The end of the
twentieth century has been called the era of terrorism. Terrorism is not a
recent phenomenon. It has existed in all the ages. Terrorism has spread its
tentacles everywhere in every sector of the society. Terrorism has taken the
shape of such menace which threatening the very existence of a civilized
society. Terrorism is essentially a faceless and a bodiless phenomenon. The
rule of law is predictable but rule of terror is unpredictable.[1]
Terrorism poses a challenge not only to the state power but also to the
national security. Terrorism is one of the serious problems faced by the world
today and holds the democratic institutions at ransom. The attack on 11
September 2001 on the World Trade Center in New York City, attack on tourist
facilities on Bali in 2002, on commuter trains in Madrid in 2004, suicide
bombings in London in 2005 and attack on the Taj hotel in Mumbai on 26 November
2008 all demonstrate the continuing threat that terrorism can pose. The
perpetrators have come from all walks of life and have used a variety of deadly
and diabolic weapons to carry out their plans. Whatever their origins and their
methods, however, the outcomes are the same: the injury and death of innocent
people.
The American
“War on Terrorism” has many successful stories. The then American President
George Bush from zero ground of World Trade Center of New York on September 14
2001 after terrorist attack, He said to terrorist “I can hear you; the rest of
the world hears you. And the people who knocked these buildings down will hear
all of us soon.”[2] Further
his request of cooperation from other nations was in the tune of imperialism
“Either you are with us or with them.”[3]The
Bush government’s policies of Self-defense on terrorist led to fall of Taliban
regime in Afghanistan .[4]
Expansion of his doctrine of self-defense to preemptive self-defense led
defeat of Saddam Hussein’s regime in Iraq .[5] On
14 December 2003, Saddam was captured in operation “Red Dawn” and spokesperson of USA
announced, “We got him.”[6]
The biggest man haunt ever known in the history of humankind in terms of
economic, time, use of intelligence and equipment's and networks, and use of
police or military personal which started in the year 2001 came to an end, when
the seal command of USA military gunned down the notorious and hardcore
terrorist Bin Laden in his house in Abbott-bad of Pakistan in the early hours of
May 2, 2011, in operation of “Neptune
Spear” thereafter President Barrack Obama addressed the USA and announced,
“We killed him”.[7]
Overwhelming happy American people felt at last ‘Justice’ is done to those 3000
people who were killed in the horrible attacks of terrorist on various parts of
US on September 9, 2001. US is successful even in toppling the Col Muammar
Qaddafi government in Libya who was supporting the terrorists to attack
America, with NATO forces, encasing on uprising of democracy movements in Arab
World and Qaddafi was executed in cold blooded.[8]
On the other
hand, the darker side of the American war on terror has been not properly
communicated around the world. The liberty statue in the heart of New York City , which is symbol of American’s commitment to
values of civil and political rights, is undermined by the means adopted in the
war on the terror by the Bush regime, particularly in the light of Guantanamo Bay
detention camp in Cuba .
Norms applied to the Guantanamo
Bay detention camp
grossly and blatantly defied the American Constitution, which is known for its
Rule of law and Bill of Rights. Guantanamo is an
insult to human civilization and American values, but it is survived as prison
for nearly a decade largely because successive US administrations have peddled the
myth that its cell blocks are vital front line in the global war against terror.[9]
This Myth has been now exploded by the release and publication of more than 700
official Pentagon documents by the Wilileaks.[10]
Therefore, it is difficult to distinguish between the terrorist and Bush regime
because both believed ends justify the means. Detainees of Guantanamo Bay
have fought long drawn legal battle from 2001 to 2008 to acknowledge their
human rights by American government through lower court to higher court of USA
legal system. Finally the Supreme Court of USA in Lakhadae Boumediene v. Geroge Bush President of the United States
by 5-4 majority held that the prisoner of
Bay camp are having right to habeas corpus under the United States
Constitution and that the Military Commission Act of 2006 (MCA) was
unconstitutional which has suspended the
right of habeas corpus.[11]
American Constitution is the second
oldest and shortest in the universe.[12]
American Constitution is highly influenced by the Locke’s philosophy of Natural
Rights.[13]Therefore,
USA Congress incorporated the Human Rights in the Constitution by first ten
amendments that are known as Bill of Rights.[14]The
Fifth Amendment is most important because it says person’s life, liberty or
property would not be deprived without due process of law. The history of the
Bill of Rights clearly showed that the authors of the amendments intended to
apply only to federal laws but not to state laws.[15]
In Barron v. Mayor and City Council of Baltimore, USA Supreme Court held that
none of the first ten amendments could apply to the state governments because
the history of the Bill of Rights supported their application only to the
activities of the newly formed central governments.[16]
The Supreme Court’s interpretation in Dred
Scot v. Stand Ford,[17] that the Black Slaves were not citizen of USA and they were properties of their master led
to the civil war in America .
