the Security Council. In this sense, the Special Rapporteur on the promotion and protection of humanrights while countering terrorism noted, in many occasions, that the procedures of listing and de-listing under the 1267 Committee are still conflicting with the international humanrights standards regarding the rights to a fair trial and due process (United Nations, HumanRights Council, A/HRC/29/51, 2015; Scheinin, 2015). In the Report of the Office of the Ombudsperson, it is also indicated that the task of the Office in de-listing process is facing several deficiencies, mostly access to secret information and transparency (United Nations, Security Council, S/2015/80, 2015).
These above examples are not the worst examples of terrorism in the guise of US foreign policy. The ‘war on terror’ fought by Ronald Reagan which focused on Central America and the Middle East left many thousands dead, countless others as refugees, and resulted in torture and the widespread violation of humanrights. This is especially true for Nicaragua, which was virtually destroyed by US actions after the US could not control the outcome of a Nicaraguan election. In response to the terror that the country experienced, Nicaragua did not institute its own ‘war on terror’ and attack Washington (as they would be entitled to if they followed the current example of the US) but followed the rule of law and took the matter to international institutions. The World Court ordered the US to stop the atrocities and pay reparations, condemning the country for the ‘unlawful use of force’ (terrorism according to the FBI definition) 111 and violating international law. The reaction from America was to increase the war, ordering the destruction of civilian targets, which
i.e. the ICCPR and ICESCR, while mentioning the ‘freedom from fear’ in their preambles. For example, paragraph 4 of the ICCPR reads as “Recognizing that, in accordance with the Universal Declaration of HumanRights, the ideal of free human beings enjoying civil and political freedom and freedom from fear (emphasis added) can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.” We can plausibly infer from these wordings that ‘freedom from fear’ is not even just a mere right but the ideal goal that could be reached upon respecting each set of rights. By affecting this ideal goal, terrorism endangers the whole body of humanrights recognized in the two covenants.
There are divergent views as to the applicability of international humanitarian law and humanrights law and their interrelationship in the context of the fight against terrorism. Each of these bodies of law was designed for a different situation and therefore has a different underlying logic and rules. For example, the right to life is very differently protected under these two branches of law, and therefore it is necessary to determine for each specific situation which rules govern the taking of life. Outside the context of an armed conflict, the use of lethal force against persons (‘targeted killing’) may be lawful only if it can, inter alia, be proved that it was the only option available, i.e. a last resort, and that it was absolutely necessary. Pursuant to international humanitarian law, persons taking a direct part in hostilities, combatants and civilians, may be lawfully attacked (civilians only for such time as they are directly participating). International humanitarian law also recognizes that, under specific circumstances, civilian injury, deaths or destruction of civilian property may be the incidental result of the conduct of hostilities (‘collateral damage’), which is not a result contemplated by humanrights law in peacetime. Another example of the different rules stemming from the two bodies of law, which reflects the different circumstances for which they were crafted, relates to the issue of procedural safeguards governing detention. Thus, humanrights law requires judicial supervision of detention in all circumstances, which is not the case with the detention of prisoners-of-war or civilian internees in international armed conflict. In this respect, the context in which an individual was apprehended – armed conflict or not – as well as the reasons for which he was detained – to keep him out of the hostili- ties or because he was suspected of being implicated in the commission of a crime – are decisive for which rule is applicable. A last important difference between the two branches of law relates to the enforcement mechanisms. Whereas humanrights treaties often establish international supervising and monitoring bodies, such as the UN HumanRights Committee and the European Court of HumanRights, there are no equivalent international humanitarian law courts. The question arises as to whether and to what extent humanrights courts are competent to handle intricate questions of international humanitarian law if these come up in the context of cases submitted to them. Obviously, issues of international humanitarian law are in principle outside the mandate of humanrights courts and committees, but may be taken into account using the tool of interpreta- tion.
Despite the failure to have a commonly agreed interpretation of terrorism in the international law it is a fact that breaches of humanrights law are beyond any reasonable doubt. The Fact Sheet No. 32 prepared under the auspices of the UN Office of the High Commissioner of HumanRights alludes that Terrorism is commonly understood to refer to acts of violence that target civilians in the pursuit of political or ideological aims. In legal terms, although the international community has yet to adopt a comprehensive definition of terrorism, existing declarations, resolutions and universal “sectoral” treaties relating to specific aspects of it define certain acts and core elements. In 1994, the General Assembly’s Declaration on Measures to Eliminate International Terrorism, set out in its resolution 49/60, stated that terrorism includes “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes” and that such acts “are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.” Ten years later, the Security Council, in its resolution 1566 (2004), referred to “criminal acts, including against civilians, committed with the intent to cause death or
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 humanrights 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 humanrights and civil liberties across the globe. Hence, the unimaginable became reality in which the very measures designed to protect humanrights 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 humanrights and freedoms and has indiscriminately targeted the innocent.
