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Islam and Human Rights ( 4 Sept 2013, NewAgeIslam.Com)

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Human Rights and Terrorism, the Image of Balance



By Dr Fawad Kaiser

September 05, 2013

When it comes to the fight against terrorism, most democratic governments presume that they cannot be effective against the threat unless they sacrifice some of their democratic substance

One of the important consequences of the September 11, 2001 attacks was a rapid transformation in the security priorities of Pakistan and many western states. Within a short time, terrorism surfaced as arguably the single most important security issue for security agencies, and its elevation up the list of priorities rapidly engendered a bewildering array of new anti-terrorism laws, doctrines, strategies, initiatives and measures. The terrorism threat is now a major focus of policy-making attention and commands enormous intellectual and material investment from the government, the intelligence agencies, academia and the media. At the same time, the terrorism discourse — the vocabulary, terms, assumptions, labels and narratives used to describe and explain terrorism — has emerged as one of the most important political discourses of the modern era. As a term of elite and popular discourse, terrorism has come to possess obvious ideographic qualities.

Within the matrix of military strategy and operations in the war on terror, it begs the question why it has so far failed to produce the desired strategic effect. Pakistan’s counter terror strategy has been plagued by five basic challenges: the nature of the enemy and the emergence of new terrorism; the inability of the Pakistani politicians to articulate a coordinated counterterrorist/counterinsurgency strategy; the particular goals adopted to fight this war; and the resource challenges created by these operational and strategic objectives. The central argument is that Pakistani politicians and military strategy is fundamentally flawed because Pakistan has failed to pay sufficient attention to the basic preconditions required to generate a successful strategy. Because of this failure at the highest political level, the armed forces have faced the challenge of trying to reconcile a profound mismatch between resources and commitments.

The relationship between security and liberty lies at the heart of counterterrorism policies. It examines the notion of freedom and the place of human rights in contemporary democracies. The defenders of the human rights thesis denounce the re-framing of civil liberties but fail to address the freedom issue. One of the key features of the counterterrorism policies adopted by countries in the post-September 11 era is the emergence of executive-inspired legislation that restricts individual freedoms in the name of the war against terrorism. Current counterterrorism measures rest upon variously extended parallel legal frameworks that provide, namely, for the creation of terrorism-related criminal offences; for the extension of the powers of law enforcement agencies; for special procedures for the prosecution of terrorism-related offences; and for exceptional forms of detention.

Although widely criticised, these temporary emergency measures have been further strengthened following the series of bombings both on civil and military bases, prison breaks, kidnapping for ransom, thus creating a de facto permanent state of emergency that establishes the insecurity of the law in the name of the security of the state. In this paradoxical situation, emergency rules are introduced to cope with exceptional circumstances but are gradually transformed into permanent elements of domestic legal frameworks. Yet, this is not a new phenomenon. Since the World War II, at least, European states faced with terrorism have usually dealt with it by introducing special laws and, occasionally, by declaring a state of emergency to provide for suspension of certain civil rights. Consequently, when suspending legal categories, the executive redefines its legal system and creates new legal categories. Emergency rules thus become part of an ordinary model of governance, indicating at the most its degree of compliance with the ideal type of democracy.

It is hard not to focus on what lies beneath this normalisation of emergency, i.e. the relationship between freedom and security in a democratic state’s response to terrorism. When it comes to the fight against terrorism, most democratic governments presume that they cannot be effective against the threat unless they sacrifice some of their democratic substance. Constitutional guarantees are believed to impede the implementation of efficient counterterrorism policies and are restricted in order to protect the security of individuals. Despite many academic critics, this exercise by politicians to justify the introduction of parallel legal frameworks and the subsequent restriction of civil rights in many countries has recurrently used antinomy.

The quest for balance relies on the assumption that the value of human rights is equal but opposed to that of security. Following the principle that the protection of one operates at the expense of the other, it is presumed that the government cannot possibly counter the new terrorist threat unless it creates a new legal framework establishing a new equilibrium between these two values. This new ‘balance’ should comply with the general legal pattern that is so positioned that in case of conflict between two social values equally protected by the law, one of them must be sacrificed or redefined so that it becomes subordinate to the other.

The new counterterrorism measures are therefore presented as necessary steps to secure our freedom from fear and from the threat to life, and that it protects and maintains liberties, because henceforth civil liberties must be balanced against the need to maintain order. In the immediate aftermath of September 11, the idea of a balance to be struck between liberty and security is shared by all major political actors. It is widely admitted that there has to be a balance between protecting the citizen and maintaining freedom and that the anti-terrorist legislation has to be balanced against domestic civil rights.

Yet, as the restriction of civil rights is doomed to call into question the compliance of the new counterterrorism policy with fundamental democratic principles, the government seeks to show its awareness of the values at stake and its rejection of any undemocratic model of governance: how best to protect ourselves effectively while maintaining the maximum freedoms is one of the biggest issues facing all democratic governments in the aftermath of September 11.

A second set of arguments related to the protection of public safety and security relies on the idea that ‘the rule of law does not mean the rule of weaknesses, because if democracy becomes a synonym for weakness, this would sign its death warrant. Democratic societies are not believed to be structurally adapted to the security requirements raised by the new situation because their legal frameworks are overprotecting civil liberties at the expense of security.

Consequently, not only do emergency rules not jeopardise democracy but they are also the proof of democracy’s capacity to attack its enemies. Far from being a sign of decline, they are the expression of a vitality that is necessary to ensure democracy and the protection of public safety and security: the onus lies on the state to protect democracy and freedom, the onus also lies on the state to conduct the war against terrorism without showing any weakness, even if we must temporarily accept rules that slightly limit our freedom.

Searching the trunk of a car is avoiding the use of rocket launchers, as has happened in Beziers; searching handbags or people at the entrance of public places is avoiding the putting of bombs in big stores or in the subway, as has happened in 1995; searching an apartment is reducing the hiding places for weapons and the stocks of ammunition. These measures cannot possibly jeopardise democracy for they seek to protect the collective security that far from being opposed to individual liberty is one of the conditions of the exercise of the latter.

Following the principle that this balance can be found only through the law, the solution rests upon the general legal rule that in case of conflict between two equally protected social values, one of them must be sacrificed or restricted. Since it is assumed that the parameters of this legal conciliation are inevitably determined by the political appreciation of a given situation, the legitimacy of the sacrifice or restriction depends on the legality of the conditions fixing the sacrificing or restricting process. It is thus asserted that restrictive measures are justified only if the exercise of a right is so risky for the rest of the community that the risk cannot be avoided unless an extreme measure is adopted; but, in such a case, the restriction of the exercise of a right is acceptable only if it is provided by the law.

Terrorism is not perceived as a threat posed for the freedom of people to act in democratic terms but as a threat from which people have to set themselves free. Freedom does not mean freedom of action in a democratic society but protection of one or more threatened rights. Hence, the public discourse on freedom becomes a discourse on fear and insecurity in the face of the allegedly forthcoming destruction, and the protection of a freedom defined in such a way serves to justify future counter-terrorism measures. In other words, freedom does not refer any more to civil rights and liberties but legitimates the very restriction of these civil rights and liberties. People should accept these restrictions of their freedoms simply in the name of protection of their freedom from fear.

Dr Fawad Kaiser is a member of the Diplomate American Board of Medical Psychotherapists Dip.Soc Studies, Member Int’l Association of Forensic Criminologists, Associate Professor Psychiatry and Consultant Forensic Psychiatrist at the Huntercombe Group United Kingdom.