The end of civil war promoted the House of Congress to apply “due process
clause” to state laws also. Therefore, 14th amendment was done to
the USA Constitution of which section one says “… nor shall any State deprive
any person of life, liberty, or property, without due process of law….” Since
1934 there has been a steady process of judicial inclusion of provisions of the
Bill of Rights into the fourteenth amendment. Finally, Incorporation of all Bills
Of Rights into 14th Amendment was completed in the year 1968.[18]Due
Process of Law is concept of Common Law, which became explicit statutory
concept in USA’s Constitution.[19]
Due process is the principle that
the government must respect all of the legal right that is owed to a person
according to the law. Due process holds the government is subservient to the
law of the land and protects individuals from the state. Due process is either
procedural or substantive. Procedural due process determines whether government
entity has taken an individual’s life, and liberty without the fair procedure
required by the statute.[20]
It may involve the review of the general fairness of a procedure authorized by
legislation. When a government harms a person without following the exact
course of the law it constitutes a due process violation that offends against
the rule of law. Substantive due process means that the judicial determination
of the compatibility of the substances of a law with the Constitution. The
Court is concerned with constitutionality of the underlying rule rather than
the fairness of the process of the law.[21]Therefore,
every form of review other than that involving procedural due process is a form
a substantive review. Due process in this sense judges instead of legislator
may define and guarantee fundamental fairness, justice, and liberty. This
interpretation has been proven controversial, and is analogous to the concepts
of natural justice. This interpretation of due process is some times expressed
as a command that the government shall not be unfair to the people. Various
countries recognize some form of due process under their legal system but
specifics are often unclear. The process of government, which deprives a
person’s life and liberty, must comply with the due process clause. However,
the “Due Process” is not term with a clear definition and the nature of the
procedure clause depends on many factors.
Largely
the following ingredients are considered as part of due process of substantive
and procedural in respect of criminal justice system.
- Adversary process is best method to safeguard the interest of accused.[22]
- Adequate notice of charges to the accused.[23]
- Neutral or impartial Judges of Court or Tribunal.[24]
- Accused is presumed to be innocent until the prosecution proves his guilt beyond reasonable doubt.[25]
- Trial Right to Jury.[26]
- Right to speedy and public trial.[27]
- An opportunity to make oral representation before the Judges or Jury.
- An opportunity to present evidence or witness.
- Right to confront and cross-examine the witness.[28]
- Right to compulsory process of witnesses.[29]
- Right to pre-trial discovery of evidence.[30]
- Right to transcript of the proceedings in the language of accused.
- Right to be represented by an Attorney of accused choice.[31]
- Right not to deny the excessive bail and punishment shall not be cruel.[32]
- No accused shall be witness against himself.[33]
- Right not to be punished twice for the same offence.[34]
- Ex post facto law. No retrospective effect of criminal law.[35]
- Decision of Court must be supported by the reasons, i.e. speaking order.
- Right to appeal against the error of judgment.
Whenever the USA government violates the above rights of
accused, the accused is at liberty to seek the justice form the court. Further,
section 9 of Article 1 of USA Constitution says that writ of Habeas Corpus
shall not be suspended except in cases of rebellion or invasion of the public
safety.
America’s war on
the terror began after the horrifying incidence of 9/11 attack on various parts
of USA by Bin Ladden’s Al Queda terrorist organization. The Security Council (SC)
took swift and unprecedented action in the wake of the events of September 11
2001. The SC felt that it was necessary to offer the United States a stronger
form of support than sympathy. Accordingly, it recognized in its 1368
resolution the inherent of individual state or collective self-defense in
accordance with the Charter.[36]The
SC regarded the attacks of September 11 as threats to international peace and
security, but it did not call for collective action. By invoking a state’s
right to self-defense, it handed over this responsibility to individual states
because United Nation (UN) was aware of its limitations. The US and UK
gave notification to SC of action of self-defense against the Taliban régime of
Afghanistan and war in Afghanistan
began on 7th October 2011. Armed forces of US, UK and the Afghan
United Front (Northern Alliance) launched “Operation Enduring Freedom.” [37]
The Guantanamo Bay is part
of Cuba but the United State assumed territorial control over the Southern
portion of Guantanamo Bay under 1903 Cuban-America treaty which granted
perpetual lease of the area.[38]
The US by virtue of its
complete control maintenance ‘de-facto’
sovereignty over the territory and Cuba retains the de-jure
sovereignty. The Guantanamo Bay detention camp is detainment and interrogation
facility for the danger terrorist captured in Afghanistan and Iraq by the US which
is established in 2002 by the Bush Administration.[39]
The facility is often referred as Guantanamo ,
G-Bay or Gitmo. The justice
department has deliberately advised the Bush Administration to establish
detention camp at G-Bay because it could be considered as outside the USA’s
court legal jurisdiction. The Bush Administration asserted that detainees were
not entitled to any of the protections of the Geneva Conventions. The first
20-captured terrorist arrived at Guantanamo
on January 11 2002. Since October 7, 2001, when the war in Afghanistan has begun nearly 775,
detainees have been bought to the G-Bay camp, which were described as the
“worst of the worst terrorist”. Of these most have been released without charge
or transferred in their countries. As on 30 April 2013, nearly 100 prisoners
are still languishing in Guantanamo Camp.[40]
Military Tribunals or Commissions in USA .