Today, Malala can speak from the safety of Western protection. In her famous UN speech, Malala’s words “moved the world,” according to HumanRights Watch. Yet, many Pakistanis have retracted their initial sympathy and admiration for her, more so after the publication of her book. This negative feeling was triggered initially by her emphatic use of the word “terrorist” that appears, only too easily, to reinforce the “Us” and “Them” binary that was perpetrated by President Bush’s 9/11 address. During Tremonti's (2013) CBC radio interview, Malala talks about how life changed after the Taliban came to power: “Like in the movie, something bad was happening in the movie of our life. The Taliban, they... the terrorists we call them, because they are terrorists and they are extremists, they started to misuse the name of Islam for their own personal benefits.” There is nothing wrong with her message, except that her language places her firmly on one side of the Bush-divide, giving rise to a discourse of exclusion and “othering”. The term “terrorism” has taken hold as an ideology in the dangerous semantics of the post 9/11 era. This causes a problem in that “‘terrorism’ is often used both intentionally and unintentionally to muddle distinct causes and acts into one singular problem” (Moeller 2009, 22).
In the end the House of Lords found that ss. 44 and 45 were compat- ible with the Convention. But assuming, for the sake of argument, that the courts had identified a possible incompatibility between the Con- vention and ss. 44 and 45 of the TA what might have been an appro- priate remedial response? Here, for example, a court could scrutinize the power as exercised. Sections 44 and 45 of the TA authorize the lawful stop and search of an individual for the purposes of detecting terrorist related crime. Under ss. 44 and 45 a stop and search for other purposes is unlawful. Although in Gillan itself there was no question of either an unlawful search or bad faith on the part of the police, it is undoubtedly true that the power has been instrumental in far more arrests for non-terrorist related offences than for those contemplated by the TA. The power has also been used in questionable circum- stances, as the Wolfgang episode rather publicly demonstrated. But given the structure of ss. 44 and 45 a court simply has no way of knowing what the motivations of an individual officer were. As we have seen there is no objective standard which purports to control the exercise of the power in ss. 44 and 45. Be that as it may, if a stop and search under ss. 44 and 45 produces evidence of criminality other than that related to terrorism, it is still admissible notwithstanding the fact that power may have been employed unlawfully. 287 In this situ-
individual or individuals rendered it imperative to do so.201 Introducing the Prevention of Terrorism Bill in the House of Commons, the Home Secretary explained that, despite being convinced that the threat from ‘al-Qaeda, its agenda and its adherents’ meant that there existed a ‘continuing public emergency’, he would not be seeking a derogation.202 The decision not to derogate was based upon advice from the police and security services which indicated that non-derogating orders would be sufficient to address the danger posed by the individuals concerned,203 meaning that derogating orders could not be said to be ‘strictly required’204 at that time 205 In light of this announcement, the JCHR recommended that, as there was no immediate necessity for derogating control orders, they should be removed from the Bill, asserting that the inclusion of ‘such unprecedented powers of executive detention in legislation which is being rushed through Parliament at a speed which prevents proper scrutiny’ was completely unjustified.206 The Joint Committee further argued that introducing domestic legislation providing for future derogating control orders without a derogation being in force at the time of enactment may violate the ECHR.207 There is, however, no legal precedent to support this contention, and, as Walker rightly submits, it is both ‘mistaken in principle and contrary to European practice.’208
Revolutionary forces failed to build popular, democratic organisations, and the Salvation Front parties that helped to oust Morsi have supported the Sisi regime and its policies. Opposition voices, the press, and humanrights groups have been suppressed; court rulings are politicised; and thousands have been thrown in prison. A series of laws have been passed that restrict civil rights and liberties, in particular the law criminalising demonstrations and the counterterrorism law. The spread of violence and the state’s failure to eliminate the Islamic State in Sinai have ultimately shored up the security apparatus and its control of the street, while police personnel act with impunity. Huge swathes of the citizenry who support President Sisi have turned a blind eye to humanrights violations, under the influence of regime propaganda saying that this is the only way to confront and defeat terrorism. The pro-Sisi majority has also been silent about deteriorating living conditions, waiting for Sisi’s promised prosperity following the realisation of several national mega-projects led by the state, which according to the regime, will bring massive revenues to the state treasury. There is no chance now of repeating the Tamarrod experience: the Tamarrod leaders support Sisi and his policies, and the boost given to the movement by the security apparatus under Morsi, by overlooking its petition drive calling
It is this implementation gap that this book seeks to address. It is built on a compilation of separate “viewpoints” or articles which I have written, and later updated, since beginning my mandate as Council of Europe Commissioner for HumanRights in April 2006. I have now visited almost all of the 47 member states of the Council of Europe. On each visit I have met victims of violations of humanrights and their families, leading politicians, prosecutors, judges, ombudsmen, religious leaders, journalists and civil society representatives as well as inmates of prisons and other institutions, law enforcement personnel and others. The “viewpoints” written on the basis of these many visits summarise my reflections, conclusions and recommendations. What I have seen and heard has made me deeply impatient. Of course, it takes time to develop a culture of respect for humanrights and to establish institutions and procedures which turn humanrights prin- ciples into reality. However, progress is too slow; and the disappoint- ment felt by many is more than justified.
50. Whereas data protection law should protect information collected for one purpose being used for another, national security and law enforcement policies are generally exempted from these restrictions. This is done through secrecy provisions in lawful access notices, broad subpoenas and exemption certificates such as national security certificates, which exempt a specific database from adhering to privacy laws. The Special Rapporteur is concerned that this limits the effectiveness of necessary safeguards against abuse. States must be obliged to provide a legal basis for the reuse of information, in accordance with constitutional and humanrights principles. This must be done within the humanrights framework, rather than resorting to derogations and exemptions. This is particularly important when information is shared across borders; furthermore, when information is shared between States, protections and safeguards must continue to apply. 80
1.17. The impetus for those recommendations derived in part from the well-known activities of Edward Snowden. I neither condone Edward Snowden’s actions nor underestimate the damage that they have done, on which I have been briefed. Nonetheless, the material taken by him through access to US National Security Agency [NSA] systems, and the articles subsequently published in outlets including the Guardian and the New York Times, have been the basis for suggestions that in the UK as elsewhere, broad and obscure powers were being exercised in a manner that few had understood. Litigation, fuelled by those allegations, has persuaded the IPT to indicate that some powers have lacked the necessary accessibility and foreseeability to comply with international humanrights standards. That in turn has driven the Government to accept, in the Bill and its accompanying documents, that much greater transparency is needed. One of the purposes of AQOT, and in particular my proposal for a powerful new regulator, was to ensure that Parliament and the public are properly and sufficiently informed, as democracy requires, about the powers being exercised in their name.
The present volume contains the following articles: Responding to Homegrown Terrorism: The Case of Boko Haram; Accountability of International NGOs: HumanRights Violations in Healthcare Provision in Developing Countries and the Effectiveness of Current Measures; Theoretical Underpinnings of Trust Investment Law: Juxtaposing Nigerian Law with Current Trends in Other Common Law Jurisdictions; HumanRights Abuse and Violations in Nigeria: A Case Study of the Oil- Producing Communities in the Niger Delta Region; Combating Domestic Violence in Bangladesh: Law, Policy and Other Relevant Considerations. As observed in preceding volumes of the Annual Survey, the present volume cannot cover all aspects of international and comparative law issues. However, Volume XXII modestly attempts to touch upon some pertinent topics with the hope that subsequent volumes will carry on the work of keeping the Annual Survey’s audiences abreast of developments in international and comparative law.
inherent to the contributions from Becker (2017), Du Preez, Simmonds and Jetty (2017), Roux (2017), Keet, Nel and Sattarzadeh (2017) and Ziemens and Abs (2017) seem to be a global phenomenon. For Waghid and Davids (2013) material conditions of (non)realised rights and relating violence indicate a need for the global rethink of citizenship, responsibilities, rights and belonging. For them global citizenship is a pedagogical encounter related to equality, intelligibility and amateurism (ibid.). Thinking of oneself as equal within political spaces is the preface to critique and dissensus. The global citizen demands to be recognised as an equal partner in political dialogue and to be heard (cf. Žižek 2012). For Biesta (2010) the assumption in education should be equality. Waghid and Davids (2013) adds to this that equal and intelligible citizens can think, speak and act for themselves. This assume that students, as citizens, neither lack the capacity for speech, nor are they producing noise (Biesta 2010; Roux and Becker 2017). In this view of humanrights in education, humanrights education and global citizenship education, students announce their presence in political spaces by means of speech and action while learning humanrights literacies by which they could speak out when their rights and the rights of others are violated (cf. Waghid and Davids 2013).