Courts martial generally has the
jurisdictions over the members of their own military and some times, civilians
present with them. Court martial by and large comply the essential feature of
judicial proceedings. A military tribunal is a kind of military court to try
members of enemy forces during wartime, operating outside the scope of
conventional criminal and civil proceedings. Military tribunal or commission is
distinct from court martial. A military tribunal or commission is an
inquisitorial system based on charges brought by military authorities,
prosecuted by a military authority, judged by military officers, and sentenced
by military officers’ against a member of
alien force.[41]The
USA has history of custom to
prefer the military commission than court martial to try the enemies during the
times of declared war or rebellion. General George Washington used military
commission during the American Revolution. President Franklin D Roosevelt
ordered military commission for eight German prisoner accused of planning
sabotage in the USA as part
of Operation Pasrotuis, which was upheld by the US Supreme Court in Ex prate Quirin.[42] George
Bush passed the executive order to establish the military commissions to try
the terrorist who are non-citizen of USA
captured in the Afghanistan
and Iraq
on 13 November 2011.[43]No
doubts the military commission provides speedy justice but not free form blames.
Proceedings of military commission do not satisfy the protections guaranteed
under the Bill of Rights of USA Constitutions. Accused are held in detention
for indefinite period without trials. Trials are held in secrecy. Judges,
prosecutors and witness are from military authority. Not all evidence would be
revealed to accused and heresy evidence is admitted. Accused would not be given
meaningful right to defend, accused is presumed to be guilty than innocent and
standard of proof of the guilt is always below par. Decision of military
commissions is never in the form of speaking order. In spite of these serious
flaws, American Presidents have not stopped using the military commissions and
USA Congress has also supported the Presidents by enacting Military Commission
Act of 2006 and 2009, which authorizes him to establish military commissions.
Legal challenges to Guantanamo Bay
detention camp.
The detainees had to
knock the doors of the U.S courts several times to challenge the strategy
adopted by the Bush administration in combating the terrorism. The detainees
have fought hard legal battle nearly about 8 years to force the US
administration to acknowledge their human rights and justice. There are nearly
four historical cases on these matters. The Bush administration had made up
mind that the detainees of non-citizen of USA
at Bay Camp are “Enemy combatant” or “Unlawful Combatant” and they do not
deserve the protection of Vienna Convention of War. Military Commission adopted
the arbitrary procedure, which has blatantly defied the all norms of due
process clause. In Rasul v. Bush,[44]
voluntary organization filled two Habeas Corpus petitions challenged the
indefinite detention of detainee, not conducting the trial, not informing the
charges to detainees and not providing access to their counsel. The major issue
before the Supreme Court of US, whether U.S courts could exercise the
jurisdiction over the Guantanamo Bay detainee camp. On 28th June
2004, the US Supreme Court by 6-3 majority answered affirmatively. Justice
Johan Paul Stevens who wrote majority judgment held that detainee at Bay Camp
are entitled to seek the assistance of US courts to issue writs to get justice.
Terrorist Rasul was British citizen challenged his detention before the
Washington, D.C., District Court, and court dismissed petition on the ground
that the US courts do not have jurisdiction over the Guantanamo Bay Camp
because it is not the Sovereign territory of USA. District Court relied on the
judgment of Johnson v. Eisentrager, in which the Supreme Court
has ruled that U.S Courts had no jurisdiction over the Germans war criminals
held in a U.S. administered German prison. An appeal was filled in the Court of
Appeals for the District of Columbia Circuit of United States and court
affirmed the decision of lower court.[45]
The case came before the Supreme Court by way of appeal. Government argued that
according to treaty, U.S has “complete jurisdiction” but Cuba has “ultimate jurisdiction” of
dejure. Hence, the courts have no jurisdiction. On the other hand, detainee
argued that whatever treaty might say the fact that U.S has full legal control
over the camp and hence courts should have jurisdiction. Justice Stevens
distinguished the present case from the Eisentrager,
held that U.S for all practical purpose has complete jurisdiction and Cuba ’s
mere technical sovereignty jurisdiction does not disqualify the U.S courts from
exercising the jurisdiction.
Yaser Hamdi captured in Afghanistan
and detained in Bay camp without trial for indefinite period who was later
found to be citizen of USA. His father-filled petition of habeas corpus before
the court of Eastern District of Virginia, which held that Hamid detention was
inadequate because it was based on hearsay. The court ordered production of
secret numerous documents for camera review. The government appealed to Fourth
circuit court of appeal, which reversed the lower court order and held that it
is not proper for any court to hear a challenge of enemy combatant status of
detainee. An appeal was made before the Supreme Court. U.S. Supreme Court
consisting of 9 judges’ bench in Yaser
Esam Hamdi v. Donald Rumsfeld, recognized the power of the
government to detain enemy combatant but ruled that detainee who are the
citizens of USA must have the ability to challenge their enemy combatant status
before an impartial tribunal.[46]
Justice O Connors who wrote majority judgment said due process requires that
Hamdi must have meaningful opportunity to challenge his enemy combatant status
before the impartial military tribunal and Hamdi undoubtedly has the right to
legal counsel in such proceedings. The courts need not interfere with such
findings of military tribunals. The issue and judgment was related to the
detainee of USA citizen.