It might seem that the humanrights of legal scholars exist in a separate world, parallel to real life on the planet. And yet, the boundaries of that separate world are precisely the second aspect that changes the work context in which humanrights legal scholars have to face their new methodological challenges. Burdened with the theoretical requirements of the doctrine of the universality, indivisibility and inalienability of humanrights, humanrights legal scholars have to enter a ‘legal system’ of a sui generis nature. Indeed, international humanrights law has two sets of characteristics that alter the usual environments of legal theorisation (i.e. national legal systems) and that, by comparison, make it look like a ‘crowded house’ (Cruz Villalón, 2012). Cruz Villalón, Advocate General at the Court of Justice of the European Union, uses this analogy of the 'crowded house' to refer to the current state of fundamental rights in Europe 13 in reference to both the rights that are considered fundamental, and to the people who deal with the complex task of declaring and applying them. While the intervention of Cruz Villalón highlighted how the judges of Constitutional Courts and Courts of HumanRights in Europe find it awkward to cohabitate in a crowded house, following this metaphor, I would like to discuss the difficulties that living in a crowded house entails for anyone who has to tidy up, find the belongings of each person in the house, and plan the shifts to watch TV there (i.e. legal scholars).
People of Kashmir valley are taking full participation in peaceful protests against atrocities and discrimination. People of Kashmir are dissatisfied over political leaders of Kashmir, who do not respect Kashmiryat and the dignity of Kashmiri masses. And they do not protect and preserve the special rights of Kashmiris, who are not their leaders but so called villains and criminals of Kashmir. The Armed Forces Special powers Act which was passed in some states of India on 11 September 1958, but it was extended to Kashmir state in month of July 1990. The main powers of armed forces are following types: (1) fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law against assembly of five or more persons or possession of deadly weapons; (2) to arrest without a warrant and with the use of “necessary” force anyone who has committed certain offenses or is suspected of having done so; and (3) to enter and search any premise in order to make such arrests. The Indian Armed Forces have been given so much power in Kashmir that they do not bother in killing and torturing the Kashmiri people, those who have no guilt to be killed and tortured in extensive manner. There is need that this Armed Forces Special Powers Act ought to have been revoked when Umar Abdullah, the youngest Chief Minister of Kashmir, contested in 2009 election, he got success due to his speech in Indian Parliament. He said, “It is matter of our land and we will fight for it till we die”. These words create a kind of sympathy among Kashmiris people and they give him full support in 2009 elections. But, what Umar Abdullah did for the people of Kashmir, the people of Kashmir were having a lot of hopes over the youngest CM (Chief Minister), Umar Abdullah, but he did nothing for the people of Kashmir in his regime more than 107 people were killed and thousands got injuries during peaceful protests, where as it is well known that in democracy protest, demonstration, criticism, right to expression, and speech all are allowed under the democratic umbrella or within the domain of democracy.
Globalization is an ambiguous term. It means different things to different people. It may mean different things to the same person. So what does globalization mean?Globalization including its various dimensions – from political, economic, social, cultural, and technological – is defined in varied ways. This movement is ensured through the 4-Ds: deregulation, denationalization, disinvestment and digitalization.With the rise of Japan and Germany as main economic powers in the beginning of 1960s, scholars started to deal with the term as a merely economic phenomenon. But after the “withering” of Communism and the end of the Cold War, the term becomes the ‘buzzword’ of our time and its meaning remains elusive. It is now no more an economic phenomenon or a merely mental state as perceived during the Cold War, but it transforms into a movement being enhance through concentrating on (a) global common principles such as democracy and humanrights, (b) growing interdependence between states, and (c) unprecedented revolution in information technology. The quantitative and qualitative effects of this process are seen in many aspects of human life. Within these perspectives, globalization globalizing certain values which include economic patterns related to free trade, production, consumption and distribution; cultural patterns related to entity, language, and lifestyle; and political patterns related to democratic process and humanrights.