Nevertheless, the government conceded that these privileges would be extended
to all detainees. The Department of Defense of USA established the “Combatant
Status Review Tribunal” (CSRT) to determine the status enemy combatant of each
detainee and allowed the right to legal counsel from the advocate panel
prepared by government based on Supreme Court guidelines.
Detainee Treatment Act of 2005.
Not a single terrorist was convicted
by the military commission even by the end of 2005 which has commenced in the
November 2001. In April 2004, picture of abuse of Iraqi prisoner by U.S troops
in Abu Gharib prison surfaced.[47]Moreover,
the credible evidences are emerging from different sources in the newspapers
about the gross human rights violation and torture in Bay Camp.[48]
The Abu Gharib and Bay detainee camp scandal intensified public outcry and
criticize the tactics and legal justification used by Bush in executing the war
on terrorism Further, Supreme Court has empathetically asserted that US courts
have jurisdiction over the Bay Camp and even it is leaning towards interference
in the proceedings of military commission to protect the detainees. Bush’s war
on terror is almost converted into legal war between human right organizations
on behalf of detainees and government. USA Congress wanted to control the
damage by prohibiting the unethical means of interrogation of terrorist to
boost its nation image of pro-civil rights. On the other hand, Bush wanted to
restrict the interference of US courts in the matters of military commission
proceedings in the terrorist trials. The US Congress passed the Detainee
Treatment Act of 2005, which was signed by the Bush on December 30 2005. The
Act has established improved standard for detainee’s treatment and
interrogation techniques and it prohibited the use of cruel, inhuman and
degrading (CID treatment) tortures.[49]
Critic of this Act is that it explicitly restricted the jurisdiction of US
courts to entertain the writ petition of Habeas Corpus by the detainees. The
Act has authorized only the U.S Courts of Appeals for District of Columbia
Circuit to hear the appeals for detainee to review the final decision of CSRT
and final decision of Military Commissions.[50]The
jurisdiction of U.S Supreme Court is excluded in the matters CSRT and Military
Commissions findings.
Salim Ahmed Hamdan a citizen of
Yemen and bodyguard of Bin Laden was first person to be tried before the
military commission established by the Bush regime. Hamdan filed writ petition of Habeas Corpus
before the District Court of Columbia on the ground that establishment of
military commission is unconstitutional, violation of Geneva Convention of War
and the United States Uniform Code of Military Justice. The Geneva Convention
of War gives protection of certain rights to the soldier captured in the war
and US Uniform Code of Military Justice prescribed minimum procedure, which has
to be followed by the military tribunals. Judge James Robertson of District
Court of Columbia ruled in favour of Hamdan by holding establishment of
military commission was not proper. On appeal by the government, Appellate
Court of District Columbia upheld the legality of military commission on the
following grounds,
- Military Commissions are legitimate forms to try enemy combatants because Congress has approved them.
- The Geneva Convention is a treaty between nations and it does not confer individual rights.
- Under the terms of the Geneva Convention, Al Qaeda and its members are not covered.
Hamdan filed appeal to the Supreme
Court. In Salim Ahmed Hamdan v. Donald Rumsfeld, U.S. Supreme Court on
June 29, 2006 by 5-3 majority held that establishment of military commission
without authorization by the Congress legislation is ultra virus.[51]
The military commission constituted on the executive order and did not comply
with the US’s Uniform Code of Military Justice and Geneva Convention of War.
Justice Johan Paul Stevens wrote majority judgment and dismissed the government
plea that jurisdiction of SC is debarred because of Section 1005 of Detainee
Treatment Act of 2005. Court asserted that it is duty of Supreme Court to
enforce the Constitutional rights of human being so its jurisdiction cannot be
excluded but it did not say any thing about the constitutional validity of that
section. Court opined that President’s executive power to establish military
commissions must be in accordance with “Laws of War” otherwise those tribunals
must be created by the authorizations of the Congress legislation. In this
case, the military commissions did not comply with the norms of US’s Uniform
Code of Military Justice (UCMJ) and Geneva Convention of War. Article 36(b) of
Uniform Code of Military Justice requires that proceedings before
court-martials and military commissions must be uniform as far as possible. The
court observed that military commission must observe minimum protection given
under Article 3 of the Geneva Convention. The Bush regime’s military
commissions violated both these conditions. Therefore, their establishment
merely on the executive order is unconstitutional.
The US Congress decided that Bush’s
war on terror should not be letdown. Therefore, Congress with majority in
senate by 65 to 34 and in House by 250 to 170 passed the Military Commissions
Act of 2006, which was signed by the President Bush on October 17, 2006.[52]
The Act authorized the President to establish the military commissions to try
alien unlawful enemy combatant engaged in hostilities against the United States .[53]
The Act provided some protections to terrorist in the proceedings before the
military commissions but provisions related to speedy trial, protection against
self-incrimination, and protection of pre-trial investigation of Uniform Code
of Military Justice explicitly not made applicable to military commissions.[54] The
norms of UCMJ in Toto were not incorporated in the Military Commission Act.
Further, it explicitly stated that, No-alien unlawful enemy combatant who is
subject to trial by military commission would get the protection of the Geneva
Convention of War.[55]
MCA being retrospective effect has jurisdiction to try the offences committed
by enemy unlawful combatant before, on, or after September 11, 2011.[56]This
gives wide discretionary power to military commissions to try any terrorist
committed offences at any time. The misery and nightmare of US citizen terrorist ended because it is
applicable to only non-citizen of USA .
Most controversial aspect of the MCA is it revokes the U.S. Courts
Jurisdictions to hear Habeas Corpus petitions by all alien in U.S Custody as
enemy combatant which reads as,
No
Courts, justice or judge shall have jurisdiction to hear or consider an
application for a writ of Habeas Corpus filed by or on behalf of an alien
detained by the United States
who has been determined by the United States to
have been properly detained as an enemy combatant or is awaiting such
determination.[57]
Whatever the inroads made by the
U.S Supreme Court in protecting the right of terrorist is undone by the MCA of
2006. Now the U.S. Congress is also standing behind Bush as rock and
overwhelming Bush commented that
Today, the
Senate sent a strong signal to the terrorist that we will continue using every
element of national power to pursue our enemies and to prevent attacks on America .
The Military Commissions Act of 2006 will allow the continuation of a Central Intelligence
Agency (CIA) program that has been one of America’s most potent tools in
fighting the “War on Terror”.[58]
The war of legal battle
between terrorist and U.S Administration did not seem to end soon because of
the intervention of MCA. Naturally, Lakhdar Boumediene, detainee of Bay camp,
who is citizen of Bosnia and
Herzegovina , filed writ petition before the
U.S Supreme Court challenging the constitutional validity of MCA. On June 12,
2008, the U.S Supreme Court in Boumediene
v. Bush, held that section 7 of MCA
of 2006 is unconstitutional.[59]
Justice Kennedy delivered majority judgment by 5-4 asserted that United States
by virtue of its complete jurisdiction and control, maintains “de facto”
sovereignty over the Guantanamo Bay Camp therefore the aliens detained as enemy
combatant on that territory are entitled to the writ of habeas corpus protected
in Article 1, Section 9 of the US Constitution. Court opined that only
Rebellion or Invasion of Public Safety could suspend the writ of Habeas Corpus,
which is not in this case. The court declared that except section 7 remaining
sections of MCA is constitutional.
By this time, most of the
detainees were realized and as on may 2011, only 171 detainees are in Bay camp[60]and
intensity of Bay Camp has boiled down.
President Barrack Obama during his Presidential election said Guantanamo
Camp is sad chapter in American history.[61]On
22 January 2009, White House spokesperson announced that detention facility
would be shut down within year. Congress of USA enacted the Military Commission
Act of 2009 on October 28 2009 and replacing MCA of 2006, which made
reformations and provided more protections to the detainee in the proceedings
of the military commissions. Congress strongly opposed closure of camp and
pressurized the President Obama to sign Defense authorization Bill on Jan 7
2011, which prevented the transfer of detainee to mainland or other foreign
countries, and thus it effectively stopped the closure of detention facility. President
Obama even after his second term election as President could not succeed in closing
down the Guantanamo Camp. Still around 100 detainees are languishing in the
camp even after lapse of 12 years since their arrest without trial.
Conclusions.
The fight against terrorism cannot be used an excuse for
slackening efforts to put an end to conflicts and defeat poverty and disease.
Nor can it be an excuse for undermining the bases of the rule of law—good
governance, respect for human rights and fundamental freedoms. The long-term
war on terrorism requires us to fight on all these fronts. Indeed the best
defense against these despicable acts is the establishments of a global society
based on common values of solidarity, social justice and respect for human
rights.
-----Kofi A. Annan, October 2001.[62]
The
International community outraged and stunned when the credible evidence of
transgression of human rights in Bay Camp by the authority started surfacing.
On July 2 2008 the International Herald Tribune revealed that U.S. military authority has used
the Chinese Communist torture technique which used by Chinese in Korean War to
obtain the coercive confessions. Military authorities have abused the religion
of the detainees by disrespecting the Qur’an, tearing the Quar’an, writing and
commenting on Qur’an in front of the detainees.[63] Guantanamo officials have reported 41 unsuccessful suicide
attempts by 25 detainees since the U.S. began taking prisoners to the
base in January 2002.[64]
On June 10 2006 Pentagon authority announced that three detainee were committed
suicide.[65]Amnesty
International organization alleged that attempt to suicide by detainee are the
result of years of arbitrary and indefinite detention.[66]
Forced feeding accusations by hunger-striking detainees’ began in the fall of
attempt to suicide. Detainee said large tubes were forcibly inserted in their
noses and stomachs, with guards using the same tubes from one patient to
another.[67] Human
Right Watch in its paper presentation before 59th session of UN’s
Commission on Human Rights described that the detainee originally held in
open-air facilities with chain link wall until moved to newly constructed
facility, their they spend twenty four hours in small single prison cells,
except for two fifteen minute periods of solitary confinement including
interrogation session.[68]
As early as January 2002, reports about the situation of detainees held at
Guantanamo drew the attention of the standing Special Reporters of the UN
Commission on Human Rights to report regularly on torture. When credible
reports and evidence generated about pathetic conditions of detainees of Gauantanamo Bay the General Assembly went on record
“deploring the occurrence of violations of human rights and fundamental
freedoms in the context of the fight against terrorism.”[69]
The UN Commission of Human rights
issued a sharply critical report in early 2006 that stated, “The continuing
detention of all persons held at Guantanamo Bay amounts to arbitrary detention
in violation of article 9 of ICCPR”. Called on Washington
to “either expeditiously bring all Guantanamo
Bay detainees to trial,
in compliance with articles 9, paragraph 3, and 14 of ICCPR, or release them
without further delay”, and insisted on prompt closure of the facility.[70] United
Nation “seemed more worried about counter terrorism measures than about
terrorism itself” was the early reaction of USA to the UN’s attempt to
highlight the pathetic situation of detainees in Gauantanamo Bay.[71]What
guiding rules or principles should constitutional democracies follow in their
efforts to combat terrorist violence? Walter Schwimmer then the Secretary
General of the Council of Europe said Terrorism must be defeated with the
utmost vigour. However, not any cost, certainly not at the cost of the
fundamental values we have learned to cherish in tragic times and have placed
at the very centre of our collective functioning.[72]
Society is willing to defend itself efficiently but not any cost. History
taught lesson to us that if community allow excessive state violence,
arbitrariness, contempt of law, discrimination,
community not only risk shaking the pillars of the democratic societies
that painstakingly emerged from the World War II and from the end of
communalism, community also risk feeding terrorism or increasing the
understanding and support for terrorism.[73]
Draconian type of anti-terrorist
laws leads for State terrorism that would ensures the victory for terrorist.
Terrorist theoretically see it as major aim to force government to pass the
increasingly server laws. This victory will be enhanced if the legislation is
operated in such way as to alienate that part of the community, which the
terrorists claim to represent. If that happens, they will not only be likely to
gain increased support from the within community, they will be assisted to
project themselves as its legitimate protectors.[74]The
need to respect human rights is in no circumstances an obstacle to the efficient
fight against terrorism. On this subject, the General Assembly has passed
number of resolutions at appropriate time providing and reminding the legal
framework of human rights while combating terrorism by state. General Assembly
resolutions under the title of “Measure to Prevent the International Terrorism”
had requested the States to observe the human rights other wise its gross abuse
would provide fertile ground for breeding the terrorism.[75]General
Assembly cautioned the enthusiastic States at regular time that in the process
of combating terrorism they must not overstep their authority by remanding
their obligation to respect the international standard of human rights under
the resolutions titled as” Measures to eliminate international terrorism”.[76]
General Assembly adopted another
series of resolutions for the protection of human rights under the headings of
“Protection of human rights and fundamental freedoms while countering
terrorism”.[77] Unique
feature of these resolutions that certain human rights are recognized as
non-derogable under any circumstances in accordance with the article 4(2) of
the International Covenant on Civil and Political Rights.[78]Terrorist
violate human rights, including the right to life. Suspected terrorist often
claim respect for their human rights-some of the very same rights they have
violated themselves in their acts. This raises the question whether terrorist
too should be allowed to enjoy rights. The answer is ‘yes’. People accused of
terrorist acts have human rights. That is exactly difference between a
situation of the Rule of Law and situation where law is arbitrary.[79]
Do they have the same rights as victims? Again, the answer is “yes”, although
this might go against our own feelings of justice.[80]
State can derogate from certain
human rights during an emergency. Nevertheless such extraordinary measures
should be limited in scope and time. Steam and broad repressive measures
alienate large sectors of society from the government and tend to produce new
recruits for terrorist organizations.[81]Terrorists
know very well that overreaction by government to their provocative attacks can
play into their hands.-though at times, overreaction has also led to the
elimination of terrorist organization. In the words of the Secretary-General
“While
the international community must be resolute in countering terrorism, it must
be scrupulous in the ways in which this effort is perused. The fight against
terrorism should not lead to the adoption of measures that are incompatible
with human rights standards. Such developments would hand a victory to those
who so blatantly disregards human rights in their use of terror. Greater
respect for human rights, accomplished by democracy and social justice, will in
the long terms prove effective measures against terror. The design and
enforcement of means to fight terrorism should therefore be carried out in
strict adherence with international human right obligations”. ,[82]
United Nations organs have
reaffirmed repeatedly that terrorist acts are unjustifiable under any
circumstances, wherever and by whomever committed. Nevertheless, the major
standard-setting achievements of the UN in the field of human rights and
numerous pronouncements of its organs teach that human right violations are
also unjustifiable under any circumstances, wherever and by whomsoever
committed.
ß
S.G.Goudappanavar, LL.M. Associate Professor, gouri1000@gmail.com S.C.Nandimath Law
College , Bagalkot,
Karnataka.
[1] Justice
Eswara Prasad, “Forfeiture of property-Terrorism and other crimes” journal 2005
Cr L J P.70.
[2] www.en.wikiquote.org/wiki/Gerpge_w_Bush.
Accessed on 15 October 2011.
[4] Security
Council Resloution 1368 of September 2001, Article 51 of Charter of United
Nation.
[5] The
National Security Strategy of the United Nations of America document issued by
White House on, 17 September 2002.
[6] www.en.wilipedia.org/wiki/Saddam_Hussein.
Accessed on 15 October 2011.
[7] www.whitehose.gov/blog/2011/05/02/osmon-bin-laden-dead.
Accessed on 15 October 2011.
[8]
“The Killing of Qadhafi”, Editorial, The Hindu, Hubli (Ed.), 22 October 2011.p.12.
[9]
“America’s shameful secret Wiki leaked”, Editorial, The Hindu, Hubli, (Ed.),
April 28 2011.p.10.
[10] Ibid.
[11]
553 U.S.
723 [2008].
[12]
Draft of American Constitution was finalized on 17th September 1787
and nine states ratification is required to commence the Constitution
operation. By July 26 1788 eleven states were ratified the Constitution and
Constitution was made functional on 13th September 1788. Originally
USA Constitution contained only seven Articles but now it contained 33 Articles,
it means 26 Articles are added by way of Amendments. The last 26th
Amendment to the Constitution was done in the year 1971.
[13] Great
political philosopher Locke who propagated the idea that person’s “Property
Rights” were inalienable and cannot be deprived by the government without the
consent of the person. The property rights are the gift of nature, therefore government
should make effort to promote property rights rather than its restriction and
destruction. The concept of “Property Right” includes life, liberty and
property. See, Edgar Bodenheimer, ,Jurisprudence,
(Delhi: Universal Law Publishing Co.Pvt.Ltd, 2001) .p.50
[14]The
first ten amendments came into effect on 3November1791.However only first
eights Amendments talked about the protection of human rights.
[15]Johan
Nowak, Constitutional law, (St Paul
Minnesota:St paual Minn, west publishing Co, 1978),p.387.
[16]
32 U.S. (7 Pet.) 243 [1833].
[17]
60 U.S. (19 How.) 393([1857).
[18] Duncan v. Louisiana,
391 U.S.145 (1968).
[19]The
word “Due Process” in the V and XIV amendment of USA is traced form section 39th
of Magna Carta, which was personal treaty between king Johan and the enraged
upper class created in 1215. “Due” means, “what is just and proper”. Section 39th says, “No freeman
shall be taken and imprisoned or disseized or exiled or in any way destroyed,
nor will we go upon him nor send upon him, except by the lawful judgment of his
peers and by the law of the land.”[19] In
1225, Henry III altered that section and became final form of Magna Cart. The
official phase of “Due process of Law” was probably first time used in 1354,
see, Mott, Due Process of Law, (New
York: Da Copa Press.1973).p.3.
[20]
Johan E Nowak, op. cit., p.381.
[21]. Ibid.
[22] Ibid.
[23]
VI amendment of USA Constitution.
[24] Ibid.
[25] Mullaney v. Wilbur, 421 U.S. 684 (1975).
[26] V
amendment of USA Constitution. Duncan
v. Louisiana, 391 U.S. 145(1968).
[27]
See, VI amendment of USA Constitution. Klopfer
v. North Carolina, 386 U.S. 213 (1967).
[28]
See, VI amendment of USA Constitution. Pointer v. Texas 380 U.S. 400 (1965).
[29]
See, VI amendment of USA Constitution. Washington
v. Texas, 388 U.S. 14 (1967).
[30] Jencks v. United States, 353 U.S. 657 (1957).
[31]
See, VI amendment of USA Constitution. Powell
v. Alabama, 287 U.S. 45 (1932).
[32]
See. VIII amendment of USA Constitution.
[33]See,
V amendment of USA Constitution. Malloy
v. Hogan, 378 U.S. 1 (1964). Miranda v. Arizona , 384 U.S.
694 [1966].
[34]
See, V Amendment of USA Constitution. Benton v.
Maryland, 395 U.S. 784 (1969).
[35]See,
Section 9 and 10 of Article 1 of USA Constitution. Lindsey
v. Washington, 301 U.S. 397 (1937).
[36]
SC/RES/1368 of 12 September 2001.
[37] www.en.wilipedia.org/wiki/war/_in_Afghanistan_[2001-present].
Accessed on 31 October 2011.
[38] www.en.wikepedia.org/wile/Guantanama_Bay.
Accessed on 25 October 2011.
[39] www.en.wikipedia.org./wiki/Gauntanamo_Bay_detention_camp.
Accessed on 25 October 2011.
[40]CNN News
on 30 April 2013, BBC News on 30 April 2013, Al Jazeera English News on 30 April 2013.
[41]www.en.wikipedia.org/wiki/militry_tribunal_in_the-unitedstates//jursduction.Accessed,on25
October 2011.
[43]“Military
Order-Detention, Treatment and Trial of Certain Non-Citizens in the War against
Terrorism.” Executive order dated November 13, 2011, 66 Fed, Reg, 57833.
[44] 542
U.S. 466 (2004).
[46]
542 U.S.
507 [2004].
[47]CBS
broke the story on April 28 2004 on its show 60 minutes II. Court martial in Iraq ,
CBS television broadcast on April 28 2004.
[48]Initially
the detainees were held in captive in open prison facing the mercury and laying
on the naked surface of the ground, their legs and hands were chained for all
the twenty-four hours, even it was not taken off during their meals, they were
beaten, assaulted, battered, tortured for getting information, when detainees
were on hunger strike to protest for their treatment, they were forcibly fed
liquid food by tube which was causing considerable pain to detainees.,
detainees were not allowed to write or
receive letter or interact or meet with their relatives. See, “Amnesty
international Guantanamo Bay Scandal”, http//www.amensty.org/pages/guantanamobay-index-eng.
Accessed on Jan 22 2006.
[49]
Section 1002 and 1003 of Detainee Treatment Act of 2005.
[50] Section
1005 of Detainee Treatment Act of 2005.
[51] 548
U.S. 557 (2006).
[52] www.en.wikipedia.org/wiki/Militray_Commission_Act_of_2006.
Accessed on 5 November 2011.
[53]
Section 948b of Military Commissions Act of 2006.
[54]
Section of 810, 831, and 832 of Uniform Code of Military Justice under chapter
47 read with 948b of Military Commissions
Act of 2006.
[55]
Section 948c of Military Commissions Act of 2006
[56]
Section 948d of Military Commissions Act of 2006
[57]
Section 7 of the MCA of 2006.
[58] www.en.wikipedia.org/wiki/Militray_Commission_Act_of_2006.
Accessed on 5 November 2011.
[59]
553 U.S. 723 (2008).
[60]
Sky News on 19 may 2011.
[61]
Brude Mary, “Obama:Gitmo likely won’t close down in first 100 days”, ABC News
on Jan 11 2011.
[62]
UN Press Release, SG/SM/7999 AFR/344, October 22 2001.
[63]
“Religious abuse at Guantanamo ”
BBC on 16 April 2007.
[64] www.en.wikipedia.org./wiki/Gauntanamo_Bay_detention_camp.
Accessed on 25 October 2011.
[65]
“Triple suicide at Guantanamo Camp” BBC on June 11 2006.
[66] www.amnesty.org. Accessed on 7 November
2011.
[67] “Guantanamo detainee pleads
to die”, Aljazeera,net on 18 March 2006.
[68]
http//www.hrw.org Accessed on 7 November 2011.
[69]
GA/RES/ 60/158 of 16 Dec 2005.
[70]Situation
of Detainees at Guantanamo Bay, Commission on Human Rights, E/CN.4/2006/120, 27
Feb 2006.
[71]Jeffery
Laurenti,, “The United Nations and Terrorism”, in Democratic Response to Terrorism, Leonard Weinberg, [Ed.], (New York:
Routledge,2008 ) .p.78.
[72]Wolfgang
Benedek, Anti-Terrorist Measures and
Human Rights, (Boston:Martinus Nijhoff Publishers,2004 ) .p.v.
[73] Ibid. at, p.vi.
[74]Krishna
Mathur, Police, Law and Internal Security,
(New Delhi: Gyan publishing house 1994), pp.111-112.
[75]General
Assembly Resloution No/44/29 of 7 Dec 1987, GA/RES/42/159/ of Dec 1987,
GA/RES/46/51 of Dec 1989, GA/RES/40/61 of Dec 1989.
[76]
General Assembly Resloution No/49/60 of 17 Feb of 1995,GA/RES/50/53 of 11 Dec
1995, GA/RES 51/210 of 17 Dec 1996, GA/RES/52/165 of 15 Dec 1997, GA/RES/
53/108 of 8 Dec 1998, GA/RES/54/110 of 2
Feb 2000, GA/RES/ 59/ 46 of 16 Dec 2004, GA/RES/ 60/ 43 of 6 Jan 2006
[77]
GA/RES/57/219 of 27 Feb 2003, GA/RES/58/187 of 22 March 2004, GA/RES/59/191 of
10 March 2005, GA/RES/60/158 of 28 February 2006.
[78]See,
2nd Paragraph of GA/RES/59/191 of 10 March 2005.
[79]Alex
Schimid, “United Nations Measures against Terrorism and the Work of the
Terrorism Prevention Branch: The Rule of Law and Terrorism”, in, Wolfgang,[Ed.],
Anti-Terrorist Measurers and Human Rights, (Boston : Maritinus Nijhoff Publishers).p.59.
[80] Ibid.
[81] Ibid.
[82] Kofi
Annan, Message to the African Union’s High Level meeting on Terrorism. Algiers , 11 September
2002.
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